State of Tennessee v. Mark A. Schiefelbein ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 14, 2006 Session
STATE OF TENNESSEE v. MARK A. SCHIEFELBEIN
Appeal from the Circuit Court for Williamson County
No. I-1102-427 Russ Heldman, Judge
No. M2005-00166-CCA-R3-CD and
No. M2005-02370-CCA-R10-CO
Filed February 8, 2007
A Williamson County Circuit Court jury convicted the defendant, Mark A. Schiefelbein, of seven
counts of aggravated sexual battery and one count of especially aggravated sexual exploitation of
a minor. The trial court imposed a 12-year sentence for each conviction and ordered consecutive
service, thereby yielding an effective sentence of 96 years. Aggrieved of the convictions and
sentences, the defendant appeals and raises the following issues: (1) the trial court erred by failing
to require the State to furnish discovery materials to the defendant; (2) the trial court committed
reversible error by configuring courtroom seating to shield the public from viewing certain exhibits;
(3) the trial court improperly instructed the jury, sua sponte, to disregard certain truthful testimony
of the defendant; (4) the trial court’s repeated questioning of State’s witnesses created an appearance
of judicial bias and improperly bolstered the State’s case; (5) the trial court committed reversible
error in excluding defense-proffered medical testimony that a physical examination of the victim
rebutted the occurrence of sexual penetration, contact, or injury; (6) the trial court permitted the
introduction of inadmissible and highly prejudicial hearsay and opinion testimony; (7) the trial court
erroneously permitted the State to examine the defendant about his knowledge that a “voice stress
analysis” could detect stress in an individual’s voice; (8) the trial court erroneously instructed the
jury that the defendant could be guilty of aggravated sexual battery if he acted intentionally,
knowingly, or “recklessly”; (9) the trial court erroneously instructed the jury that the State could
prove the mental state for aggravated sexual battery in the disjunctive by showing that the defendant
acted intentionally, knowingly, “or” recklessly; (10) the trial judge should be disqualified from
further involvement in the case; and (11) the defendant’s effective sentence is excessive, illegal, and
unconstitutional. As an adjunct to the issues raised on direct appeal, the defendant also pursues
Appellate Procedure Rule 10 interlocutory review to bar future prosecution of three related child-
rape charges that were severed, over his objection, from trial of the aggravated sexual battery and
especially aggravated sexual exploitation of a minor offenses. After thorough review of the record
and careful consideration of the parties briefs, their oral arguments, and the applicable law, we hold
that none of the errors require reversal of the defendant’s convictions for aggravated sexual battery
or for aggravated sexual exploitation of a minor. However, we hold that the incarcerative 96-years’
sentence is inconsistent with the purposes and principles of sentencing and does not provide a fair
sense of predictability of the criminal law and its sanctions; therefore, we modify the defendant’s
effective sentence from 96 years to 36 years. We order that the trial judge who presided at trial is
disqualified from conducting any further proceedings in this cause. Finally, we dismiss the child-
rape offenses, as improperly severed, and hold that further prosecution on such charges is barred by
principles of double jeopardy.1
Tenn. R. App. P. 3 & 10; Judgments of the Circuit Court are Affirmed in Part as Modified;
Reversed in Part.
JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. GARY W. WADE, P.J., not participating.
David L. Raybin, Nashville, Tennessee (on motion for new trial and on appeal); and Patrick Johnson,
Nashville, Tennessee (at trial), for the Appellant, Mark A. Schiefelbein.
Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
On November 12, 2002, the Williamson County Grand Jury indicted the defendant
on three counts of child rape, see T.C.A.2 § 39-13-522 (2006) (“Rape of a child is the unlawful
sexual penetration of a victim by the defendant or the defendant by a victim, if such victim is less
than thirteen (13) years of age.”), seven counts of aggravated sexual battery, see id. § 39-13-
504(a)(4) (“Aggravated sexual battery is unlawful sexual contact with a victim by the defendant or
the defendant by a victim accompanied by any of the following circumstances: . . . (4) The victim
is less than thirteen (13) years of age.”), and one count of especially aggravated sexual exploitation
of a minor,3 see id. § 39-17-1005 (“It is unlawful for a person to knowingly promote, employ, use,
assist, transport or permit a minor to participate in the performance or in the production of material
which includes the minor engaging in: (1) Sexual activity; or (2) Simulated sexual activity that is
patently offensive.”). All charged offenses involved the same victim.
1
W e remand for clerical correction one of the judgments. See Footnote 3.
2
The definitive style guide for legal citation in the United States is T H E B LU EB O O K : A U N IFO RM S Y STEM O F
C ITATIO N (Columbia Law Review Ass’n et. al. eds., 18 th ed. 2005). The current 18 th edition directs that local citation
rules take precedence over Bluebook rules. For Tennessee, T H E B LUEBOOK references “Tenn. Code Ann. § 1-2-101(a)
(2003) (‘cite as’).” That Code section provides as follows: “This compilation of the laws of the state is to be designated
as the ‘Tennessee Code’ and the annotated edition of the code provided for by chapter 1 of this title shall be designated
as ‘Tennessee Code Annotated’ and abbreviated and cited ‘T.C.A.’” Henceforth, the author of this opinion will employ
“T.C.A.” in citation sentences and citation clauses.
3
The indictment and the judgment list the incorrect code section for this charge. They list section 39-17-105
instead of section 39-17-1005. See T.C.A. §§ 39-17-105 (charge for use of public toilet facility prohibited), -1005
(2006). On remand, the trial court shall amend this judgment.
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On July 7, 2003, the first day of trial, the State moved to sever the three child rape
counts. The trial court granted the motion, over defense objection, and five days later, the jury
convicted the defendant of the remaining charges. Following the sentencing hearing, the trial court
sentenced the defendant to an effective incarcerative sentence of 96 years. The defendant filed a
timely notice of appeal.
Viewed in the light most favorable to the State, the proof at trial showed that B.R.,4
born June 15, 1990, practiced gymnastics at Let It Shine Gymnastics in Franklin, Tennessee, where
she was coached by the defendant. When the defendant opened his own gymnasium, Esprit
Gymnastics,5 in late 2000, B.R. and five other female students left Let It Shine Gymnastics to
continue under the defendant’s tutelage. The defendant referred to these 6 students as his “six pack.”
B.R. testified that she was the defendant’s “favorite” student, and he developed a
close social relationship with B.R.’s family. He regularly joined them for dinner, movies, hockey
games, holidays, and church services. The defendant received Christmas and birthday presents from
the victim’s family, and he bought presents for B.R., her mother, and her younger sister. B.R.
testified that she had received other gifts from the defendant, and her fellow students “start[ed] not
liking [her] and it made [her] sad.”
During the summer of 2001, B.R. practiced gymnastics five days a week, and the
following school year, she practiced four days a week. Typically, B.R. would wake at 6:15 a.m., and
she would attend school from 8:30 a.m. until 3:15 p.m. Afterwards, she would practice gymnastics
for approximately five hours, until approximately 9:00 p.m. when she would go home, complete her
homework, and retire to sleep at 11:00 p.m.
The State’s evidence showed that all of the charged offenses occurred during B.R.’s
practice sessions at the gymnasium between the summer of 2001 and September of 2002. Evidence
described Esprit Gymnastics’s gymnasium and office layouts. The victim testified that the defendant
touched her vagina while she was stretching on the “regular” floor6 and on the rod floor, and he
touched her breasts and made her touch his penis while they were in his office. B.R. explained that
the majority of the touching took place on the rod floor. The rod floor is approximately one foot
higher than the concrete regular floor, and carpet separates it from the concrete. B.R. said, “[I]t’s
. . . a strip of floor[,] and it is very bouncy and easier to tumble on.” B.R. and other State witnesses
4
To protect the identity of minor victims of sex crimes, it is the policy of this court to refer to the victims by
their initials.
5
The trial transcripts incorrectly refer to Esprit Gymnastics as “Espirit Gymnastics.” We will use the correct
spelling “Esprit.”
6
W e glean from the record that the “regular” floor is the large floor marked with boundary lines where gymnasts
perform tumbling and floor exercises.
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testified that a cabinet stood in an opening in the office wall.7 From the parent-viewing area,
individuals could see into the office through this opening if they leaned over the cabinet. The office
also had a door.
B.R. stated that six to seven other students were present without their parents when
the defendant touched her. The defendant stretched the students in a certain order, and he stretched
them behind a purple and white mat. In the beginning, the defendant stretched B.R. first, but then
he started stretching her last. She explained that on some occasions, he would stretch her twice,
before and after the other students. She stated that the defendant would touch her after he stretched
the other students and while the other students performed exercises on the bars and the trampolines.
B.R. recounted that the defendant first touched her vagina, over her leotard, while she
was doing a frog stretch.8 He pressed his hand onto her buttocks during the stretch and placed his
fingers between her legs, onto her vagina. B.R. gave various estimates of the number of times she
was touched. At trial she testified that the defendant touched her in this fashion over her leotard
eight to 10 times. B.R. also stated that he touched her under her leotard during this stretch “a bunch
of times.” She recalled telling Brentwood Police Department Detective Adrian Breedlove, the case’s
lead detective, that the defendant had touched her vagina under her leotard approximately 30 times.
She explained at trial that she was “distraught” during the interview with Detective Breedlove, and
the defendant touched her under her leotard 15 to 17 times.
The defendant also touched B.R.’s vagina and had her pull aside her leotard during
the straddle stretch9 while she was training for level seven10 competitions. She testified that the
defendant told her that he needed to see her vagina so he would know where not to touch her. B.R.
complied because the defendant “gets really mad very easily.” After she would pull her leotard
aside, he then asked to touch her vagina to determine how it felt, so he would not touch her again.
B.R. stated that she allowed him to touch her “[b]ecause he would get angry and [she] was his
favorite and [she] didn’t want him angry at [her].” B.R. and the defendant would then negotiate how
many seconds he could touch her vagina, but he would count very slowly to extend the actual
7
B.R. testified that this opening was “patched . . . up.” During the defendant’s proof, Rob Tallman, a home
builder, testified that the defendant asked him in June of 2002 to fill in the opening. He stated that in late August or early
September the defendant enclosed the opening and asked him to finish the drywall.
8
W e discern from the record that for a frog stretch, a gymnast lies on his or her stomach and puts his or her feet
together. The knees splay to each side of the body, and the goal is for the entire body to be flat against the floor. B.R.
demonstrated this stretch for the jury.
9
W e discern that for a straddle stretch, a gymnast sits with his or her legs in a V-shape. The goal of this stretch
is to have the legs wide and straight to the floor. B.R. also demonstrated this stretch for the jury.
10
B.R.’s mother testified that B.R. began training for level seven in the summer of 2001. B.R. testified that the
sport of gymnastics is organized into 10 levels. Gymnasts begin competing at level four, and as they master harder skills,
they compete at higher levels. The elite level exceeds the tenth level, and at this stage, gymnasts possess the skills
necessary to compete in the Olympic Games.
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touching time. B.R. testified that he touched her with his “pointer finger,” and she mimicked his
finger’s movement for the jury.
During the straddle stretch, the defendant would ask B.R. to rate on a scale of one to
10 how the touching made her feel. At first, B.R. told the defendant “zero because it didn’t feel good
to [her]. It made [her] feel violated.” When the defendant accused her of lying, she provided a
number to prevent him from becoming angry. B.R. explained that the defendant touched her vagina
“basically every time” she did the stretch.
B.R. testified that the defendant routinely videotaped the students’ “tricks,” and he
videotaped B.R.’s vagina twice while she did the straddle stretch. On the first occasion, he told B.R.
that he had an idea that she would hate. Then he asked her if he could videotape her vagina, and she
“finally gave in because [she] didn’t like him being angry at [her].” The defendant directed B.R. to
pull aside her leotard, and he placed the camera on the rod floor, positioned it in front of her, and
videotaped her vagina. After this first videotaping, the defendant claimed that the previous tape
“didn’t turn out” and that he needed to videotape her a second time. He told B.R. that he needed to
move her leotard. At first, she refused, but eventually, she pulled her leotard aside. After she moved
her leotard, the defendant adjusted its position, and B.R. held it in place. The defendant placed the
camera on the rod floor and videotaped himself touching B.R.’s vagina. She testified that his finger
was “shaky.” Sometime later, the defendant assured B.R. that he had destroyed these videotapes.
He told her that he burned the film in a tuna can, and he smashed the remaining plastic parts with
a hammer. He then threw the tuna can and the plastic in the trash.
After Thanksgiving of 2001, the defendant made B.R. touch his penis twice in the
same day. B.R. stated that these incidents occurred in the winter because she remembered the
defendant wearing “black squishy pants,” and he only wore long pants in the winter. She
remembered telling Detective Breedlove that the defendant wore “quilted shorts” when this occurred,
but she testified at trial that now she “remember[s] clearly it was black pants.” First, while near the
uneven bars, the defendant asked B.R. to put her hand in his pocket because he had a “treat” for her.
She refused, but later, while in his office, he made B.R. put her “hand in his pocket and squeeze his
penis.” The second time the defendant made B.R. touch his penis was later that same day. After he
went to the restroom, he went to his office and called for B.R. She testified that she did not want to
go into his office “because [she] thought something like that was going to happen.” When she
entered the office, the defendant exposed his penis. B.R. turned her head, and the defendant said,
“You can touch it and squeeze it.” B.R. told the defendant that she did not want to touch his penis,
but he grabbed her hand and made her touch it. She demonstrated for the jury the motion that the
defendant instructed her to make. She stated that the defendant’s penis looked “swollen,” “purple,”
and “red,” and it felt “hard” and “squishy.”11
The defendant later apologized to B.R. He told her that he would buy her anything
she wanted because he made her touch his penis. B.R. told him that she wanted a teddy bear, but
11
The record is unclear whether the office door was closed during these offenses.
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she testified that she “was just kidding.” The defendant gave B.R. a teddy bear, and B.R. told her
mother that he gave it to her for helping coach other students.
In May 2002, the defendant touched B.R.’s breasts. She remembered that it was May
because her mother noticed that she was starting to develop breasts on May 1. Her mother told her
to remember this important date and to tell the defendant about her development. When B.R. told
the defendant, he asked to see and touch her breasts. While in the defendant’s office with the door
closed, B.R. pulled her leotard aside, and the defendant touched her breasts. B.R. explained that her
back was to the door and that the defendant was facing her.
In June 2002, B.R. began complaining of back pain. In the evenings, B.R.’s mother
would place ice on B.R.’s back and give her Advil. B.R. continued to practice gymnastics during
the following weeks although her back pain did not subside. B.R.’s mother testified that B.R. had
“a couple of especially hard workouts,” and she testified to one in particular. On July 1 or 2, the
defendant telephoned B.R.’s mother and told her that B.R. needed to quit gymnastics because B.R.
would not follow his instructions. She spoke with B.R. that evening, and B.R. told her that the
defendant became angry when she refused to do back handsprings on the high beam because her
back hurt. The defendant became enraged and left the gymnasium for approximately one and one-
half hours. A 17-year-old gymnast supervised the students in his absence. B.R. informed her mother
that she did not enjoy gymnastics and that she wanted to quit. B.R. testified that the touching was
the real reason she wanted to quit.
B.R.’s mother admitted that she enjoyed watching her daughter practice gymnastics
and compete, but she testified that she supported B.R.’s decision to quit. Therefore, she called the
defendant the next day and told him that B.R. would not be attending practice and wanted to quit
gymnastics. That evening, the defendant and Mia Yabut, B.R.’s friend and practice partner, drove
to B.R.’s home in the tumble bus.12 B.R. joined them in the tumble bus, and B.R. told the defendant
she wanted to quit because she no longer enjoyed practicing gymnastics. B.R. testified that the
defendant made Miss Yabut leave the bus and then asked if she wanted to quit because he was
touching her. She confirmed that the true reason for quitting was the touching. The defendant told
B.R. that he would not touch her again. At some point, the defendant and B.R. went inside the
house. B.R., her mother, and the defendant went to B.R.’s bedroom. The defendant begged B.R.
not to quit gymnastics, and he cried. No decision was reached at that time.
Later in July, the defendant, B.R., and her parents met at the gymnasium again to
discuss whether she would quit. B.R.’s mother testified that she wanted B.R. “to quit for the right
reason.” She did not want B.R. to quit because she was scared to do a trick or had a bad practice.
B.R.’s mother testified that at the meeting, B.R. was “defiant, like [she] had never seen her before.”
B.R. testified that her mother encouraged her to try again. Her mother left the office because she was
frustrated regarding B.R.’s defiant behavior and wanted her daughter to quit for, what she
12
According to the defendant’s testimony, a tumble bus is a school bus with removed seats and miniature
gymnastics equipment.
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considered, an “appropriate reason.” At this meeting, they failed to decide whether B.R. would
continue practicing gymnastics.
While the defendant, B.R., and her parents continued to discuss B.R.’s involvement
with gymnastics, a doctor examined B.R.’s back. The doctor determined that B.R. had fractured the
L-5 vertebrae, and he prescribed that she wear a back brace for at least three months. The doctor
later extended the time to four months. While B.R. wore the brace, she did not practice gymnastics.
Instead, she worked sporadically at the gymnasium concession stand.
On September 7 or 8, 2002, the defendant went to B.R.’s house for dinner. After
dinner, the defendant, B.R., and her two sisters searched for the family dog. During the search,
B.R.’s oldest sister told the defendant that B.R. thought a certain young boy was cute. The defendant
teased B.R., and she struck him in the head. B.R. explained at trial that she hit him because of the
teasing and her pent-up anger from the touching.
After finding the dog and returning to the house, the defendant told B.R.’s mother that
he was “extremely angry” with B.R., that she had hit him, and that he was going to leave “before he
lost his cool.” B.R.’s mother testified that she asked B.R. why she struck the defendant and why the
defendant grew angry at B.R. “over seemingly insignificant things.” B.R. told her mother that she
had many reasons for hitting the defendant. Finally, B.R.’s mother asked, “[I]s he touching you
inappropriately?” B.R. answered that he had touched her inappropriately. At trial, B.R. testified,
over objection, that after she told her mother, her mother commented that “she kind of felt like
something like that was going on.”
B.R.’s mother testified that she hugged B.R. and told her that it would never happen
again. When she asked, B.R. where the defendant touched her, B.R. replied, “[h]er private spot.”
B.R. testified that she finally told her mother “[b]ecause [she] couldn’t bear having it inside [her].”
She stated that on several occasions, the defendant would tell her not to tell anyone because he
“would get in trouble.” B.R. believed she would “get in trouble for telling because [she] thought he
would get angry at [her].”
The next morning B.R.’s parents contacted the police. B.R. and her parents met with
Detective Breedlove at the Brentwood Police Department on September 10, 2002. Detective
Breedlove conducted B.R.’s interview in a conference room equipped with video and audio
recording devices, which he used to record the interview.13 B.R.’s parents observed the interview
on a closed circuit television. B.R.’s mother testified, over objection, that “[she] knew that [B.R.]
was being totally honest. [B.R.] was telling [Detective Breedlove] exactly what happened.” She
further testified that B.R. acted “somber,” but at times, she acted “silly, . . . not like herself at all.”
13
The videotape was shown to the jury during Detective Breedlove’s direct examination testimony.
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Detective Breedlove described B.R.’s demeanor as sometimes being “happy” and
“friendly,” but she then acted “stoic” and “flat.” B.R. looked down and softened her voice when she
described “sensitive subjects,” and she “shudder[ed]” while describing certain incidents.
Detective Breedlove attended a second interview with B.R. Over objection, he
testified that B.R.’s statements during the interviews and at trial regarding where the defendant
touched her, when he touched her, and where she was while the defendant touched her were
consistent. He explained that B.R. did not remember dates or the specific number of times the
defendant touched her vagina, but she never wavered from her story.
Detective Breedlove testified on cross-examination that although B.R. varied the
number of times that the defendant touched her vagina, he believed her testimony was consistent for
a child. Detective Breedlove admitted that B.R. made a mistake when she told him that the
defendant was wearing shorts when he exposed his penis. Detective Breedlove stated that after that
mistake, B.R. consistently stated that the defendant was wearing black pants. He agreed, however,
that B.R.’s testimony was “fairly inconsistent” regarding whether the defendant held the video
camera or whether it was on the ground while he filmed B.R.’s vagina in the straddle-stretch
position.
Subsequent to the September 10, 2002 interview, Detective Breedlove obtained
search warrants for Esprit Gymnastics and the defendant’s residence. On the evening of September
11 and prior to executing the warrants, Detective Breedlove visited B.R.’s home. With her parents’
permission, B.R. agreed to place a “perp phone call” to the defendant. Detective Breedlove testified
that the purpose of the telephone call was to gather information and possibly an admission from the
defendant. In the presence of her parents and Detective Breedlove, B.R. telephoned the defendant
at the gymnasium, and Detective Breedlove recorded the conversation.
During Detective Breedlove’s testimony, the State played the recorded conversation
for the jury and entered a transcript of the conversation into evidence. During this conversation,
B.R. told the defendant that she was worried about him touching her “private spots.” The defendant
responded, “No, I’m not going to do that.” B.R. also told the defendant that she was worried about
the videotapes. The defendant stated, “There [are] no video tapes.” The two then argued over
whether there are tapes of her “private spot.” Then, the defendant stated, “I have no idea what you’re
talking about . . . .” B.R. replied, “You, just promise me you destroyed them, okay?” The defendant
stated, “Whatever.” After this response, they changed the subject, and at one point, the defendant
spoke with B.R.’s mother. He failed to mention B.R.’s allegations. Eventually, the defendant spoke
with B.R. again, and the telephone conversation ended without further discussion of the offenses.
After recording the telephone conversation, Detective Breedlove and other Brentwood
Police Department personnel executed the search warrant first on Esprit Gymnastics and then on the
defendant’s residence. Initially, the defendant gave his consent to search the gymnasium, but he later
revoked consent. Detective Breedlove produced the warrant, and the police searched the
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gymnasium. After this search, the defendant followed the police to his residence, and it was
searched.
The police seized approximately 79 videotapes from the gymnasium and the
defendant’s residence. Detective Breedlove and two members of Project Alert,14 viewed all 79 tapes.
None of the 79 videotapes contained footage of B.R.’s uncovered vagina made while she performed
the straddle stretch. Of the 79 videotapes, 25 were digital VHS tapes. Detective Breedlove testified
that the 25 digital tapes contained practice routines of the defendant’s students. Five of the 25 digital
tapes, labeled A through E, focused on B.R.; the defendant focused the camera on “all three . . . of
the victim’s private areas.” Detective Breedlove stated that the defendant “zoomed” the camera in
on B.R.’s clothed vaginal area more than 200 times. He explained that some shots occurred when
B.R. did a gymnastic skill, but many times, the defendant “zoomed” in on B.R.’s vaginal area when
she was not doing anything of a “gymnastics nature.”
In tape A, the defendant “zoomed” the camera in on B.R.’s vaginal area 81 times.
In tape B, he focused on her vaginal area 84 times. In one of the 84 shots, B.R. was pushing a mat
underneath another student doing a skill on the trampoline. At this point, her legs obstructed a view
of her vaginal area. Detective Breedlove testified that as the defendant “zoomed” in on B.R., he
stated her name and that she “better get that in, you’re totally blowing it now.” She placed the mat
a couple more times, and the defendant stated her name again and said “hang on to the mat and get
it in like you used to, please.” B.R. changed positions making her vaginal area visible, and the
defendant said, “better, thank you” and then stated the victim’s name. Detective Breedlove testified
that during another shot of B.R. on tape B, while she was lying down, the defendant was distracted
by someone. He told the person to “give [him] a second” as he “zoomed” the camera in on B.R.’s
vaginal area. Detective Breedlove testified that the defendant focused on B.R.’s vaginal area 69
times in tape C, five times in tape D, and three times in tape E.
At trial, Lucy Fox, a judge and member of USA Gymnastics, the country’s gymnastics
governing body, reviewed several portions of videotape A. Referring to the “handstand straddle
down” position, she stated that there is no gymnastic purpose for “zooming in” on the gymnast’s
vaginal area. She asserted that there was no gymnastic purpose for focusing on the gymnast’s
vaginal area when she pushed the mat under another gymnast who was flipping on the trampoline.
Ms. Fox continually asserted the lack of any gymnastic purpose for each of the scenes she viewed.
Regarding spotting and stretching techniques, Ms. Fox explained that professional
members of USA Gymnastics must pass a safety certification test based upon the USA Gymnastics
Safety Handbook. The Handbook lists regulations for equipment and spotting techniques. Ms. Fox
read the Handbook’s “Hand Spotting” section into the record.
14
Project Alert is a section of the National Center for Missing and Exploited Children. The members are mainly
retired law enforcement officers. This organization assists police departments with investigations.
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Hand spotting refers to a method of spotting where a coach places his
or her hands on the gymnast, and lifts and manipulates and/or
supports the gymnast in mastering a skill. Warning and consent
documents should refer to the act of hand spotting and what it means.
All spotting should result in minimal touching support, and athletes
should be informed about the potential for touching while being
spotted. Unnecessary touching should not be used particularly when
the spotter is male and the gymnast is female. Gymnast and parents
should be aware that from time to time a slip may occur and the
gymnast will be touched on the buttocks, crotch or chest. The coach
and gymnast should understand such touching is at a minimum and
should not occur repeatedly.
If the coach or instructor accidentally touches one of these areas,
he/she should be sensitive to the situation and indicate that the touch
was an accident by a brief apology and then return to instructions.
When a coach/instructor is performing a rescue type spot, then
concern about touching a private area is obviously trivial in
comparison to the consequence of the unprotected fall.
Ms. Fox also explained that the private parts, the crotch, buttocks, and chest, are “no
zones.” She stated that there is no reason to touch the no zones, except possibly for a rescue spot.
Rescue spotting is when the coach will “grab” the gymnast to protect him or her from injury. The
coach prevents the gymnast from hitting his or her head, or the coach stops the gymnast’s rotation.
Ms. Fox further explained how a gymnast performs a frog stretch, and she
demonstrated the proper placement of the coach’s hands while hand spotting in the stretch. She
stated that “[n]o coach should place [his or her] fingers . . . between an athlete’s legs.” She testified
that frog stretching is not related to rescue spotting.
Ms. Fox also testified that a coach should not place his or her fingers between a
gymnast’s legs while the gymnast performs the straddle stretch. She stated that the coach’s fingers
should be placed “towards [the gymnast’s] legs diagonally or . . . straight up towards [the gymnast’s]
head along [his or her] back.” The hands should never rest on the inner thigh area.
On cross-examination, Ms. Fox explained that when a gymnast performs the frog
stretch, a coach should place his or her hand “midway down [the gymnast’s] tush,” but “not cupping
[the gymnast’s] tushes.” She stated that this is an exception to the “no zone” rule, but a coach should
never touch the vaginal area of a student. Ms. Fox explained that TOPS testing, testing for gymnasts
training for the elite track, examines gymnasts’ strength and flexibility. During this testing, coaches
take several measurements, one being from the gymnast’s hip bone to the floor while in a split. She
admitted that the coach touches the vaginal area, the hip bones, but the coach does not touch the
vagina or the inner thigh. Ms. Fox testified that pictures of the cat leap position would show the
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crotch area, but it would also show the legs and feet for positional purposes. Finally, she stated that
neither a student nor a coach would benefit gymnastically from watching videotapes that only show
a gymnast’s crotch.
On October 2, 2002, personnel at Our Kids Center evaluated B.R. Phyllis Thompson,
a licensed social worker, testified at trial. She obtained B.R.’s medical history and explained the
process of the medical examination. Ms. Thompson stated that this initial interview dictates the
invasiveness of the physical examination.
Ms. Thompson testified that B.R. told her that she was having nightmares about the
defendant. When Ms. Thompson asked her what the defendant did to her, B.R. replied that he
touched her “private spot” many times. B.R. further stated that the defendant touched “the part she
pees from - with his finger.” B.R. was unsure whether he touched the inside or outside of her vagina.
Ms. Thompson testified that B.R. stated that she felt pain when the defendant touched her “private
spot,” but B.R. did not bleed during or after the contact.
B.R. told Ms. Thompson that the defendant touched her breasts and made her touch
his penis. She demonstrated the motion that she made during the contact and stated that nothing
came out of the defendant’s penis. Ms. Thompson testified that she failed to ask B.R. if she saw the
defendant’s penis.
After the grand jury indicted the defendant, Detective Breedlove, accompanied by
other officers, arrested him at Esprit Gymnastics.
At trial, the defendant called seven witnesses, including the victim, and he testified
on his own behalf. Three witnesses, Edmund Yabut, M.D., Dee Ann Melton, and Michelle Day,
whose children practiced under the defendant, testified concerning the defendant’s good character.
They also described his coaching style as “aggressive,” “intense,” or “devoted” and explained that
the defendant did not have a policy that limited parents’ access to the gymnasium floor or the
defendant’s office. Defense witness, Rob Tallman, who also was a parent of a student, testified
concerning the opening in the defendant’s office wall. In addition, the defendant called Brentwood
Police Department Corporal Melissa Westbrook, who conducted the initial interview of the victim.
Mia Yabut, Edmund Yabut’s daughter and B.R.’s practice partner, testified on the defendant’s
behalf.
The defendant testified that he moved to Tennessee from California after accepting
a job as the director of the girls’ team program at Let It Shine Gymnastics. While coaching at Let
It Shine, he moved B.R. into his training group, and soon after the regrouping, he met B.R.’s family.
After coaching six months at Let It Shine Gymnastics, the defendant was fired,
according to him, because he and the owner disagreed over the running of the girls’ team program.
Instead of returning to California, the defendant opened his own gymnasium, Esprit Gymnastics, at
the request and with the help of three families, the Yabuts, Yepezs, and Meltons. B.R.’s family
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joined the efforts by contributing money. On December 8, 2000, B.R. and the other “six pack”
members, Mia Yabut, Lilly and Andy Yapez, Jordan Melton, and Catherine Traxler began training
at Esprit Gymnastics under the defendant’s tutelage.
The defendant described B.R. and his relationship with her. He testified that B.R. had
“ability in gymnastics.” In addition, he stated that she was fearful, and this fear hindered her
gymnastic development. The defendant said that B.R. was not “tough” and that none of the girls
were, and as a coach, he had to “maximize [the girls’] strengths; . . . minimize their weaknesses.”
Thus, he described his coaching style as “aggressive.” The defendant admitted that he developed
more of a friendship with B.R. than the other girls because he “was over at [her] house more.” He
stated that this friendship interfered with his coaching and may have caused other students to quit
practicing at his gymnasium.
Four defense witnesses, Dr. Yabut, Miss Yabut, Ms. Melton, and Ms. Day, described
the defendant’s and B.R.’s relationship. Doctor Yabut testified that B.R. “grabbed [the defendant’s]
attention all of the time.” He stated that the relationship did not concern him until his daughter
complained of a lack of attention from the defendant. Doctor Yabut also testified that he thought
the female students had “crush[es]” on the defendant and that his daughter was jealous of B.R. Miss
Yabut confirmed her father’s opinion and admitted that she was “a little jealous of [B.R.’s]
attention.” She testified that the defendant would talk to B.R. more than he would the other students.
Another defense witness at trial, Ms. Day, described the relationship, and she testified that she
thought B.R. “had a little bit of a crush on [the defendant].” She testified that B.R. would walk up
to the defendant and put her arms around his shoulders, or she would sit down with him and engage
in conversation. Ms. Day testified that the defendant would ignore B.R., undrape her arm, and direct
her to go perform a skill. Ms. Melton testified that B.R. “had a crush on [the defendant].” She
testified that B.R. adored the defendant, and “[i]t was obnoxious” and “a huge annoyance.”
The defendant testified to the size and layout of the gymnasium and office area. He
stated that from the parent viewing area, all areas of the gymnasium were visible except the
bathrooms and a portion of the rod floor where the hot water heater sits. He also explained that the
office door would not close or lock, and he described the opening in the office wall, testifying that
the opening was “90 inches tall or so, 65 inches wide.” The defendant stated that he was never in
his office alone with the door closed with B.R. or with any other student. Rob Tallman testified that
in late August or early September the defendant closed the opening and asked him to finish the
drywall.
The defendant denied touching B.R.’s vagina while she performed the frog stretch.
He explained that the purpose of the stretch is to gain strength and flexibility, mainly for balance
beam skills. He elucidated that frog stretches affect “hip turnout” and pelvic tilt. When students
perform the frog stretch, coaches forcefully push downward on the buttocks to increase the stretch.
The defendant stated that during the stretch, the student’s hips rotate and the private area is
underneath him or her “flat on the ground.” He explained that “there is really nowhere for [a coach’s
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fingers] to go.” Thus, he asserted that he never knowingly or accidentally touched B.R.’s vagina
during the frog stretch.
Ms. Melton, Ms. Day, and Miss Yabut testified regarding stretching. Ms. Melton
testified that a mat was “not necessarily” in the vicinity of the stretching. Both Ms. Melton and Ms.
Day testified that neither one became alarmed when watching the defendant stretch B.R. Miss Yabut
testified that she and other students practiced on the trampoline while the defendant stretched B.R.
on the rod floor. She testified that she would watch the defendant stretch B.R. because she was
jealous of the attention the defendant showed B.R. Miss Yabut also stated that she never saw the
defendant inappropriately touch B.R. during the stretches.
The defense called B.R. to clarify where she was located on the rod floor when the
defendant touched and filmed her vagina as she performed the straddle stretch. B.R. used a diagram
she had drawn in a previous interview and identified the front of the gymnasium on the diagram.
According to the diagram, her feet pointed toward the right wall.
On cross-examination, the State asked further questions regarding her location, and
B.R. testified that she drew the diagram “from . . . if you look down.” She further testified that her
back was to the wall with mirrors. We discern from the record that the mirrored wall is the left wall
of the gymnasium.
The defendant explained that B.R. had a fear of doing certain skills on the beam,
namely the back walk over and the back handspring. On July 1, 2002, B.R. was scared to perform
the back handspring, so the defendant explained that as part of his coaching strategy, he left the
gymnasium. He stated that if he “remove[d himself] from the environment,” then B.R. would want
to perform the skill. He left a 17-year-old coach in charge of the students while he shopped at Home
Depot. At this point, he telephoned B.R.’s mother and reported the incident. Upon returning to the
gymnasium, he learned that B.R. had performed the skill, and at his request, she demonstrated it
twice more.
Although Ms. Melton did not witness this incident, she testified to its occurrence.15
She then testified that “B.R. was crushed because [the defendant] basically chose gymnastics over
what she thought their relationship was.” She explained that from that day forward, B.R. did not
look at or speak to the defendant. She testified that B.R. made excuses for why she could no longer
participate in gymnastics, and Ms. Melton testified that B.R.’s back injury, in her opinion, was not
legitimate.
15
Ms. Melton testified to the incident on direct examination. On cross-examination, the State elicited that she
had not personally witnessed the event. The State moved to strike her prior testimony. W hile the trial court and counsel
discussed the motion, Ms. Melton interrupted them four times, and the court had to instruct her to stop testifying. The
trial court then denied the State’s motion.
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The defendant testified that B.R.’s mother telephoned him on July 2, 2002, and
informed him that B.R. would not be attending practice. On July 3, the defendant and Mia Yabut
arrived at B.R.’s home in the tumble bus. The defendant stated that Miss Yabut and B.R. played in
the tumble bus while he showed B.R.’s mother the tumble bus’s new generator, which B.R.’s mother
had purchased. After B.R.’s mother returned inside the home, the defendant, Miss Yabut, and B.R.
remained on the bus until Miss Yabut announced that she was going inside. Miss Yabut testified
at trial that she left the bus “[b]ecause [she] thought they wanted to talk alone for a while.” The
defendant and B.R. then talked about her quitting gymnastics. The defendant testified that he
encouraged her to keep participating. He stated that the conversation “centered around” “another
skill on bars that she was particularly fearful of.” He testified that B.R. never told him that she
wanted to quit because he was sexually abusing her.
After Miss Yabut returned to the bus, the three went inside B.R.’s house. In B.R.’s
bedroom, the defendant, B.R., and her mother discussed her future in gymnastics. The defendant
stated that he, B.R.’s mother, and B.R. all cried during the conversation, and he did not testify
whether B.R. made a decision to quit that night. The defendant, B.R., and her parents continued to
discuss her gymnastics future throughout July, August, and September.
Defense witness Corporal Westbrook’s testimony regarded her September 9, 2002
interview with B.R. Corporal Westbrook was the first Brentwood Police Department employee to
interview B.R. after her parents contacted the police. Corporal Westbrook explained that she was
the initial responding officer, and she did not question B.R. “per se.” Eight days after the interview
and at the request of Detective Breedlove, Corporal Westbrook wrote a supplemental report of this
interview. She testified that B.R. told her that the defendant touched her breasts and vagina. She
further testified that her report stated that “[B.R.] advised that [the defendant] had touched her
breasts several times, too.”
On cross-examination, Corporal Westbrook testified that the interview’s purpose was
to determine whether to investigate the allegations further. She stated that she wrote the report from
cursory notes, and B.R.’s description of the breast touching “was just more fleeting than anything.”
The defense called B.R. to testify regarding this issue, and B.R. stated that she told
Corporal Westbrook that the defendant touched her breast “once for sure.” She further testified, “I
think I said several for him touching my vagina. I never said - I don’t think I said several for him
touching my breasts.”
Two days after the September 9, 2002 interview, B.R. telephoned the defendant at
the gymnasium. The defendant stated that he was teaching class at the time of the telephone call.
He explained that during the conversation, he was preoccupied with his students. When B.R. told
him that she was worried about him “[t]ouching [her] in [her] private spots,” the defendant replied,
“No, I’m not going to do that.” He further testified that he “had never done that.” The defendant
explained that he was “shocked” by the comment and uncertain how to react. At trial, he denied
filming and touching B.R.’s vagina, and he stated that he ended the telephone conversation with
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“[w]hatever” because he refused to continue this conversation over the telephone. The defendant
then spoke with B.R.’s mother. He explained at trial that he failed to discuss B.R.’s allegations with
her mother because it was inappropriate to do so over the telephone.
On cross-examination, the State played the audiotape of the telephone call for the
jury. The defendant agreed that on direct examination he testified that he “was shocked and caught
off guard” by B.R.’s allegations during the telephone call. After hearing the audiotape, the defendant
testified that “[s]hock and caught off guard may not be distinguishable in [a person’s] voice.”
Shortly after B.R. placed the September 11, 2002 telephone call, the police entered
the gymnasium and spoke with the defendant in his office. After another coach finished the
students’ workouts and they left, the police searched the gymnasium. Afterwards, the defendant
followed the police officers to his apartment where they continued searching. Because of the
searches, the defendant explained that he never had the opportunity to discuss the allegations with
B.R. and her mother. He agreed that the police seized several videotapes filmed by him.
At trial on cross-examination, Ms. Melton viewed, we surmise from the record,
videotape A. She agreed that the videotape showed her daughter’s crotch area while she was not
performing a gymnastic skill, and Ms. Melton testified that the defendant “is really interested in
anatomy.” She testified that the defendant’s purpose was to analyze “hip placement.” Ms. Melton
further testified that during the investigation, Detective Breedlove showed her a videotape with a
close-up shot of her daughter’s crotch,16 and “maybe [she] did” tell Detective Breedlove that portions
of the videotape were inappropriate. However, she testified that the videotape she viewed at trial
did not “bother [her] whatsoever.”
She viewed another scene on videotape A that showed a close-up of B.R.’s vaginal
area and buttocks while she pushed a mat under another student performing a trick on the trampoline.
Ms. Melton testified that the defendant would not film his students other than for gymnastics
purposes. In response to Ms. Melton’s answer, the State showed Ms. Melton two other scenes on
the videotape outside of the jury’s presence. Once the jury returned, Ms. Melton described what she
saw. She testified that the scene showed the gymnasium’s bathroom, and it showed that the
defendant walked to the toilet, pulled down his shorts, sat on the toilet, and then wiped himself from
the front. In the next scene, Ms. Melton agreed that the video camera was wrapped in a black
material, and there was a hole in the material for the lens. She stated that “someone” came into the
camera’s view. When the State asked her if she noticed that the person’s clothing changed to a
“nude shade,” she replied, “I’m not putting it together. I’m really not.” She admitted that the person
sat down on the toilet as the defendant did in the previous scene, but she stated that she was not sure
whether the person reached for toilet paper. After testifying to the contents of these scenes, she still
contended that the defendant “wouldn’t tape the girls for any other purpose other than gymnastics.”
16
The record is unclear whether the videotape she viewed with Detective Breedlove was videotape A.
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At trial, the defendant also reviewed portions of the videotapes. First, the defendant
explained that the shots were of B.R.’s “pelvic area,” not vaginal area. He commented that the
focusing on B.R.’s pelvic area while she pushed a mat under another gymnast served gymnastic
purposes, including the study of biomechanics, teaching tools for students, and teaching tools for
coaches. He disagreed with Ms. Fox’s testimony that the videotapes serve no gymnastic purpose and
explained that he is a “minority in the coaching community” because of his “cutting edge”
techniques. The defendant stated that the purpose of the close-up, pelvic shots of B.R. while she
stood at the wall was to teach her the “Staulder press.” He further explained that B.R. cannot
perform a “Salto up,” so he instructed her to perform “Salto downs.” By focusing the camera on her
pelvic area when she performs certain skills, he could analyze whether B.R.’s body position was
biomechanically correct, namely her pelvic tilt.
At the end of his direct examination testimony, the defendant denied touching and
filming B.R.’s vagina for sexual gratification purposes. He further denied touching her breasts for
sexual gratification.
Regarding the bathroom scenes in videotape A, the defendant testified on cross-
examination that he filmed the first scene on July 21, 2001, at 10:43 p.m. He admitted that the
camera sat on a “drawer thing” in the bathroom of the gymnasium. He agreed that he paced in the
camera’s view, and then he walked to the toilet, pulled down his shorts, sat on the toilet, and then
wiped himself from the front. The defendant further agreed that he filmed the second bathroom
scene a few hours later at 4:26 a.m. He admitted that he surrounded the camera with black trash
bags, the roll of extra trash bags being visible in the scene, and there was a hole for the lens. The
defendant did not admit that he took his clothes off when the State asked him if he became “totally
skin colored,” but he agreed that he sat on the toilet and wiped himself from the front. After this
portion of testimony, the State showed the videotape to the jury. The defendant contended that he
did not attempt to covertly videotape students in the bathroom; he testified that he videotaped
himself.
In rebuttal, the State called Andy Yepez, a former member of the “six pack,” and she
testified that the defendant stretched B.R. differently from the other students. The defendant placed
his hands on B.R.’s buttocks instead of “on the side” of the back, as he did with every other student.
Miss Yepez testified that when he stretched B.R., her view was frequently obstructed by a mat, and
parents usually were not present. She admitted that the defendant stretched all students behind the
mat and on the same place on the rod floor, but he stretched B.R. longer than he did the other
students. The defendant stretched her for 30 seconds to one minute, but he stretched B.R. for
approximately 10 minutes.
The State also called Nancy Westman, mother of one of defendant’s former students.
Ms. Westman described the defendant’s and B.R.’s relationship. She testified that the defendant
“favored” B.R.; “[h]e spent more time with her, and he hugged [B.R.] more than the other students.”
Ms. Westman stated that “[t]hey gave each other back rubs,” and the defendant did not do this with
other students. She testified to one occasion when the defendant and B.R. were tickling each other.
-16-
Ms. Westman described the interaction as “a boyfriend/girlfriend type relationship, like 16 year olds
would act when [they’re] dating.”
Ms. Westman also described an interaction between B.R. and the defendant while
they, along with other gymnasts and their family members, were on a 15-passenger van in San Diego,
California. Ms. Westman testified that she and Ms. Melton sat behind B.R.’s mother and in front
of B.R. and the defendant. She heard B.R. “kind of squirming,” and B.R. said, “[N]o, [the
defendant’s name], no, just on my face.” Ms. Westman turned around and observed the defendant
tickling B.R.’s face. He then rubbed down her arm, eventually onto her leg and thigh. Ms. Westman
testified that she heard B.R. state to just touch her face several times. She stated that she “felt
uncomfortable,” so she “nudged” Ms. Melton, who looked at them and then, according to Ms.
Westman, shook and put her head down. When Ms. Westman heard B.R. say it again, she “turned
around completely in [her] seat.” She testified that she looked at him and “gave him a look, like
what are you doing.” Ms. Westman testified that she did not mention the incident to him on the van
because she did not want “to get into a big scene.”
In surrebuttal, the defendant called Ms. Melton, and she testified regarding the San
Diego incident. Ms. Melton testified that the defendant touched B.R.’s face and arms in a “playful”
manner; she described the interaction between the two as “child’s play.” She stated that B.R. would
tell the defendant to stop and that B.R. “was being silly.” Ms. Melton testified that there was
nothing “sexual” about the actions.
At the close of all proof, the State elected certain offenses. We summarize the
election as follows:
Count Charge Location/Time
1 Aggravated sexual battery First time defendant touched B.R.’s vaginal
area over her leotard during frog stretches on
the rod floor
2 Aggravated sexual battery First time defendant touched B.R.’s vaginal
area under her leotard during frog stretches on
the rod floor
3 Aggravated sexual battery Time when defendant touched B.R.’s vaginal
area under her leotard while in a straddle
stretch on the rod floor and defendant and
B.R. negotiated the length of the touching
4 Aggravated sexual battery May 2002 when the defendant touched B.R.’s
breast with his hand while in the gymnasium’s
office
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5 Aggravated sexual battery Time when defendant made B.R. touch his
penis with her hand while in the gymnasium’s
office
6 Aggravated sexual battery Time when defendant made B.R. touch his
penis with her hand through his pocket while
in the gymnasium’s office
7 Aggravated sexual battery Time when defendant touched B.R.’s vaginal
area while he videotaped her vaginal area on
the rod floor
8 Especially aggravated sexual Time when defendant touched B.R.’s vaginal
exploitation of a minor area while he videotaped her vaginal area on
the rod floor.17
The jury deliberated and found the defendant guilty of all State-elected offenses.
I. DISCOVERY RELATED COMPLAINTS
The defendant’s first appellate complaint is that unreasonable restrictions on defense
access to discovery materials violated Criminal Procedure Rule 16 and his right to counsel
guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution. The defendant identifies the discovery materials as (1) approximately 25
videotapes seized from his home when officers executed a search warrant, (2) information extracted
from his home computer, and (3) an audiotape of a telephone conversation between the defendant
and the victim. Insisting that the materials were “pornographic,” prosecution counsel refused to copy
or duplicate them for the defendant and, instead, required the defense to appear personally at the
police department to review the materials. The trial court sanctioned the State’s restrictions on
discovery and ruled that the evidence could be viewed only at the police department at a mutually
convenient time and that the tapes would not be copied.
Tennessee Rule of Criminal Procedure 16(a)(1)(F) provides,
Documents and Objects. – Upon a defendant’s request, the
state shall permit the defendant to inspect and copy or photograph
books, papers, documents, photographs, tangible objects, buildings,
or places, or copies or portions thereof, if the item is within the state’s
possession, custody, or control and:
17
Counts are numbered according to the State’s Election, which was included in the jury instructions. They are
not numbered according to the original indictment.
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(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-
in-chief at trial; or
(iii) the item was obtained from or belongs to the
defendant.
Tenn. R. Crim. P. 16(a)(1)(F).18
The language of Rule 16(a)(1)(F) is straightforward, and the State’s duty is
mandatory. Upon request, “the state shall permit” inspection and copying. Id. (emphasis added).
In State v. Richard Allen Butler, No. E2004-00359-CCA-R9-CD, slip op. at 10-13 (Tenn. Crim.
App., Knoxville, Mar. 30, 2005), perm. app. denied (Tenn. 2005), the court rejected the State’s
argument that copying and disseminating discovery materials containing alleged child pornography
would violate Tennessee’s exploitation of a minor statute.
Our review of the record leaves us at a loss to discern a valid basis for the discovery
restrictions, which were prompted ostensibly by the State’s claim that the materials were
pornographic and would revictimize the victim. Nothing in the audiotape of the conversation
between the defendant and the victim is remotely pornographic, and the State asked the victim to
assist with the investigation by placing the telephone call. The materials extracted from the
defendant’s computer depict individuals other than the victim, and at the sentencing hearing
Detective Breedlove insisted that he was not representing to the court that the images contained
unlawful pornography. Regarding the videotapes, the trial court articulated its ruling in the
following fashion:
[T]he Court has before it the motion of defendant to compel the State
to produce copies of videotapes.
The case in this state is that the prosecution is not required to
reveal its entire file in a particular case, but is required to disclose
evidence favorable to the defendant that if suppressed would deprive
the accused of a fair trial.
....
18
Effective July 1, 2006, the T ennessee Rules of Criminal Procedure were “reformatted.” As part of that
undertaking, numerous sections and/or subparts of various rules were renumbered. Previously, the section of Rule 16
that addressed discovery of documents and objects was (a)(1)(C). Discovery of tangible objects now appears in section
(a)(1)(F). See Compiler’s Notes, Tenn. R. Crim. P. (effective July 1, 2006).
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The Court is of the opinion that the law in this state is – is that
that which must be disclosed is that to ensure a fair trial, the
procedure proffered by the State, in this Court’s judgment, affords the
defendant a fair trial and this is how the Court would like the order to
read: That the defendant may inspect the video – the 12 videotapes
at issue at the police department, at a mutually convenient time, in a
room, provided a private room, at which time defense counsel may
view the tapes, but the Court is not allowing the tapes to be copied
and disseminated at this time.
. . . [D]efense counsel shall not disclose the contents pending
further orders of the court. Any expert . . . [and] any parent of any
student that defense counsel may bring to the viewing is also under
the same Protective Order.
The trial court misapprehended the requirements of Rule 16. Its reference to the
State’s obligation to disclose evidence favorable to the defendant that, if suppressed, would deprive
the accused of a fair trial is a classic statement of the prosecution’s constitutional duty to disclose
exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). In addition to
that obligation, however, Rule 16(a)(1)(F) requires the State to permit inspection and copying of
certain tangible items without regard to the exculpatory nature of the discovery materials. Evidently,
the trial court regarded its authority as restrained only by the amorphous “fair trial” regimen, thereby
failing to recognize that Rule 16, itself, strikes a considered balance and is quite specific in
delineating the State’s mandatory obligations to produce certain discovery materials.19
We note that on appeal the State makes no effort to defend the discovery restrictions
and argues, instead, that no reversible error has been demonstrated. On that point, we agree.
Although the “potential” for prejudice from such restrictions is readily evident, reversible error
requires more palpable harm.
For example, the defendant argues that his attorney “wasted hours of his time
traveling back and forth to view tapes he could have reviewed at his convenience in his office” and
that defense counsel “never did get to see all of the tapes because of the restrictions imposed by the
Court.” A party who fails to take reasonably available steps to mitigate the harmful effect of an
error, however, is not entitled to use the error to obtain relief on appeal. See Tenn. R. App. P. 36(a).
There is no evidence in the record that the defendant sought a trial continuance to afford additional
time to complete his review of the videotapes. Similarly, wasted attorney time, without a
19
The nondisclosure portion of the trial court’s order regarding defense counsel, any defense expert, and any
parent is not objectionable, see State v. Richard Allen Butler, No. E2004-00359-CCA-R9-CD, slip op. at 12-13 (Tenn.
Crim. App., Knoxville, Mar. 30, 2005), perm. app. denied (Tenn. 2005), and indeed defense counsel stated on the record
that he acquiesced to those restrictions provided copies of the discovery materials were given to defense counsel.
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demonstrable showing of prejudice to the client’s defense, as opposed to the attorney’s “bottom
line,” does not rise to the level of reversible error.
The defendant also maintains that he “wanted to have experts examine the tapes[,]
but the financial situation was such that they could not afford to have experts travel to Brentwood
to view these tapes.” This bare assertion made during the hearing on the defense motion to compel
access to discovery materials is inadequate in our opinion to demonstrate the requisite harmful
prejudice. In the hearing on the motion for new trial, the trial court should not have rebuffed the
defendant’s proffer of testimony from trial counsel, but we fail to discern, at any rate, how trial
counsel’s testimony could or would have established reversible error predicated on specific expert
testimony that was prohibitively expensive to obtain.
The failure to supply the defendant with a copy of the audio taped conversation
between the victim and the defendant is, from this record, indefensible. At one point, prosecution
counsel mentioned, somewhat in passing, that the police department did not have the equipment
required to duplicate a microcassette tape recording, to which defense counsel retorted that the
detective “can go to Radio Shack and buy a plug that you can plug between two tape recorders that
cost you $2.95.” At any rate, the customary need for a copy of the audio cassette recording is to
permit a comparison with the transcript that the State intends to offer at trial. In that fashion, any
transcription inaccuracies or disputes can be resolved pretrial. In the present case, the defense does
not point to any such inaccuracies with the State’s furnished transcript or other specific prejudice
warranting relief on appeal.
In conclusion, we decline the defense’s invitation to find per se reversible error. No
doubt error in the discovery process occurred in this case, and the defendant’s frustration with the
discovery gauntlet is palpable from the record on appeal. However, we are not persuaded that the
defense has established the requisite prejudice for entitlement to a new trial.
II. PUBLIC TRIAL
The Sixth Amendment to the United States Constitution20 and Article I, Section 9 of
the Tennessee Constitution afford an accused the right to a “public trial.” See In re Oliver, 333 U.S.
257, 68 S. Ct. 499 (1948); State v. Sams, 802 S.W.2d 635 (Tenn. Crim. App. 1990). This right is
regarded as “a shared right of the accused and the public, the common concern being the assurance
of fairness.” Press Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S. Ct. 2735, 2739 (1986).
“Transparency,” it has been said, “is essential to maintaining public respect for the criminal justice
system, ensuring its integrity, and protecting the rights of the accused.” Smith v. Doe, 538 U.S. 84,
99, 123 S. Ct. 1140, 1150 (2003). The right to a public trial is not absolute, however, and in certain
20
An enlightening exposition of the legal pedigree undergirding the right to public trial appears in Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814 (1980) (tracing the origins of the right from “back beyond
reliable historical records” in the “days before the Norman Conquest” to the judicial systems of colonial America).
-21-
cases must yield to other rights or interests. See Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210,
2215 (1984).
The defendant in this case constructs an argument that his due process and public trial
guarantees under the federal and state constitutions were abridged because the trial judge excluded
the public from viewing the videotapes of gymnastics which showed the victim. The public was
excluded, the defendant insists, because when the videotapes were identified and played, the trial
judge forced the public spectators on numerous occasions to “shift” to another part of the courtroom
to ensure that they could not see the evidence. The State, for its part, does not dispute that the trial
judge screened the media and public from viewing videotapes of the victim by arranging the
courtroom so that only the jury, witnesses, the defendant, and attorneys could see the videotapes.
Instead, the State maintains that the defendant waived the issue by failing to object and, indeed, by
being the instigator of the seating arrangement. The State also asserts that the trial judge’s actions
conformed to Tennessee Supreme Court Rule 30(C)(1) which forbids media coverage in any judicial
proceeding “of a witness, party, or victim who is a minor.” Tenn. Sup. Ct. R. 30(C)(1).
We begin by examining the context in which this issue arose. In a jury-out hearing
during Detective Breedlove’s testimony, the parties and the court discussed various aspects of how
and what portions of the videotapes would be played for the jury. Defense counsel addressed the
trial court as follows:
MR. JOHNSON: Your Honor, please, one of the reasons that
in an earlier hearing General White raised about providing copies to
us was the potential revictimization of the victim if it got released
outside. I know there [are] members of the public sitting out there,
and they are obviously interested in the tapes. And what is – is it
Your Honor’s intention for them also to be allowed to see the tapes
in light of the General’s objection that she didn’t want the victim to
be revictimized by this? Or does the public have the right to see the
video tapes? . . .
GENERAL WHITE: The public has a right to be in the
courtroom. There is no provision from barring them from being in
the courtroom. I will defer to the court on the other issue whether or
not Your Honor wants to make them sit down. But I know that in
these type of cases there’s always public in the courtroom and there
is no provision in the law to bar them from a public courtroom.
MR. JOHNSON: As I indicated earlier my only concern was
that earlier the General had argued against us getting copies based on
the potential for revictimizing the victim, by letting other people
outside of the immediate parties see these video tapes.
-22-
THE COURT: All right. I guess I’ll first start with the media.
Who here is from the media? Stand up. All right, and ma’am you’re
the last person from the media that is here?
UNIDENTIFIED SPEAKER: They are out in the hallway.
THE COURT: In the hallway? You’re with whom?
UNIDENTIFIED SPEAKER: With Channel 4.
THE COURT: You’re with Channel 4. Probably, the other
media folks ought to come in here because I am just going to ask y’all
what y’all want and that will tell me what I need to decide. . . .
....
THE COURT: I appreciate you bringing that up, Mr.
Johnson, that was very nice. Okay. Is that everybody? We got
Channel 4, we got FOX 17. . . . So 4 and 17. Now 2 and 5 are not
here, they were here yesterday.
....
THE COURT: Right, I was going to let y’all sit over there
and you can hear and watch the jury, but Mr. Johnson has a good
point, we don’t want a, quote revictimization, or alleged
revictimization of alleged victim at this time. This case is in progress
and it is hard enough as it is. So but the rule – I’m giving deference
to Supreme Court Rule 30, so I’m wondering if you have any problem
with it, sitting over here and not watching this?
UNIDENTIFIED SPEAKER: I would just say if the public
at large is allowed to watch, we should be allowed to watch too. . . .
That would be my only argument.
THE COURT: I can make a decision about the public at large
without asking. I think Mr. Johnson has a good point. I don’t want
to see this child or another child, we used the term revictimized and
. . . I’m also by saying that that I am recognizing that the defendant is
presumed innocent . . . . So by saying all that I’m ruling that I’m
going to ask the public and media, you may stay in the courtroom
during this process but I don’t want you seeing this video tape. You
can hear about it, but I don’t want you watching it at this time. So
-23-
maybe if I can get you all over in that section. Thanks. So the
camera and the audio pickup is off.
....
THE COURT: Once we start we need to have a deputy posted
at the door and stop them until a break. . . . So, why don’t I get the
court officers to go out there and see if there is anyone [who] wants
to be in the courtroom now, they need to come in . . . . Mr. Johnson,
if you want to weigh in on any of these instructions up to now, you
may. Do have any objection to the way the Court has handled it up
to now.
MR. JOHNSON: No, Your Honor.
The trial transcripts also reflect several additional times when the court directed members of the
audience to move.
We are not persuaded initially that a complete or partial closure of the courtroom
occurred in this case.
A complete closure has the effect of excluding everyone from the
courtroom with the exception of the parties, the attorneys, court
personnel, and the witnesses. A complete closure may be for the
entire trial or proceeding, or a portion of the proceedings such as the
testimony of a particular witness. A partial closure results in the
exclusion of certain members of the public while other members of
the public are permitted to remain in the courtroom.
Sams, 802 S.W.2d at 639. No members of the media or public were barred from the courtroom in
this case, and the State noted specifically on the record that the public had a right to be in the
courtroom. To be sure, the trial court arranged the courtroom to screen the media and public from
viewing videotapes of the victim, but courtroom spectators often are disadvantaged in viewing trial
exhibits as they are offered and introduced. Furthermore, the record discloses that the only media
objection was couched in terms of equal treatment for the media and the public. See Wilbert Rogers
v. State, No. W2004-00654-CCA-R3-PC, slip op. at 3-4 (Tenn. Crim. App., Jackson, Feb. 22, 2005)
(declining to find closure of judicial proceedings because trial judge had his court open, even though
other courts were apparently closed due to weather; weather-related closing of other court-rooms did
not result in denial of a public trial).
The defense cites to no authority describing what happened in this case as a complete
or partial closure of trial proceedings. However, even if the right to a public trial was somehow
implicated, we believe the issue is resolved by the defendant’s failures to object to the trial court’s
-24-
actions or otherwise make known his concern. Therefore, we conclude that the defendant waived
his right to a public trial to the extent that what occurred can even be characterized as a “closure.”
State v. Tizard, 897 S.W.2d 732 (Tenn. Crim. App. 1994) (finding waiver when defendant failed to
object to trial court’s exclusion of journalism students during the cross-examination of the victim
involving vulgar references to masturbation).
The defendant insists that he did not waive any rights and that the State has taken
“completely out of context” his negative response to the trial court’s inquiry whether he objected “to
the way the Court has handled it up to now.” We disagree; from the transcript, it is altogether
reasonable to conclude that a waiver occurred. At any rate, even if the trial court and defense
counsel were discussing some other matter, such as instructions to the media, the record plainly
discloses that the defense did not object when the seating arrangement was being discussed at an
earlier point. Finally, even if the defense broached the subject tongue-in-cheek to highlight the
inequity of the trial court’s restrictions on defense discovery, the defense was not thereby relieved
of the obligation of formally objecting to the seating arrangement orchestrated by the trial court.
In summary, the defendant is not entitled to a new trial regarding any claimed
violation of his right to a public trial.
III. JURY INSTRUCTION REGARDING DEFENDANT’S TESTIMONY
In his third issue, the defendant complains that the trial court improperly impeached
him and struck his testimony, violating his Due Process rights and obstructing the jury’s Sixth
Amendment factfinding function. He predicates his complaint on the following portion of the State’s
cross-examination of him:
Q. And this has been - you have been to the Brentwood Police
Department several times with [defense counsel]; is that correct?
A. I have been to the Brentwood Police Department with [defense
counsel] on several occasions.
Q. And you’ve looked at videotapes?
A. I was unable to look at the videotapes in their entirety because of
the strict rules that the Court put on us.
Later during the defendant’s cross-examination, the court held a jury-out hearing on
another issue, and after this hearing, but before the jury returned, the court sua sponte proposed a
curative instruction regarding the defendant’s comment that he “was unable to look at the videotapes
in their entirety because of the strict rules that the Court put on [him].” The judge explained, “On
appeal, an argument in the record like that, that the court of appeals may assume that’s true because
he wasn’t corrected on the record.” Defense counsel replied, “I have no problem with putting that
-25-
on the record, except for the fact that I don’t want that to be construed as my agreeing to Your
Honor’s protective order.” The trial judge then asked if the jury should be instructed to disregard
the statement as being unresponsive, and defense counsel answered, “Yes.” When the jury returned,
the court instructed them “to disregard any comment that the defendant made in his testimony
concerning any alleged denial of access to tapes by the Brentwood Police Department prior to today.”
On appeal, the defendant claims that the trial court’s instruction was error. We
decline the defendant’s request for relief on this basis because he created his own predicament both
by failing to object at the appropriate time and by inviting the court to do the very thing of which he
now complains. See Tenn. R. App. P. 36(a). This court is loath to place a trial court in error when
the party complaining on appeal failed to take corrective action with respect to any error which
allegedly occurred below, and we are particularly loath to do so where the complaining party
affirmatively acquiesced in the trial court’s action. See id. (nothing in rule requires “relief be granted
to a party responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error”). This issue is waived.
IV. TRIAL COURT’S QUESTIONING OF WITNESSES
The defendant claims that the trial judge was biased and improperly asked questions
of State witnesses that bolstered their testimony and “constituted prohibited judicial comment.” See
Tenn. Const. art. VI, § 9. Responding to the State’s contention that he waived the issue, the
defendant asserts that the trial judge’s questioning constituted plain error.
The Tennessee Constitution prohibits judges from making any comment “with respect
to matters of fact.” Tenn. Const. art. VI, § 9; State v. Suttles, 767 S.W.2d 403, 406 (Tenn. 1989).
The aim of this rule is to avoid giving “the jury any impression as to [the judge’s] feelings or to make
any statement which might reflect upon the weight or credibility of evidence or which might sway
the jury.” Suttles, 767 S.W.2d at 407; see State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991).
“It is natural that jurors should be anxious to know the mind of the Court, and follow it; therefore,
a Court cannot be too cautious in [its] inquiries.” McDonald v. State, 89 Tenn. 161, 164, 14 S.W.
487, 488 (Tenn. 1890).
That said, our Tennessee Rules of Evidence specifically permit the interrogation of
witnesses by the trial judge:
(b) Interrogation by Court. The Court may interrogate witnesses.
(c) Objections. Objections . . . to interrogation by [the court] may be
made at the time or at the next available opportunity when the jury
is not present.
Tenn. R. Evid. 614(b), (c). So long as the inquiry is impartial, trial courts may ask questions to
either clarify a point or to supply any omission. See Collins v. State, 220 Tenn. 275, 416 S.W.2d 766-26-
(Tenn. 1967); Parker v. State, 132 Tenn. 327, 178 S.W. 438 (Tenn. 1915). Also, our rules entrust
to the trial court the power to “exercise appropriate control over the presentation of evidence and
conduct of the trial when necessary to avoid abuse by counsel.” Tenn. R. Evid. 611(a).
Furthermore, Tennessee Rule of Appellate Procedure 36(a) states that appellate relief
is generally not available when a party has “failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of any error.” Tenn. R. App. P. 36(a); see State v. Sims, 45
S.W.3d 1, 16 (Tenn. 2001). The failure to make a contemporaneous objection constitutes a waiver
of the issue on appeal.
Before discussing the specific testimony at issue, we note, as the State points out, that
the defendant failed to object, move for a mistrial, or otherwise complain before the trial court began
its examination of the witnesses, during the course of its examinations, or during “the next available
opportunity when the jury [was] not present.”21 Tenn. R. Evid. 614(c); see Tenn. R. App. P. 36(a);
Tenn. R. Evid. 103(a)(1); State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987).
Therefore, this issue, with regard to each of the four examinations, has been waived. Failing to
object constitutes a procedural default for which relief may not be obtained absent the existence of
plain error. See Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988); State v. Killebrew,
760 S.W.2d 228, 235 (Tenn. Crim. App. 1988).
A. Appellate Review of Plain Error
Before an error is recognized as plain error, it must be “plain” and must affect a
“substantial right” of the accused. The term “plain” equates to “clear” or “obvious.” See United
States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). Plain error is not error that is
simply conspicuous; rather, it is especially egregious error that strikes at the fairness, integrity, or
public reputation of judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim.
App. 1983).
21
After defense counsel’s redirect examination of B.R. but prior to the trial judge’s questioning of B.R., the trial
judge asked for a bench conference. The record fails to reflect what transpired, and immediately after the bench
conference, the trial judge asked B.R the questions that are the subject of this issue.
Neither during nor after the trial judge’s examination of B.R. did defense counsel object. It is unclear from the
record whether defense counsel objected during the inaudible bench conference. It is well settled that when a party seeks
appellate review, there is a duty to prepare a record which conveys a fair, accurate and complete account of what
transpired with respect to the issues forming the basis of the appeal. See State v. Ballard, 855 S.W .2d 557, 561 (Tenn.
1993) (holding failure to include transcript precludes appellate review); State v. Oody, 823 S.W.2d 554, 559 (Tenn.
Crim. App. 1991) (holding trial court’s ruling presumed correct in the absence of an adequate record on appeal). W hen
the record is incomplete and does not contain the relevant information documenting an issue presented for review, or
portions of the record upon which the party relies, an appellate court is precluded from considering the issue. See State
v. Roberts, 755 S.W .2d 833, 836 (Tenn. Crim. App. 1988). Absent the necessary relevant material in the record, we
cannot find that defense counsel objected to the trial court’s questioning of B.R.
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In State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994), this court defined
“substantial right” as a right of “fundamental proportions in the indictment process, a right to the
proof of every element of the offense and . . . constitutional in nature.” Id. at 639. In that case, this
court established five factors to be applied in determining whether an error is plain:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error must be “necessary to do substantial justice.”
Id. at 641-42 (footnotes omitted). Our supreme court characterized the Adkisson test as a “clear and
meaningful standard” and emphasized that each of the five factors must be present before an error
qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).
B. Questioning of the Victim
Although B.R. testified during the State’s case-in-chief, the defendant recalled B.R.
to the stand in his defense. During her testimony, the trial judge held a bench conference, but the
record fails to reflect what transpired. Afterwards, the trial judge advised B.R. that the court was
going to ask questions, and the trial judge reminded her that she was under oath. The following
exchange then ensued:
Q. [B.R.], what you have called inappropriate that [the defendant]
has done to you, have you made any of these things up?
A. No.
Q. Has anyone told you what to say against him?
A. No.
Q. Or has anyone coached you to say things against him about the
inappropriate things?
A. No.
Q. Anybody coached you to say that things were inappropriate that
he did to you?
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A. I don’t understand the question very well.
Q. Okay. By the word “coached,” I meant basically told you what to
say or how to say it against him.
A. No.
Q. Thank you. Now, you all have follow-up on any of these three or
four questions, if you’d like.
The State then asked a few follow-up questions regarding whether she was told to tell
the truth and whether she was telling the truth. B.R. answered affirmatively. The State previously
had asked a similar question on its direct examination of B.R. In that instance, the State asked,
“[B.R.], would you make this up just so you could get out of going to gymnastics?” B.R. replied,
“No, I could never make up something like this.”
In applying the Adkisson plain error factors in this case, our analysis ends after factor
one, “the record must clearly establish what occurred in the trial court.” 899 S.W.2d at 641. In the
present case, the record is silent as to what transpired during the bench conference held immediately
prior to the trial judge questioning B.R. This court may not speculate as to what was discussed,
whether defense counsel objected to such questioning, whether defense counsel failed to object for
tactical reasons, see Adkisson, 899 S.W.2d at 641-42 (“[T]he accused [must not have waived] the
issue for tactical reasons”), whether defense counsel requested such questioning, or whether the
bench conference regarded another issue. Therefore, because the first factor in Adkisson is not
satisfied, we do not find plain error.
C. Questioning of State’s Gymnastics Expert
The trial judge also questioned the State’s gymnastics expert, Ms. Fox. The trial
judge inquired, “In your opinion, ma’am, should a gym instructor obtain parental consent before
videotaping a participant.” Ms. Fox replied, “Not if it’s a legitimate video for training purposes.”
The defendant claims that this question was biased and improper. The trial judge asked this “one
follow-up question” after several questions from the jury.
We decline to find plain error because “a clear and unequivocal rule of law” has not
been breached and because the defendant’s substantial rights have not been adversely affected.
Adkisson, 899 S.W.2d at 641. The defendant claims that this question amounted to a judicial
comment, violating Tennessee Constitution Article 6, section 9. See Tenn. Const. art. VI, § 9. In
our view, the question did not amount to a comment on the evidence. The record does not contain
any indication of the trial court’s opinion of the evidence, and the jury was properly informed that
it had complete fact-finding authority.
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D. Questioning of Victim’s Mother
The defendant also claims that the trial judge improperly asked B.R.’s mother a
question that bolstered B.R.’s testimony. After re-cross examination, the trial court allowed the jury
to submit in writing proposed questions to the witness. The prosecution and defense counsel silently
read each submitted question. The trial judge inquired outside the hearing of the jury whether there
were any objections, and both parties replied, “No, Your Honor.” Thus, the trial judge read each
question to B.R.’s mother, and she answered each one in turn. The defendant now claims that the
last question was improper. The trial judge asked, “Do you know if [B.R.] shared her story about
[the defendant] with any of her friends at any time?” B.R.’s mother answered, “Yes, she has.”
Again, the trial court has discretion to interrogate witnesses, Tenn. R. Evid. 614(b),
and in the present case, the trial court examined B.R.’s mother by asking jury-submitted questions.22
22
Regarding such questions, Tennessee Rule of Criminal Procedure 24.1(c) provides:
Juror Questions of W itnesses. – In the court’s discretion, the court may permit a
juror to ask a question of a witness. The following procedures apply:
(1) W ritten Submission of Questions. – The juror shall put the questions in writing
and submit it to the judge through a court officer at the end of a witness’s testimony.
A juror’s question shall be anonymous and the juror’s name shall not be included
in the question.
(2) Procedure After Submission. – The judge shall review all such questions and,
outside the hearing of the jury, shall consult the parties about whether the question
should be asked. The judge may ask the juror’s question in whole or part and may
change the wording of the question before asking it. The judge may permit counsel
to ask the question in its original or amended form in whole or part.
(3) Jury Instructions. – W hen juror questions are permitted, the court shall instruct
jurors early in the trial about the mechanics of asking a question and to give no
meaning to the fact that the judge chose not to ask a questions or altered the
wording of a question submitted by a juror.
(4) Retaining Questions for Record. – All jurors’ questions – whether
approved or disapproved by the court – shall be retained for the record.
Tenn. R. Crim. P. 24.1(c).
This rule became effective July 1, 2006, as part of a comprehensive “reformatting” of all of the Criminal
Procedure Rules. See Compiler’s Notes. An earlier version of Rule 24.1 provided:
Juror Questions of W itnesses. – In the court’s discretion, a juror desiring to
propound a question to a witness may be permitted to do so. The juror must put the
question in written form and submit it to the judge through a court officer at the end
of a witness’s testimony. The judge shall review all such questions and, outside the
hearing of the jury, shall consult the parties about whether the question should be
(continued...)
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See State v. Robert Bacon, No. 03C01-9608-CR-00308, slip op. at 32 (Tenn. Crim. App., Knoxville,
Jan. 8, 1998) (concluding that the trial judge, in asking two questions submitted by the jury, did not
comment on the evidence such that it violated the defendant’s rights).
We see nothing in the judge’s questioning which would leave an improper impression
with the jury as to his feelings about the evidence, and the judge made no statements which would
reflect upon the weight or credibility of the evidence, including B.R.’s testimony; thus, we find that
this contention provides no basis for a reversal because the question did not amount to a judicial
comment and did not adversely affect the defendant’s rights.
E. Questioning of State’s Social Worker
Last, the defendant claims that the trial judge asked improper questions of State
witness Ms. Thompson, the licensed clinical social worker with Our Kids Center. After cross-
examination and before questions from the jury, the trial judge asked Ms. Thompson several
questions, as follows:
Q. Ma’am, you used the word “pain” in one of your answers.
A. Yes.
Q. How many times was there a report by the child of experiencing
“pain,” using that word.
A. I did not ask her quantitative.
Q. How many times in your notes or your recollection was that word
used in the context of the touching?
A. Of the medical? Basically, I just said was there any - did you
experience any pain or have any bleeding?
Q. An the answer was?
22
(...continued)
propounded. The judge, in his or her discretion, may ask the juror’s question in
whole or part and may change the wording of the juror’s question before
propounding it to the witness . . . .
Tenn. R. Crim. P. 24.1(c).
The earlier version took effect on July 1, 2003, and governed the defendant’s trial which commenced July 7,
2003.
-31-
A. She said that there was no bleeding, and she felt pain when he
touched her private spot.
We again decline to find plain error. In answering a question on direct examination,
Ms. Thompson testified that B.R. told her she experienced pain when the defendant touched her
“private spot.” Neither the State nor the defendant questioned Ms. Thompson further about this
statement. The trial court’s question was cumulative and did not adversely affect the defendant’s
rights.
V. VICTIM’S MEDICAL REPORT
Relying on his rights to present a defense and to a fair trial, the defendant complains
that the trial court erroneously refused to allow his defense expert to testify regarding the findings
of a medical examination indicating that the victim had no physical injuries. The State claims that
the evidence was irrelevant and that the examination could neither confirm nor exclude any sexual
contact between the defendant and the victim.
As quoted in the preceding issue, the record reflects that when Ms. Thompson, a
licensed clinical social worker, interviewed the victim, the victim reported that she experienced some
“pain” when the defendant touched her but no bleeding. The trial court became involved in
questioning the witness and asked how many times the victim had reported experiencing pain and
how many times the word “pain” appeared in the witness’s notes. Ms. Thompson responded that
she did not ask the victim how many times pain was involved; rather, the victim told her that she felt
pain when the defendant touched her “private spot.”
At the conclusion of the State’s case-in-chief, the defendant proffered the testimony
of Dr. Edmond Yabut, a board certified emergency physician. Doctor Yabut was offered as an expert
in pediatrics, and the defense wanted Dr. Yabut to testify that the victim’s references to pain when
the defendant touched her would be consistent only with an injury to the hymen and that a physical
examination of the victim had revealed no such injury. The testimony, the defense insisted, was
relevant to the veracity of the victim.
The State cross-examined Dr. Yabut on the proffer. Doctor Yabut was unaware that
the victim told Detective Breedlove that she experienced no pain. Doctor Yabut testified that pain
is a “very objective finding.” He opined that if the defendant had just touched the victim’s “majora
and the minora,” no injury would be expected.
The trial court questioned the parties whether “pain” was a disputed factual issue.
The State insisted that whether the victim experienced pain was a collateral matter for which
extrinsic proof should not be admitted. The defense admitted that causing pain is not an element of
aggravated sexual battery or exploitation of a minor. The trial court then excluded Dr. Yabut’s
testimony finding that it would not substantially assist the trier of fact to determine a fact in issue.
-32-
On appeal, the State attaches significance to the medical report of the victim’s
examination having not been admitted or authenticated. The State argues that because the defendant
did not seek to introduce the report into evidence, the defendant was prohibited from eliciting Dr.
Yabut’s testimony regarding the report. We disagree.
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.
Tenn. R. Evid. 703. At any rate, the trial court’s exclusion of Dr. Yabut’s testimony was not based
on the admissibility of the medical report; the trial court did not regard the victim’s pain or lack
thereof to be a fact in issue and did not regard Dr. Yabut’s testimony as substantially assisting the
trier of fact to determine a fact in issue.
All evidence, including expert testimony, must be relevant. Tenn. R. Evid. 402.
Relevant evidence is evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Id. 401. Relevant evidence may be excluded if its probative value is
“substantially outweighed” by the danger of unfair prejudice. Id. 403.
The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). Rule
702 addresses the need for expert testimony and the qualifications of the expert: “If scientific,
technical, or other specialized knowledge will substantially assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise.” Tenn. R.
Evid. 702. Its counterpart, Rule 703, focuses on the reliability of expert opinion testimony.
Generally, the admissibility of expert testimony is a matter entrusted to the sound discretion of the
trial court, and there can be no reversal on appeal absent clear abuse of that discretion. State v.
Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).
The defendant argues that Dr. Yabut’s expert testimony rebutted the State’s case and
impeached the credibility of Ms. Thompson and lay witnesses, including the victim. From our
review of the record, Dr. Yabut’s testimony would not have significantly impeached the victim’s
credibility inasmuch as the victim did not testify about any touching involving pain. Ms.
Thompson’s credibility would not have been impeached; her testimony simply related what the
victim had said. Other trial testimony had shown that the victim made inconsistent statements at
different times.
It is troubling that the State elicited from Ms. Thompson the victim’s report of
experiencing some pain, that the trial court then questioned Ms. Thompson about the same matter,
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and that the State later argued that whether the victim experienced pain was a collateral matter. It
strikes us that the State and the trial court share responsibility for opening this line of questioning
and that the defense was thereby entitled to explore the same area. To be sure, Dr. Yabut’s testimony
appears marginally relevant, but that assessment goes to the weight, not the admissibility, of his
testimony. Even so, we are convinced that any error in disallowing Dr. Yabut’s testimony is
harmless. By its own terms, the medical report, which is present in the record, indicated that the
victim’s examination neither confirmed or ruled out the possibility of any type of sexual contact.
For these reasons, the defendant is not entitled to a new trial on this claim.
VI. COMPULSORY JOINDER AND DOUBLE JEOPARDY
In an issue raised in a Tennessee Rule of Appellate Procedure 10 interlocutory appeal,
joined on appeal with the defendant’s Rule 3 issues, the defendant complains that the trial court
should not have severed the three child rape counts, over his objection, on the morning that trial
began. He insists that the trial court procedurally erred in considering the motion and that the State’s
motivation for seeking severance was to gain an improper tactical advantage.23 As a result, he argues
and that a future trial on the severed rape charges is barred by the compulsory joinder provisions of
the Tennessee Rules of Criminal Procedure and by state and federal constitutional double-jeopardy
guarantees. The State counters that the trial court properly severed the rape charges because they
were not part of the same criminal episode as the other charges and because severance was necessary
to promote a fair determination of the defendant’s guilt or innocence of each offense.
A. Consolidation and Severance of Offenses
We can quickly dispose of the defendant’s procedural objection to the timing of the
State’s motion. From the record before us, it does not appear that the defendant objected to the
motion as untimely. That argument is, therefore, waived. See Tenn. R. Crim. P. 14(b)(2)(A); Tenn.
R. App. P. 36(a).
Turning next to the substance of the State’s motion, the written motion to sever states,
in its entirety, the following:
Comes now the State of Tennessee, by and through the office
of the District Attorney General, pursuant to Tenn. R. Crim. P. 13,
and State v. Leath, No. 01C01-9511-CC-00392 (Tenn. Crim. App.
1998) (attached), and moves this Honorable Court to sever the rape
counts from all other offenses in the related case.
23
Although the defendant impugns the State’s motive in seeking to sever the child rape counts on the basis of
gaining an unfair tactical advantage in the trial of the aggravated sexual battery charges, we do not discern from the
defendant’s presentation and analysis of this issue on appeal that he is asserting reversible error in connection with his
aggravated sexual battery convictions. W e, accordingly, confine our review to the question whether a future trial on the
severed rape charges is barred.
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This motion, to say the least, is uninformative, and the transcript of the severance hearing provides
marginal enlightenment. We discern that the State supported its severance request on the basis that
the videotapes depicting the victim would be relevant to the aggravated sexual battery counts but less
probative of the child rape counts. The defendant argued against severance based on judicial
economy and the victim’s expected testimony intertwining both types of offenses. The trial court
ruled,
Now in this case, the Court finds that the motion to sever[] is
well taken and shall be sustained. Noted defendant’s objection. The
Court finds that it is deemed appropriate to promote a fair
determination of the defendant’s guilt or innocence in each offense
pursuant to Rule 14(b)(2)(A) (inaudible) discretion in that regard. So
those three counts will be severed.
We begin by noting that each count in the charging instrument in this case alleges a
time frame of “May 2001 through June 2002, inclusive.” The State-supplied bill of particulars
described the child rape offenses in Counts One, Three, and Five of the original charging
instrument24 in the following terms:
Count 1
Date of the offense: after the Fall Fiesta held November 10, 2001 but
before Christmas of 2001 on a date the victim attended gymnastics.
Time of the offense: unknown
Location of the offense: on the “rod floor” of Esprit Gymnastics
located at 7106 Crossroads Blvd., Suite 226, Brentwood, Williamson
County, Tennessee
Nature of the offense: digital penetration
....
Count 3
Date of the offense: Fall of 2001 before the Fall Fiesta held on
November 10, 2001 on a date that the victim attended gymnastics.
Time of the offense: unknown.
24
After the three child rape charges were severed from the trial, the remaining counts were renumbered and
submitted to the jury. In this issue, our references are to the numberings of counts in the original charging instrument.
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Location of the offense: on the “rod floor” of Esprit Gymnasium
located at 7106 Crossroads Blvd., Suite 226, Brentwood, Williamson
County, Tennessee
Nature of the offense: digital penetration
....
Count 5
Date of the offense: June of 2001 through March of 2002 on a date
that the victim attended gymnastics.
Time of the offense: unknown
Location of the offense: on the “rod floor” of Esprit Gymnasium
located at 7106 Crossroads Blvd., Suite 226, Brentwood, Williamson
County, Tennessee
Nature of the offense: digital penetration
The State-supplied bill of particulars for the aggravated sexual battery offenses in Counts Two, Four,
and Six of the original charging instrument mirrored the particulars for Counts One, Three, and Five.
That is, the State particularized the offense in Count Two in terms identical to Count One, including
listing the nature of the offense as digital penetration; it particularized the aggravated sexual battery
offense in Count Four in terms identical to Count Three, including listing the nature of the offense
as digital penetration; it particularized the aggravated sexual battery offense in Count Six in terms
identical to Count Five, including listing the nature of the offense as digital penetration.
Trial court rulings addressing joinder and severance of offenses, pursuant to Rules
of Criminal Procedure 8, 13, and 14, are reviewed for an abuse of discretion. State v. Goodwin, 143
S.W.3d 771, 780 (Tenn. 2004); Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000). As such, a trial
court’s decision to consolidate or to sever offenses will not be reversed unless the “court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting State
v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997)).
Aggravated sexual battery of a child under 13 years of age, T.C.A. § 39-13-504(a)(4)
(2006), is a lesser included offense of rape of a child, id. § 39-13-522. See State v. Elkins, 108
S.W.2d 231, 237 (Tenn. 2003). Thus, the aggravated sexual battery charges in Counts Two, Four,
and Six may well be lesser included offenses of the child rape charges set forth in Counts One,
Three, and Five. Although it is unnecessary to allege lesser included offenses as separate counts in
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an indictment, structuring an indictment in such a manner is not prohibited. See State v. Banes, 874
S.W.2d 73, 80 (Tenn. Crim. App. 1993).
The rape counts, however, are subject to mandatory joinder with the corresponding
aggravated sexual battery counts. Tennessee Rule of Criminal Procedure 8(a)(1) mandates joinder
of the offenses, as alleged, arising from the “same conduct or aris[ing] from the same criminal
episode.”25 See Tenn. R. Crim. P. 8(a)(1)(A) (two or more offenses shall be joined in the same
indictment if they are “based on the same conduct or arise from the same criminal episode”); Banes,
874 S.W.2d at 80 n.7. Accordingly, the defense is correct that, as worded, Counts One and Two,
Counts Two and Three, and Counts Four and Five met the criteria for mandatory joinder.26
Now, we must determine whether the trial court erred in severing the mandatorily
joined child rape offenses from the offenses alleged in Counts Two, Four, and Six. Criminal
Procedure Rule 8(a)(2) provides that a “defendant shall not be subject to separate trials for multiple
offenses [qualifying for mandatory joinder] unless they are severed pursuant to Rule 14.” Tenn. R.
Crim. P. 8(a)(2) (emphasis added). Rule 14 provides that either the State or the defendant may
obtain a severance of offenses that have been mandatorily joined when “appropriate to promote a
fair determination of the defendant’s guilt or innocence of each offense.” Id. 14(b)(2)(A). The
State’s professed concern that the videotapes might not be probative of the rape charges is
insufficient to warrant severance, particularly considering that the defendant opposed the severance,
thereby accepting the risk the videotapes might pose to the rape charges. Furthermore, the State has
not articulated why a limiting instruction to the jury would not have preserved a fair determination
of the defendant’s guilt or innocence of each offense.
Finally, it strikes us that permitting the State to sever offenses in this manner is akin
to the condemned practice “by some prosecuting attorneys of ‘saving back’ one or more charges
arising from the same conduct or from the same criminal episode.” Id. 8(a), Committee Comments;
see State v. King, 717 S.W.2d 306, 307-08 (Tenn. Crim. App. 1986) (second indictment after trial
was prevented by Rule 8, which prevented multiple trials on charges arising from the same conduct
or from the same criminal episode). As the supreme court explained in State v. Carruthers, 35
S.W.3d 516 (Tenn. 2000),
25
W e reject the State’s argument on appeal that the defendant failed to demonstrate that each count was part
of the same criminal episode. We are not persuaded, in the context of charges originally consolidated in a single
indictment and when it is the State’s desire to alter the status quo by a severance of offenses, that the burden is on the
defendant to make such a showing. At any rate, the State’s particulars, as worded, appear to speak in lesser-included-
offense terms, in which case it would be incumbent upon the State to demonstrate otherwise.
26
Even so, the relationship of Counts One through Six to the remaining five counts fall within the realm of
permissive joinder of offenses in Criminal Procedure Rule 8(b) based on partaking “of the same or similar character.”
See Tenn. R. Crim. P. 8(b)(1), (2) (two or more offenses may be joined in the same indictment if the offenses “constitute
parts of a common scheme or plan” or if they “are of the same or similar character”).
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. . . The purpose of Rule 8 is to promote efficient administration of
justice and to protect the rights of the accused. The rule clearly
permits a subsequently returned indictment to be joined with a
previous indictment where the alleged offenses relate to the same
criminal episode. See King v. State, 717 S.W.2d 306 (Tenn. Crim.
App. 1986). This practice, however, does have certain limitations
which, as the comments note, safeguard an accused against
prosecutorial abuse. For example, a prosecutor cannot simply decide
to “save” charges on other offenses arising out of the same conduct
until after a trial is had on the original charges. Obviously, this would
result in multiple trials and prejudice the defendant. This concern,
however, is not present in the case at hand because the subsequent
indictments were returned well before the start of trial.
Id. at 573.
In summary, we hold that because of the rule-based severance errors in this case, the
defendant may not be subjected to a separate trial for the child rape offenses. See King, 717 S.W.2d
at 307-08 (remedy is to bar second trial).
B. Double Jeopardy
Independent of the rules of criminal procedure, the severance ruling in this case has
a constitutional dimension to which we now turn our attention.
The state and federal constitutions both provide that no person shall, for the same
offense, be twice put in jeopardy of life or limb. U.S. Const. amend. V; Tenn. Const. art. I, § 10.
Our supreme court has held that double jeopardy protects a defendant from (1) reprosecution for the
same crime after an acquittal, (2) reprosecution for the same crime after a conviction, and (3)
multiple punishments for the same offense. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996); see
also North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989). As we shall explain, in this
case double jeopardy bars the State from prosecuting the defendant on the three severed rape charges.
The State is permitted to, and often finds it necessary to, allege broad time frames for
a claimed offense when, for example, the “exact” date of the offense cannot be shown. In that
situation, however, the rights of an accused to a unanimous jury verdict and to double jeopardy
protection must be scrupulously observed. The usual precaution to assure jury unanimity is to
require an election of offenses at the close of the proof. See, e.g., State v. McCary, 119 S.W.3d 226,
241 (Tenn. Crim. App. 2003); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). Protection from
a subsequent prosecution, under the double jeopardy clause, attaches to the time frame alleged in the
indictment or perhaps that is more narrowly specified in a bill of particulars. State v. Anderson, 748
S.W.2d 201, 203 (Tenn. Crim. App. 1985) (“defendant would be protected from a subsequent
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prosecution, under the double jeopardy clause, for any claimed offense against an alleged victim in
an indictment which specified the offense occurred within the times alleged in the indictment”),
overruled on other grounds in State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993); see State v. Steve
Mosley, No. 01C01-9211-CC-00345, slip op. at 12 (Tenn. Crim. App., Nashville, Sept. 9, 1993)
(dismissing defendant’s concern that he could be prosecuted for the same drug offense based on
double jeopardy protection for offense within times alleged in the indictment); State v. Kenneth N.
Godwin, No. 87-91-III, slip op. at 6 (Tenn. Crim. App., Nashville, May 24, 1988) (holding on double
jeopardy grounds that defendant could never again be prosecuted for any sexual offense against the
victim committed during the years 1983 and 1984); see also State v Shropshire, 45 S.W.3d 64, 71
(Tenn. Crim. App. 2000) (purpose of the bill of particulars is to provide the accused with sufficient
information about the offense alleged in the indictment to permit the accused (a) to prepare a
defense, (b) to avoid prejudicial surprise at trial, and (c) to enable the accused to preserve a plea of
double jeopardy).
The foregoing constitutional principles dictate the conclusion that double jeopardy
bars the State in this case from subsequently prosecuting the defendant for the rape offenses set out
in Counts One, Three, and Five of indictment, which are included both within the broad time frame
alleged in the indictment and the time frame specified in the bill of particulars.
Accordingly, we hold that retrial on Counts One, Three, and Five is barred by both
the Rules of Criminal Procedure and constitutional double-jeopardy principles.
VII. EVIDENCE CHALLENGES
The defendant claims that on five specific occasions, the trial court permitted the
State to introduce prohibited hearsay and opinion testimony. In addition, the defendant contends that
the trial court, on four separate occasions, excluded legitimate defense evidence. We discuss each
occasion in turn.
A. Victim’s Hearsay Testimony
On direct examination, B.R. testified that when her mother asked her if the defendant
had touched her inappropriately, she replied, “Yes mom, he did.” B.R. further testified, “And I told
her and she was - she was - she kind of felt like something like that was going on.” The State then
asked, “Did your mom tell you that after you told her?” When defense counsel objected on hearsay
grounds, the State argued that the evidence was not offered for the truth of the matter asserted but
to clarify B.R.’s previous statement. The trial court allowed B.R. to answer the question, and B.R.
testified that her mother did tell her that she felt “that something was happening.”
We first address our standard of review of the trial court’s ruling on the hearsay issue.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
Hearsay is not admissible unless admission is authorized by the evidence rules or by other
controlling provisions of law. Id. 802; see id. 803 (establishing hearsay exceptions that do not
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depend upon a showing of declarant’s unavailability); id. 804 (establishing hearsay exceptions that
depend upon a showing of declarant’s unavailability). Accordingly, a trial court’s ruling on whether
a statement is hearsay is a question of law, and the appellate court reviews the issue de novo without
a presumption of correctness. See Shelia Rae Gibbs v. Robin Media Group, No. M1999-00820-
COA-R3-CV, slip op. at 3 (Tenn. Ct. App., Nashville, Aug. 25, 2000); Russell v. Crutchfield, 988
S.W.2d 168, 170 (Tenn. Ct. App. 1998).
The victim’s statement is suggestive of hearsay. Moreover, if we adopted the State’s
argument that the statement was not offered for its truth but that it “illustrat[ed] the victim’s basis
of knowledge about her mother’s suspicions,” then the statement is not relevant according to
Tennessee Rule of Evidence 401. See Tenn. R. Evid. 401 (“‘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.”); id. 402
(“Evidence which is not relevant is not admissible.”). In most cases, if a statement is not offered for
its truth, an issue of relevancy is prompted. In the present case, B.R. testified that her mother had
suspicions, and the State asked B.R. if her mother told her of those suspicions to clarify her
testimony. The basis of B.R.’s knowledge about her mother’s suspicions is inadmissible as
irrelevant to whether the defendant sexually abused B.R. However, because the statement is not
central to the case and not damaging to the defendant, we hold the error is harmless. See Tenn. R.
Crim. P. 52(a); Tenn. R. App. P. 36(b).
B. Detective Breedlove’s Opinion Testimony
Detective Breedlove testified that he was present for two interviews with B.R. prior
to trial and that he was present during her testimony at trial. The State asked, “Detective, when you
reflect on all three of those interviews [sic] were her statements regarding the incidents involving
[the defendant] consistent or inconsistent?” Defense counsel objected, stating that Detective
Breedlove was not entitled to give his opinion in that regard. The State argued that because B.R’s
credibility was attacked on cross-examination, the State could ask about her statements’ consistency.
The State further argued that a lay witness, with “personal knowledge or personal observation,” may
express his or her opinion, if that opinion “would assist the jury in the ultimate decision of fact.”
The trial court overruled the objection and stated that the criteria in Tennessee Rule of Evidence 701
had been met. Therefore, Detective Breedlove testified that B.R.’s three statements were consistent.
Furthermore, he stated that “she told the same thing over and over again.”
The defendant claims on appeal that the trial court erred in admitting this evidence
because “no rule of criminal procedure or rule of evidence allows a lay witness to give an opinion
as to the consistency or inconsistency of someone else’s statement.” The defendant makes the
blanket statement that the testimony “constitutes hearsay, violates the expert opinion rule, invades
the function of the jury and is unknown as an evidentiary proposition.” The only authority cited in
his brief, however, is Tennessee Rules of Evidence 801 and 803. See Tenn. R. Evid. 801, 803. At
trial, the defendant objected on lay opinion grounds only, and in the motion for a new trial and on
appeal, a party is bound by the ground asserted when the party objected at trial, State v. Adkisson,
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899 S.W.2d 626, 634-635 (Tenn. Crim. App. 1994); see also Tenn. R. Evid. 103(a)(1) (“Error may
not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the
party is affected, and . . . [i]n case the ruling is one admitting evidence, a timely objection or motion
to strike appears of record, stating the specific ground of objection if the specific ground was not
apparent from the context.”). Therefore, the only claim that survives the trial process regards Rule
701, opinion testimony by a lay witness. See Tenn. R. Evid. 701.
However, the defendant fails to cite authority to support his claim based on Rule 701.
Tennessee Rule of Appellate Procedure 27(a)(7) states, “The brief of the appellant shall contain . .
. [a]n argument . . . with citations to the authorities and appropriate references to the record (which
may be quoted verbatim) relied on . . . .” Tenn. R. App. P. 27(a)(7). Furthermore, Tennessee Court
of Criminal Appeals Rule 10(b) states, “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.” Tenn. Ct.
Crim. App. R. 10(b). Therefore, the defendant waived this issue.
C. B.R.’s Mother’s Opinion Testimony of B.R.’s Truthfulness
B.R.’s mother testified that she observed Detective Breedlove’s September 10, 2002
interview of B.R. At trial on direct examination, the following occurred:
Q. During the course of that interview, did anything strike you about
[B.R.’s] demeanor?
A. Her demeanor?
Q. While she was discussing things?
A. While she was discussing things that were happening, that had
happened to her, it - I just felt sick. I knew that she was being totally
honest. She was telling him exactly what happened.
Defense counsel objected, stating that the jury must decide if B.R. was being truthful. The trial court
stated that the answer responded to a “question about demeanor.” Defense counsel argued that the
answer exceeded the scope of the question. The trial court overruled the objection, and B.R.’s
mother further testified that she felt B.R. acted “somber,” “uncomfortable,” “awkward,” “silly, and
not like herself at all.”
The defendant claims that the trial court erred by admitting B.R.’s mother’s
testimony; however, we decline to reach the merits of this issue because the defendant waived it by
failing to cite to authority in his brief. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
The defendant states that “this [testimony] is an opinion as to the veracity or credibility of another
person” and that “[t]his sort of testimony is an opinion not permitted by a lay witness,” yet he fails
to cite any rule or case law to support his contention. Therefore, the issue is waived.
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D. B.R.’s Mother’s Opinion Testimony of B.R.’s Reluctance to Disclose
On B.R.’s mother’s redirect examination, the State asked, “Why do you think [B.R.]
didn’t tell you?” Defense counsel objected on speculation grounds. The State decided to rephrase
the question after “build[ing] a foundation.” B.R.’s mother described her “close relationship” with
her daughter, testifying that she had insight into her daughter’s behavior. The State then asked, “Do
you feel that that insight may help the jury understand why [B.R.] didn’t disclose at an earlier time?”
Defense counsel again objected on speculation grounds and improper lay opinion testimony. The
trial court overruled the objection based on Tennessee Rule of Evidence 701. B.R.’s mother then
answered the question, stating that B.R. “was afraid.”
On appeal, the defendant merely states that this evidence was speculation testimony
without citing any authority, and he argues that it constituted improper lay opinion testimony under
Tennessee Rule of Evidence 701. See Tenn. R. Evid. 701. Lay witnesses may give testimony in the
form of an opinion where the testimony is “(1) rationally based on the perception of the witness and
(2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in
issue.” Id. 701(a). The testimony is not objectionable merely because it embraces an ultimate issue
before the jury. Tenn. R. Evid. 704. However, the admission of lay opinion testimony is limited to
those situations wherein the jury could not readily draw its own conclusions on the ultimate issue,
without the aid of the witness’s opinion testimony. Blackburn v. Murphy, 737 S.W.2d 529, 533
(Tenn. 1987). Put another way, the lay witness may express an opinion to describe her observations
if that is the only way in which she can effectively communicate her observations to the jury. State
v. Brown, 836 S.W.2d 530, 550 (Tenn. 1992). When the admission or exclusion of opinion evidence
is challenged on appeal, it is reviewable only for abuse of discretion. See, e.g., State v. Gray, 960
S.W.2d 598, 606 (Tenn. Crim. App. 1997).
Here, the trial court did not abuse its discretion in allowing B.R.’s mother’s
testimony. Her opinion was rationally based on her perception and helpful to a clear understanding
of her testimony. The State adequately built a foundation, demonstrating the close relationship
between B.R. and her mother and the latter’s insights into B.R.’s behavior. Furthermore, defense
counsel ably attacked B.R.’s credibility on cross-examination and clearly pointed out to the jury that
B.R. waited months before telling her mother of the abuse. B.R. testified that she did not
immediately tell her mother because she was afraid that she would get in trouble. B.R.’s mother’s
opinion reiterated the victim’s testimony.
E. Defendant’s Excluded Testimony
1. Defendant’s Statements Regarding Gymnastic Routines
During defense counsel’s cross examination of B.R., the following exchange took
place:
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Q. Now [B.R.], during this time before you got injured were there
some routines that you were having problems with?
A. What do you mean by routines?
Q. Some skills?
A. Yes.
Q. What was that?
A. Back handspring.
Q. The back handspring?
A. On the beam.
Q. On the beam?
A. Yes.
Q. [The defendant] had told you, did he not, if you couldn’t do that -
A. (Inaudible).
Q. That you could not move on to the next level?
The State objected on hearsay grounds, and defense counsel argued that the question goes to B.R.’s
state of mind, “her motivation.” The State responded that the question must go to the declarant’s
state of mind, and the trial court sustained the objection.
After the ruling, cross-examination continued, as follows:
Q. Did you have trouble doing – what did you call it, the back –
A. Handspring.
Q. Back handspring?
A. Yes.
Q. And you could not move on to the next level until you did that;
right?
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A. Right.
Q. How long had you been trying to do that? And I understand it is
a very hard routine?
A. A very long time.
Q. It’s hard; isn’t it?
A. Yes.
Q. But you couldn’t move up to the next level until after you got that
done; right?
A. Right.
The defendant contends that “[t]his question and answer was designed to show the
state of mind and effect that the statement had on the alleged victim.” He further argues that the trial
court “erroneously sustained the objection as being ‘hearsay.’” The defendant, however, fails to cite
authority in his brief. Therefore, he waived the issue. See Tenn. R. App. P. 27(a)(7) (“The brief of
the appellant shall contain . . . [a]n argument . . . with citations to the authorities and appropriate
references to the record (which may be quoted verbatim) relied on . . . .”); Tenn. Ct. Crim. App. R.
10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate references
to the record will be treated as waived in this court.”).
Waiver aside, we will discuss the issue to elaborate on an evidentiary point stated
earlier. Again, “‘[h]earsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted,” Tenn. R. Evid.
801(c), and it is not admissible unless admission is authorized by the evidence rules or by other
controlling provisions of law, id. 802. A trial court’s ruling on whether a statement is hearsay is a
question of law, and the appellate court reviews the issue de novo without a presumption of
correctness. See Shelia Rae Gibbs, slip op. at 3; Russell, 988 S.W.2d at 170.
Here, the statement that the defendant told B.R. she could not move to the next
gymnastic level unless she could perform the back handspring was not offered for its truth. Instead,
we surmise that the defendant offered the evidence to show circumstantially that friction developed
between B.R. and the defendant regarding gymnastic skills. Hearing that the defendant told B.R. that
she may not advance in her sport, the jury could have inferred that the defendant’s and B.R.’s
relationship was strained for reasons other than sexual abuse. Thus, the importance of the statement
lies in the fact that it was said, not its truth. Because the statement was not hearsay and was relevant,
it was admissible.
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That being said, however, we find that the error in not admitting the statement was
harmless. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). After the trial court sustained the
State’s objection, defense counsel ably elicited from B.R. that she was aware that if she failed to do
the skill, then she would fail to advance to the next gymnastic level. Furthermore, the jury heard
testimony that the defendant had become so angry when B.R. refused to do the back handspring that
he left the gymnasium. From this evidence, the jury could likewise infer that the defendant’s and
B.R.’s relationship was strained for reasons other than sexual abuse. Because the testimony is
essentially the same, “considering the whole record,” this error did not prejudice the defendant, and
we find, therefore, the error harmless. Tenn. R. App. P. 36(b); see Tenn. R. Crim. P. 52(a).
2. Defendant’s Statements Regarding Digital Camera
On direct examination, the defendant testified that the police seized several
videotapes, including digital tapes, from his apartment. When asked “[w]hat tape was in the digital
camera,” the defendant replied:
Well, what happened was, is that [Detective Breedlove] asked
some questions: Are we going to see any pornographic something or
another. I don’t even remember exactly what he said.
And I said: I don’t believe so.
And he said: Well, can we just play it?
So I went over there and showed him how to play it.
The State objected on hearsay grounds, and the trial court sustained the objection, instructing the jury
to disregard what the defendant told Detective Breedlove.
In the defendant’s brief, he claims that his statement was not hearsay because it “was
designed to deal with issues concerning what [he] knew or information he told the detective
himself.” We refuse to reach the merits of this issue because the defendant, again, failed to cite
authority and therefore waived the issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b).
3. Defendant’s Statements Denying Guilt
Also on direct examination, the defendant testified that after the search of his
apartment, he accompanied Detective Breedlove to the police department and gave a statement.
Then defense counsel asked, “In that statement, did you admit – .” The State interrupted defense
counsel and objected on hearsay grounds. The trial court instructed defense counsel to finish his
question, and defense counsel inquired, “In your conversation with Detective Breedlove, did you
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admit to any inappropriate touching of [B.R.]?” The State renewed its objection, and the trial court
sustained the objection.
The defendant argues, rather confusingly, that “[g]iven the nature of the questions
about the conversation and as to what [the defendant] said and what the detective said, the fact that
[the defendant] denied his guilt was clearly not hearsay.” The defendant cites no authority in his
argument; thus, he waived the issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
F. Ms. Melton’s Excluded Testimony
On direct examination, Ms. Melton testified that in July of 2002, B.R. was afraid to
do a back handspring on the beam. Ms. Melton testified that the defendant “got really tough on her”
and that B.R. “was crushed.” Ms. Melton stated that B.R.’s mother “was mad and upset with [the
defendant].” At this point, the State objected on hearsay grounds, and the trial court sustained the
objection, instructing the jury to disregard the statement regarding B.R.’s mother. Ms. Melton then
testified that from that day forward, B.R. refused to look at the defendant, hug him, or talk to him.
She testified that B.R. “kept coming up with excuse, after excuse, after excuse, of why she didn’t -
couldn’t do gymnastics.” Ms. Melton testified that the back injury may have been legitimate, but
she did not believe that it was. She testified, “I just never believed it was, not by the way her parents
responded or anything else.” The State objected, stating no basis, and the trial court sustained the
objection.
On appeal, the defendant contends that the trial court erroneously sustained the
objections and “failed to permit [Ms. Melton] to testify as to conversations that she had with the
alleged victim which expressed the victim’s demeanor.” The defendant also claims that Ms.
Melton’s testimony on this issue was critical to impeach B.R.’s testimony. First, we recognize that
the record does not evidence any conversations between Ms. Melton and the victim regarding this
issue. Ms. Melton admitted on cross-examination that she did not personally witness the occurrence
in July 2002. Second, the defendant failed to cite authority in his argument, and therefore, he waived
the issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
VIII. IMPROPER CROSS-EXAMINATION OF DEFENDANT
The defendant contends that the trial court erred by allowing the State to improperly
cross-examine him regarding voice stress analysis relating to his voice on the “perp phone call.” The
following testimony transpired on cross-examination:
Q. Wouldn’t you agree that someone that is shocked or caught off
guard, that fact can be detected in their voice?
A. I wouldn’t necessarily agree with that.
Q. Have you ever heard of voice stress analysis?
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A. I’ve heard of the concept. I’ve heard of it, yes.
Q. Are you aware that people can take a recording like this and
determine whether or not someone is under stress, similar to that of
a lie detector?
A. I don’t know anything about it.
Defense counsel objected to this line of questioning on relevance grounds, and the
State argued, “It’s relevant if [the defendant] is aware of [voice stress analysis] and still believes that
stress cannot be heard in someone’s voice.” The trial court overruled the objection, and the
defendant stated that he was not aware that law enforcement agencies could use this tool to detect
distress in a person’s voice.
To be sure, the propriety, scope, manner, and control of cross-examination rests
within the sound discretion of the trial court. See State v. Hutchison, 898 S.W.2d 161, 172 (Tenn.
1994); State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App. 1994). Absent a clear abuse of this
discretion that results in manifest prejudice to the accused, this court will not interfere with the trial
court’s exercise of its discretion on matters pertaining to the examination of witnesses. State v.
Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 1984). In addition, “[a] witness may be cross-
examined on any matter relevant to any issue in the case, including credibility.” Tenn. R. Evid.
611(b).
In the present case, the defendant argues that the trial court erred in allowing cross-
examination regarding “voice stress analysis” because it was irrelevant similar to how polygraph
evidence is irrelevant. See State v. Damron, 151 S.W.3d 510, 515 (Tenn. 2004) (stating that
“polygraph test results, testimony concerning such results, and testimony concerning a defendant’s
willingness or refusal to submit to a polygraph test are inadmissible”). In our opinion, the State’s
cross-examination was misleading, factually incorrect, and irrelevant; it should not have been
allowed.
From reported case law on the subject of voice stress analysis, we glean the following:
The premise on which voice stress analysis is based is that all speech
is comprised of t[wo] components. The first are fundamental
frequencies determined mainly by laryngeal structures. The second
are formant frequencies that are produced when air is passed through
the vocal tract. Voice stress analysis analysts believe speech also
produces an inaudible FM signal, or micro-tremor, of 8 to 14 Hz.
The belief is that this signal’s presence is greatest during normal
speech and dampened when a person is placed under stress. A voice
stress instrument is designed to monitor and display the variance in
microtremors as a person responds to specific questions.
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Smith v. State, 797 So. 2d 503, 524 n.5 (Ala. Crim. App. 2000). Additional enlightenment on the
subject appears in United States v. Traficant, 566 F. Supp. 1046, 1046 (E.D. Ohio 1983).
. . . Voice stress analyzers and psychological stress evaluators (PSE)
detect and measure subaudible microtremors in a person’s voice. The
amount of stress imposed on the speaker is alleged to affect the
microtremors in his voice. The stress is allegedly produced by the
speaker’s deception. The first psychological stress evaluator was
marketed in 1971. Reportedly, it was developed as a covert lie
detection device which could be used without the attachment of
sensors (as are necessary with polygraph tests) and hence could be
employed without the knowledge of the subject being tested.
....
. . . The opinion of at least one researcher in the field is that
there have been very few well-controlled studies of the reliability of
voice stress analysis; and none of these studies have shown that voice
stress analyzers are effective in detecting deception. Several studies
revealed that PSE testing results yielded an accuracy rate only slightly
higher than, and in some cases lower than, chance expectancy rates.
566 F. Supp at 1046-47. See Virgin Islands v. Leycock,19 V.I. 59 (D. Virgin Ils. 1982) (commenting
that the test is “probably viewed by courts with even greater disdain than lie detector (polygraph)
tests”).
Against this background, prosecution counsel’s assertion “that people can take a
recording like this and determine whether or not someone is under stress, similar to that of a lie
detector” imports to the jury some notion of infallibility that simply does not exist. We fail to detect
any relevancy to this misleading line of questioning about an unreliable analysis with no proven track
record of accuracy. We reject outright the State’s argument that the voice stress analysis questions
were relevant to impeach the defendant’s credibility. The defendant simply maintained that he
“wouldn’t necessarily agree with” the State’s assertion “that someone that [sic] is shocked or caught
off guard, that fact can be detected in their voice.” This court, most assuredly, disputes the State’s
assertion; indeed, this court has found nothing to support the state’s factual assertion.
The question thus becomes whether the improper cross-examination constitutes
reversible error. We believe it does not. In our view, the improper cross-examination neither
“affirmatively appear[s] to have affected the result of the trial on the merits,” Tenn. R. Crim. P.
52(a), nor “involve[s] a substantial right” of the defendant, Tenn. R. App. P. 36(b).
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VIII. AND IX. JURY INSTRUCTION
The defendant raises two issues regarding the same jury instruction. The instruction
given by the trial court, in pertinent part, is as follows:
For you to find the defendant guilty of [aggravated sexual battery],
the State must have – must have proven, beyond a reasonable doubt,
the existence of the following essential elements: (1) The defendant
had unlawful sexual contact with the alleged victim, in which the
defendant intentionally touched the alleged victim’s intimate parts, or
the clothing covering the immediate area of the alleged victim’s
intimate parts; or the alleged victim had unlawful sexual contact with
the defendant in which the victim intentionally touched the
defendant’s or any other person’s intimate parts or the clothing
covering the immediate area of the defendant’s, or any other person’s
intimate parts; and that the alleged victim was less than 13 years of
age, and that the defendant acted either intentionally, knowingly or
recklessly.
(Emphasis added.)
“[The] defendant has a constitutional right to a correct and complete charge of the
law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court must describe each element
of an offense and define the element in connection with that offense. See State v. Cravens, 764
S.W.2d 754, 756 (Tenn. 1989). A charge is prejudicial error if it fails to “submit the legal issues or
if it misleads the jury as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
First, the defendant states that “recklessness” modifies the age of the victim and that
the trial court failed to explain that the mens rea of recklessness was only applicable to this element
and not the nature of conduct element. Thus, he argues that the instruction violates the burden of
proof requirement, see T.C.A. § 39-11-201 (2006), his federal and state due process rights, and his
rights to a jury trial because the instruction stated that aggravated sexual battery could be committed
if the “defendant acted either intentionally, knowingly or recklessly.”
Second, the defendant states that the trial court instructed the jury that the State could
prove the required mental state for aggravated sexual battery in the disjunctive. He contends that
the use of the disjunctive “allowed a verdict to be returned which was not unanimous . . . in violation
of [his] federal and state rights to a jury trial and the right to a unanimous verdict.”
Similar to the disjunctive jury instruction in State v. Chester Wayne Walters, No.
M2003-03019-CCA-R3-CD, slip op. at 12-15 (Tenn. Crim. App., Nashville, Oct. 4, 2004), the
present case’s jury instruction specifically stated that it required the jury to find that the sexual
contact was intentional. See State v. Faulkner, 154 S.W.3d 48, 58-59 (Tenn. 2005) (stating that the
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court is not convinced that inclusion of an instruction defining the nature-of-conduct and
circumstances-surrounding-conduct is an error of constitutional dimension when the instruction also
includes the correct result-of-conduct definition). Further, the defendant’s reliance on State v. Deji
A. Ogundiya is not convincing, see No. M2002-03099-CCA-R3-CD, slip op. at 6-7 (Tenn. Crim.
App., Nashville, Feb. 19, 2004), because this court did not state that the trial court’s instructions
constituted reversible error. We instructed that upon retrial for other reasons, the trial court should
instruct the jury carefully regarding the mens rea for each element of the offense. Id. This court
noted that the trial court did not instruct the jury clearly as to the mens rea of each element of sexual
battery and did not explain to the jury that the recklessness mens rea only applied to the victim’s lack
of consent element. Id. Unlike Deji A. Ogundiya, the trial court’s instruction in the present case did
not constitute reversible error.
X. RECUSAL OF TRIAL JUDGE
The defendant claims that the denial of his motion to disqualify the trial judge was
error. Prior to the scheduled hearing on the defendant’s motion for new trial, substitute counsel, who
appeared in the case after the conclusion of the trial, filed a written motion seeking the trial judge’s
recusal. Apparently, this motion was reviewed by the court along with the motion for new trial and
other pending motions. The recusal issue did not receive any specific attention in the hearing
conducted by the court, and the court apparently disposed of the recusal issue, along with other
issues, by generally stating that such “other matters” were overruled.
The primary ground for disqualification cited by the defendant in his recusal motion
was the trial judge’s attempt to have the defendant’s trial counsel, who withdrew following the trial,
disciplined by the Board of Professional Responsibility. Based upon exhibits attached to the recusal
motion, the defendant’s trial attorney was interviewed by television reporters following the return
of the jury’s guilty verdicts in the present case. In the course of the interview and in response to
questions posed by the reporters, counsel stated that an appeal would ensue and that the grounds for
the appeal would include the trial court’s ruling on the admission into evidence of the videotape of
the defendant in the gymnasium’s restroom. Counsel opined that the ruling was “wrong” and would
be the basis of reversal. The trial judge essentially complained to the Board of Professional
Responsibility that counsel’s statements had impugned the judge’s integrity, but after counsel
responded to the complaint, the Board dismissed the complaint. In his motion to disqualify the trial
judge, the defendant claimed that the judge’s actions in seeking disciplinary sanctions against his
trial attorney, along with his restrictive rulings on pretrial disclosure and his interrogation of
witnesses during trial, bespoke a prejudice against the defendant that warranted disqualification.
The issue of a trial judge’s recusal based upon alleged bias or prejudice rests within
the discretion of the trial court. Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991).
A judge should grant a motion for recusal whenever his or her “impartiality might reasonably be
questioned.” Code of Judicial Conduct, Canon 3(E)(1); see State v. McCary, 119 S.W.3d 226, 260
(Tenn. Crim. App. 2003). This court will not interfere with the trial court’s discretion unless clear
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abuse appears on the face of the record. Owens v. State, 13 S.W.3d 742, 757 (Tenn. Crim. App.
1999); Caruthers, 814 S.W.2d at 67.
Tennessee Supreme Court Rule 10, Canon 3(E)(1) provides that “[a] judge shall
disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be
questioned, including but not limited to instances where [] the judge has a personal bias or prejudice
concerning a party.” Tenn. Sup. Ct. R. 10, Canon 3(E)(1)(a), (b). In response to a disqualification
motion, the judge should not only examine “subjective bias” but should also inquire whether the
judge’s impartiality might be reasonably questioned under an “objective standard.” State v. Connors,
995 S.W.2d 146, 149 (Tenn. Crim. App. 1998). The latter standard “‘takes into account that
disqualification is required if there is an appearance of partiality to the reasonable observer, and it
precludes a judge from avoiding recusal merely by avowing his or her impartiality.’” State v.
Conway, 77 S.W.3d 213, 225 (Tenn. Crim. App. 2001) (quoting Connors, 886 S.W.2d at 149).
In the present case, we are struck by a combination of events: (1) the judge’s punitive
reaction toward trial counsel’s relatively benign, though extrajudicial, comments about trial error;
(2) the judge’s failure to place on the record his findings and reasons for denying the motion to
recuse; (3) the judge’s restrictions on the defendant’s right of discovery; and (4) the judge’s
credibility-bolstering examination of the victim-witness, though itself unworthy of a reversal.
To elaborate, first, the judge’s questioning of the victim during her trial testimony
could appear to be for the purpose of eliciting her disavowals that her testimony was influenced or
coached. Second, the reaction to counsel’s post-trial comments evinces, at worst, an antipathy
toward the defense or the defense attorney and, at best, a pharisaical attitude toward dissent that
might tend to chill all but the most intrepid advocacy. Last, against this backdrop, we would have
hoped that the trial judge would have made findings in support of his denial of the motion to
disqualify. Such findings may well have addressed many of our concerns emerging from the
circumstances described above. The court, however, entered no findings, a lapse that hardly serves
to dispel a claim that the judge’s partiality is reasonably in doubt.
Given the totality of circumstances, we hold that the trial judge is disqualified from
conducting further proceedings in this case.
XI. SENTENCING
In the defendant’s final issue, he argues that the trial judge unlawfully applied the
enhancement factors, that consecutive sentencing was not appropriate, and that the length and
manner of service were illegal because the court failed to require the State to produce the “raw data”
upon which the State’s expert relied.
At the sentencing hearing, the State first entered into evidence the Presentence
Investigation Report and an Addendum to this report as exhibits one and two. The Presentence
Report showed that the defendant had no prior criminal record, and it also contained a psychosexual
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evaluation and a letter from a former student, detailing her need for counseling after being coached
by the defendant. The Addendum contained information submitted by the State and the defendant.
The State’s information included: B.R.’s statement, B.R.’s parents’ statement, a letter from parent’s
of a former student, polygraph test results, and a letter from B.R.’s counselor. The defendant’s
information included: a list of mitigating factors, the defendant’s written statement, USA Gymnastics
documents regarding a 1996 investigation of the defendant, polygraph test results, and numerous
favorable letters from the defendant’s family and friends.
The State then called Dr. Donna Moore as a witness. She testified, over objection,
that she held a doctorate degree in psychology, and she worked at Centerstone Community Mental
Health Center. She has practiced the treatment of sex offenders since 1993, and she evaluated the
defendant. Doctor Moore testified that after performing several tests on the defendant, she
concluded that the defendant was a high risk for re-offending and that “he was not [amenable] to
treatment.” She further explained that the overall data indicated that the defendant was dishonest
and lacked empathy.
Detective Breedlove testified that the police found pornographic material, which
showed females who “appear[ed] to be either 17, 18 years of age or a little younger.” He testified
that the females “were dressed in a younger fashion with pigtails” and were engaging in sexual
intercourse or “various . . . sexual actions.”
Detective Breedlove also testified that the police seized various videotapes from the
defendant’s apartment. On these videotapes, the defendant had focused on B.R.’s vaginal area
approximately 248 times, even at times when she was not performing a gymnastics skill. Detective
Breedlove also testified that the defendant focused on the vaginal area of two other minor students.
When he questioned one student, the student said that the defendant had touched the outer clothing
of her vaginal area on one occasion, but he apologized, and she forgave him.
B.R.’s father testified at the sentencing hearing that B.R. had difficulties in school
and nightmares that the defendant was chasing her to touch or kill her. He testified that she also has
been ridiculed for coming forward, and she does not understand why certain adults have not believed
her.
B.R.’s mother testified that the sexual abuse occurred for about one year. She
testified that, as a result, B.R. “had severe nightmares.” She would wake up crying because she
dreamed that the defendant would touch other people while she had to watch. B.R.’s mother testified
that B.R. is afraid to go out on her own, and she is seeing two counselors. She started seeing them
every week and then on an “as needed” basis. B.R.’s mother testified that, since the defendant’s
conviction, “things have been a little bit better for [B.R.]” She is not as quick to anger, and she is
improving in school.
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The defendant then called Dee Ann Melton as a witness. She testified that Detective
Breedlove interviewed her daughter and that no charges resulted from the interview. She stated that
she had never observed the defendant improperly touching a student.
On cross-examination, Ms. Melton testified that she wrote a letter on the defendant’s
behalf. Ms. Melton admitted that she had seen the videotapes of B.R.’s vaginal area and of the
defendant taping himself using the bathroom. The State asked her if she told someone that the
garbage bag was placed around the camera to “catch little boys who had been peeing on the floor.”
She replied, “[M]adam, I don’t know what I told her because I talked to – actually, I’m pretty tired
of talking about it all, and I don’t know what I said.” Ms. Melton also stated that she did not recall
telling someone that the defendant may have inappropriately touched B.R., but she did not think it
warranted a 96-year sentence.
The defendant called August Boto, Karen Schiefelbein, and Mim Young Kwon as
character witnesses. The defendant also called Dr. Jim Walker as his expert witness. Doctor Walker
testified that he was licensed to practice psychology in Tennessee and that he was employed at
Vanderbilt University School of Medicine. He testified that he disagreed with Dr. Moore’s
assessment that the defendant was a high risk to re-offend. After conducting his own tests, Dr.
Walker concluded that the defendant had a low to moderate risk for re-offending. He also stated that
he could not answer whether the defendant could be rehabilitated because the defendant refused to
discuss what he was convicted of because of his Fifth Amendment rights. Doctor Walker stated that,
in his opinion, the defendant was treatable for inappropriate sexual behavior and was a good
candidate for treatment provided that he acknowledge his need for treatment. Doctor Walker further
testified that he would diagnose the defendant as a pedofile, but not a predatory pedofile, unlike Dr.
Moore’s opinion.
The defendant made an allocution statement. Defense counsel informed the court that
the defendant would not be placed under oath during the statement. The defendant thanked his
friends and family for their support and stated that the victim’s family members were “people of
character and high moral[] fiber.” He “lament[ed] over the emotional trauma this must have caused
the entire . . . family.” He stated that he had compassion for them and expressed “deep sorrow” for
what they were going through and to anyone else “who [thought] that [he] hurt them.”
The court found the trial evidence “highly significant . . . much more significant than
what either of the doctors have said, or not said, in their testimony.” Therefore, the trial judge stated
that he did not consider the State’s expert’s report. The court also found that B.R.’s, Detective
Breedlove’s, and Lucy Fox’s testimonies were credible and that the defendant’s testimony was
deceptive.
In making the sentencing determinations, the trial judge stated that he considered the
testimony, Presentence Investigation Report, Addendum, and letters on the defendant’s behalf. The
court found a lack of potential for rehabilitation based on the defendant’s testimony and conduct.
Regarding this conduct, the trial judge stated, “[T]he criminal conduct was reprehensible in this
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court’s judgment[,] and it was conduct that was explicitly intertwined with a pattern of deception that
used the gymnastic sport to its most profane detriment.” Furthermore, the court found residual
mental damage to the victim and stated that, because of the defendant’s refusal to accept
responsibility, there is no potential for rehabilitation.
Regarding enhancement factors,27 the trial court found that the defendant abused his
position of public or private trust and that he also used a special skill that facilitated the commission
of the offense. See T.C.A. § 40-35-114(16) (2006). He applied this enhancement factor to each
aggravated sexual battery conviction and to the aggravated sexual exploitation of a minor conviction.
The trial judge also found that the defendant committed the aggravated sexual exploitation of a
minor offense to gratify his desire for pleasure or sexual excitement. See id. § 40-35-114(8).
The court rejected the mitigating factor that substantial grounds existed to excuse or
justify the defendant’s conduct, see T.C.A. § 40-35-113(3) (2003), and the court placed “negligible”
weight on the mitigating factor that the defendant did not cause substantial bodily injury, see id. §
40-35-113(1). Regarding the defendant’s lack of criminal record, see id. § 40-35-113(13), the court
stated that it may, but is not required to, consider that mitigating factor, and the trial judge further
stated that he will not consider this factor because the defendant was in a position of trust.
Thus, the trial court sentenced the defendant to a maximum incarcerative sentence
of 12 years for each of the seven counts of aggravated sexual battery and to 12 years in the
Department of Correction for the one count of aggravated sexual exploitation of a minor, stating that
confinement was necessary “to avoid depreciating the seriousness of the offense[s].” The court also
ordered that the sentences run consecutively according to State v. Lane, 3 S.W.3d 456 (Tenn. 1999),
and Tennessee Code Annotated section 40-35-115(b)(5), see T.C.A. § 40-35-115(b)(5) (2006).
When the length, range, or manner of service of a sentence is disputed, it is generally
the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2006). This presumption,
however, is conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appellant, and
in the event the record fails to demonstrate the required consideration by the trial court, review of
the sentence is purely de novo. Id. If appellate review reflects the trial court properly considered
all relevant factors and its findings of fact are adequately supported by the record, this court must
27
Tennessee Code Annotated section 40-35-114, as amended in 2002 by Public Act 849, § 2(c), effective July
4, 2002, added one enhancement factor and subsequently renumbered all of the original enhancement factors in the
statute. Thus, for the time period during which the defendant’s offenses were committed and during which he was
sentenced, the enhancement factor pertaining to abuse of public or private trust or used a special skill was subsection
(16), and the enhancement factor for committing the offense to gratify the defendant’s desire for pleasure or excitement
was subsection (8). See T.C.A. § 40-35-114(8), (16) (2003). W e note that the legislature has, again, recently amended
and renumbered the enhancement factors, see T.C.A. § 40-35-114 (2006), but these changes became effective for
criminal offenses committed on or after June 7, 2005, and do not apply in this case.
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affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In addition, “[e]very defendant shall be punished by the imposition of a sentence
justly deserved in relation to the seriousness of the offense, T.C.A. § 40-35-102(1) (2003), and “[t]he
sentence imposed should be no greater than that deserved for the offense,” id. § 40-35-103(2).
Furthermore, Tennessee Code Annotated section 40-35-501(i)(1) states in relevant
part, “There shall be no release eligibility for a person committing an offense, on or after July 1,
1995, that is enumerated in subdivision (2).” See T.C.A. § 40-35-501(i) (2003). Subdivision (2)
includes the offense of aggravated sexual battery. See id. “Such person,” the statutory subsection
continues, “shall serve one hundred percent (100%) of the sentence imposed by the court less
sentence credits earned and retained.” See id. It also states that “no sentence reduction credits . . .
shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).” See
id.
The defendant challenges on constitutional right-to-jury-trial grounds the trial court’s
lengthening each sentence from the presumptive, minimum sentence of eight years to the maximum
of 12 years.28 The Tennessee Supreme Court has upheld the Act against a Sixth Amendment
challenge, see State v. Gomez, 163 S.W.3d 632 (Tenn. 2005); however, because the United States
Supreme Court has recently filed an opinion that may freshly call into question the Tennessee law’s
constitutional soundness, see Cunningham v. California, No. 05-6551, 75 U.S.L.W. 4078 (Jan. 22,
2007),29 we take the time to regain perspective. As we shall explain, we opt – at this juncture – to
follow the precedent of the Tennessee Supreme Court.
In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the Supreme Court
held that provisions of the Washington sentencing law violated Blakely’s Sixth Amendment right
to jury trial. Washington’s Sentencing Reform Act established a top end sentence of ten years for
Blakely’s Class B felony but provided for a “standard range” of 49 to 53 months. Nevertheless, the
law provided that the trial judge, without a jury, “may impose a sentence above the standard range
if her she finds “substantial and compelling reasons justifying an exceptional sentence.” Blakely,
542 U.S. at 299, 124 S. Ct. at 2535 (emphasis added). The Washington law enumerated a
nonexhaustive list of aggravating facts upon which a judge could increase a sentence above the
standard range. Id. Three years later, Cunningham characterized the Washington sentencing law
28
To address the possibility that provisions of the Tennessee Criminal Sentencing Reform Act (the Act) violated
the United States Constitutional Sixth Amendment right to trial by jury, the Tennessee General Assembly amended
various provisions of the Act in 2005 by enacting Public Acts chapter 353. Because the 2005 amendments only apply
to offenses committed on or after June 7, 2005, the provisions of the Act for purposes of the present case are unaffected
by 2005 chapter 353.
29
This opinion does not yet appear in the preliminary print of the United States Reports, and at this time, it is
subject to formal revision. For that reason, our citations to this case will refer to the pages of the slip opinion, which has
been released.
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in Blakely as permitting “but . . . not requir[ing] a judge to exceed [the] standard range.”
Cunningham, slip. op. at 9.
In striking down Washington’s provision for exceptional sentencing, the Blakely
Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000): “‘Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
Blakely, 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-
63). The Supreme Court emphasized that the relevant “statutory maximum” for purposes of the
Sixth Amendment “is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at
2537 (emphasis in original). “In other words,” the Court said, “the relevant ‘statutory maximum’
is not the maximum sentence a judge may impose after finding additional facts, but the maximum
he may impose without any additional findings.” Id. at 303-04, 124 S. Ct. at 2537 (emphasis in
original). Because Blakely’s sentence was increased above the prescribed standard range based upon
the trial judge’s finding of “‘deliberate cruelty,’” a fact that was neither admitted by Blakely nor
found by a jury, id. at 313-14, 124 S. Ct. at 2543, the statutory scheme for exceptional sentencing
violated Blakely’s Sixth Amendment right to trial by jury, id., 124 S. Ct. at 2543.
In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a case decided less
than six months after Blakely, the Supreme Court held that the federal sentencing guidelines, as
written, violated the Sixth Amendment because, like the Washington sentencing scheme addressed
in Blakely, the federal “sentencing rules are mandatory and impose binding requirements on all
sentencing judges.” Id. at 233, 125 S. Ct. at 749-50. The Booker Court observed:
If the Guidelines as currently written could be read as merely advisory
provisions that recommended, rather than required, the selection of
particular sentences in response to differing sets of facts, their use
would not implicate the Sixth Amendment. We have never doubted
the authority of a judge to exercise broad discretion in imposing a
sentence within a statutory range. Indeed, everyone agrees that the
constitutional issues presented by these cases would have been
avoided entirely if Congress had omitted from the [Sentencing
Reform Act] the provisions that make the Guidelines binding on
district judges . . . . [W]hen a trial judge exercises his discretion to
select a specific sentence within a defined range, the defendant has no
right to a jury determination of the facts that the judge deems
relevant.
Id., 125 S. Ct. at 750.
Historically, we know that in the wake of Blakely and Booker, the Tennessee Court
of Criminal Appeals determined in a number of cases now designated “Not for Citation,” see Tenn.
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R. Sup. Ct. 4(F), that Blakely’s principles invalidated Tennessee’s provisions for the trial judge’s
enhancing a sentence above the “presumptive” sentence when he or she found factually that any
statutory enhancement factors, other than that of a prior record of criminal convictions, applied. See
Gomez, 163 S.W.3d at 654 (acknowledging that the intermediate court had held “in many decisions”
that the principles of Blakely invalidated the Tennessee sentence-enhancement provisions); see also
T.C.A. §§ 40-35-210(c) (establishing a “presumptive” sentence at the minimum sentence of the
range for Class B, C, D, and E felonies), - 210(d) (providing for increasing a sentence above the
presumptive sentence based on the finding of enhancement factors), & - 114 (enumerating
enhancement factors) (2003) (amended 2005 Pub. Acts ch. 353, effective as to offenses committed
after June 7, 2005). We also know that, later, the Tennessee Supreme Court held that the Gomez
defendants’ claim of unconstitutionality of Tennessee’s scheme for enhancing sentences would not
be recognized as plain error. Gomez, 162 S.W.3d at 661.
In Gomez, our supreme court rejected the intermediate appellate court’s view of the
matter. It stated, “Booker confirms that Tennessee’s sentencing structure differs markedly and in
constitutionally significant ways from the [federal sentencing] Guidelines and the New Jersey and
Washington statutes at issue in Apprendi and Blakely.” Id. at 658. The court said, “The [Tennessee
Criminal Sentencing] Reform Act affords judges discretion to select an appropriate sentence within
a predetermined statutory range[,]” id. at 659, and “the finding of an enhancement factor simply does
not mandate an increased sentence,” id. at 660; see T.C.A. 40-35-210(d), (e) (2003) (amended 2005).
As such, the court described the Tennessee sentencing enhancement scheme “as an ‘indeterminate,’
non-mandatory, advisory sentencing scheme which merely requires judges to consider enhancement
factors, along with other information, when exercising their discretion to select an appropriate
sentence within the statutory range,” a scheme that “does not mandate an increased sentence upon
a judge’s finding of an enhancement factor.” Gomez, 163 S.W.3d at 660. Explaining further, the
Gomez court said:
[T]he relevant inquiry is whether the Reform Act mandates
imposition of a sentence increased above the presumptive sentence
when a judge finds an enhancement factor. Although the dissent [in
Gomez] is correct that the Reform Act requires trial judges to
determine whether enhancement factors exist [before an increase may
be imposed], the dissent fails to recognize that the finding of an
enhancement factor does not mandate an increased sentence. Booker
explains that the mandatory increase of a sentence is the crucial issue
which courts must consider in determining whether a particular
sentencing scheme violates the Sixth Amendment.
Id. at 661.
We take the time to review these cases because the United States Supreme Court
recently filed Cunningham, in which the Court took up the sentencing gauntlet thrown, this time, by
the California Supreme Court’s holding that California’s determinate sentencing law survived Sixth
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Amendment scrutiny intact under Apprendi-Blakely-Booker. The United States Supreme Court
determined, however, that California’s sentencing scheme violated Cunningham’s right to jury trial
as guaranteed by the Sixth and Fourteenth Amendments. The Cunningham Court outlined
California’s sentencing regime as follows:
. . . The statute defining the offense prescribes three precise terms of
imprisonment – a lower, middle, and upper term sentence. Penal
Code § 1170(b) (West Supp. 2006) controls the trial judge’s choice;
it provides that “the court shall order imposition of the middle term,
unless there are circumstances in aggravation or mitigation of the
crime.” . . .
. . . [T]he [State Judicial] Council’s Rules provide that “[t]he middle
term shall be selected unless imposition of the upper or lower term is
justified by circumstances in aggravation or mitigation.” . . . Facts
aggravating an offense, the Rules instruct, “shall be established by a
preponderance of the evidence,” and must be “stated orally [by the
trial court] on the record.
The Rules provide a nonexhaustive list of aggravating circumstances
. . . . In sum, California’s [determinate sentencing law] and the rules
governing its application, direct the sentencing court to start with the
middle term, and to move from that term only when the court itself
finds and places on the record facts – whether related to the offense
or the offender – beyond the elements of the charged offense.
Cunningham, slip op. at 4-6. The Cunningham Court condemned the regime because it authorized
the judge – not the jury – to find facts that permitted an upper term sentence of 16 years rather than
the required 12-year middle term sentence. Id., slip op. at 2.
In view of the Gomez court’s focus upon the premise that Tennessee Code Annotated
section 40-35-210 did not require the sentencing court to enhance a sentence above the presumptive
sentence, even if enhancement factors were applicable, the Cunningham Court’s post mortem
comments about Blakely are intriguing. In summarizing Blakely above, we highlighted that
opinion’s description of a portion of the Washington sentencing law, specifically that “[a] judge may
impose a sentence above the standard range if he finds ‘substantial and compelling reasons justifying
an exceptional sentence.’” Blakely, 542 U.S. at 299, 124 S. Ct. at 2535 (emphasis added). The
Cunningham Court amplified the tone of that statement by stating that the infirm Washington law
“permitted but did not require a judge to exceed [the] standard range.” Cunningham, slip op. at 9.
In a similar vein, the Cunningham Court stated that the Washington law did not merely afford the
sentencing court a permissible ambit of discretion; a Washington judge “could not have sentenced
Blakely above the standard range without finding the additional fact of deliberate cruelty.” Id., slip
op. at 10. Perhaps galvanizing this theme, the Cunningham Court stated that Blakely held it
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“irrelevant that the [Washington] Reform Act ultimately left the decision whether or not to depart
[from the standard range] to the judge’s discretion.” Id., slip op. at 11. The Court also quoted a
Blakely footnote as follows: “‘Whether the judicially determined facts require a sentence
enhancement or merely allow it, . . . the verdict alone does not authorize the sentence.’” Id. (quoting
Blakely, 542 U.S. at 305 n.8, 124 S. Ct. at 2538 n.8) (emphasis in Blakely).
Thus, Cunningham strikes at a basic premise of Gomez. See Gomez, 163 S.W.3d at
661 (“Booker explains that the mandatory increase of a sentence is the crucial issue which courts
must consider in determining whether a particular sentencing scheme violates the Sixth
Amendment.”). Whether Cunningham applied the coup de grace to Gomez is yet somewhat
perplexing, for at least two reasons.
First, Cunningham, in discussing Booker, commented that the Washington sentencing
law and the pre-Booker federal sentencing guidelines shared the infirmity of being “mandatory and
impos[ing] binding requirements on all sentencing judges.” Cunningham, slip op. at 12. As we
noted above, Cunningham itself recognized – and even emphasized – that the Washington statute
allowed but did not require upward adjustment of a sentence, and yet, despite that the pre-Booker
federal sentencing guidelines required upward adjustment of a sentence when factual bases were
present, the High Court thought the two schemes had a common infirmity of being mandatory and
binding. We suspect, then, that the use of the terms “mandatory” and “binding requirements” in
Booker and Cunningham signify only that a sentencing court is not authorized to increase the
sentence above the standard or baseline unless specified factual bases are present, not that the
increase itself is mandated when the bases are present. In this vein, we note that the Cunningham
Court likened the California statute to the other two analyzed sentencing regimes in that California
Penal Code section 1170(b) provided that the sentencing court “‘shall order imposition of the middle
term’ absent ‘circumstances in aggravation or mitigation of the crime.’” Id., slip op. at 12 n.10 (first
emphasis in Cunningham; second emphasis added). The Court focused upon California’s mandate
to impose the middle term of sentencing – and not upon the grounds for imposing the upper term,
and yet it likened section 1170(b) to the problematic features of the Washington and federal
sentencing regimes, which it had termed mandatory in Booker. Still, the High Court’s continued
parlance of “mandatory and binding requirements” as the root of evil for Sixth Amendment purposes
gives us pause.
Second, the concept of employing a statutory sentencing range for discretionary
sentencing, mentioned in Booker and Gomez as a marker for constitutionally permissible judge-
sentencing, possibly received some affirmation in Cunningham. See Booker, 543 U.S. at 233, 125
S. Ct. at 750 (“For when a trial judge exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury determination of the facts that the judge deems
relevant.”). The Cunningham Court said that the California sentencing scheme did not resemble the
“advisory system the Booker Court had in view” because California’s judges were “not free to
exercise their ‘discretion to select a specific sentence within a defined range.’” Cunningham, slip
op. at 19. The Court referred to California’s “sentencing triads, three fixed sentences with no ranges
between them.” Id. “Cunningham’s sentencing judge,” the Court explained, “had no discretion to
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select a sentence within a range of 6 to 16 years. His instruction was to select 12 years, nothing more
or nothing less, unless he found facts allowing the imposition of a sentence of 6 or 16 years.” Id.
Initially, at least, this language juxtaposes the errant California law to the pre-2005 Tennessee
sentencing law because, as the Gomez court said, the Tennessee law utilizes a “range” concept; once
a trial judge discerns a basis for departing from the presumptive sentence, he or she has a choice of
sentence length in most offense-class/range brackets. To be sure, the sentencing judge in the present
case operated within a range of eight to 12 years. Arguably, Cunningham’s affirmation of an
indeterminate range concept gives a nod to the pre-2005 Tennessee sentencing law.
Again, however, we suspect that the United States Supreme Court had something else
in mind. Although Tennessee’s pre-2005 sentencing regime utilized an indeterminate range concept,
a sentencing adjudication could not even enter the range of indeterminate options unless and until
the judge made factual findings that ousted the sentence from an inertial determinate point – the
presumptive sentence. In other words, it may well be the case that Tennessee’s erstwhile
presumptive sentence scheme was just as determinate as Washington’s scheme – because the
sentence was fixed by statute in the absence of fact-finding not embraced in the jury’s verdict – and
just as mandatory, as well – because the judge was not authorized to depart from the presumptive
sentence unless he or she found certain facts not embraced in the jury’s verdict.
That said, Cunningham’s locutions of “mandatory” and “range” will be viewed by
some, perhaps even the appellee in the present case, as supporting Gomez’s view of Booker and
Blakely.30 Thus, arguably some ambiguity is yet afoot. Moreover, the California sentencing law is
not a mirror image of Tennessee’s. We are mindful that the United States Supreme Court has not
adjudicated Tennessee’ pre-2005 sentencing law; Tennessee’s supreme court has. For these reasons,
we feel constrained at this juncture to follow the precedent established by the Tennessee Supreme
Court in Gomez. We fully recognize that the United States Supreme Court is the authoritative and
final arbiter of the interpretation and scope of federal constitutional provisions. See Cunningham,
slip op. at 21 n.16. We also know that, apart from questions of application of the federal constitution
or federal statutes, the Tennessee Supreme Court is the final arbiter of state-law issues. See, e.g.,
State v. Hayes, 188 S.W.3d 505, 513 (Tenn. 2006) (commenting that the Tennessee Supreme Court
is “the final arbiter of the Tennessee Constitution”); Anthony Tigg v. Pirelli Tire Corp., No.
M2003-02118-COA-R3-CV, slip op. at 5 (Tenn. Ct. App., Nashville, Dec. 22, 2005) (acknowledging
Tennessee Supreme Court as the final arbiter of Tennessee judicial policy). Thus, Gomez
authoritatively determined the state-law meaning of the then-existing Tennessee sentencing law,
even if the United States Supreme Court or the Tennessee Supreme Court yet decides that the
Tennessee law, as so interpreted, does not satisfy the rigors of the federal Sixth Amendment.31
30
W e are aware that, in Gomez, the State of Tennessee had conceded that “the defendants’ sentences were
imposed in violation of the Sixth Amendment right to a jury trial.” Gomez, 163 S.W .3d at 654. The Gomez court
rejected the concession. Id. at 661-62.
31
A petition for a writ of certiorari in Gomez is pending in the U nited States Supreme Court. See State v.
Gomez, 74 U.S.L.W . 3131 (Aug. 15, 2005) (No. 05-296).
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Thus we decline to modify the length of any of the present defendant’s sentences.
Next, the defendant contends that the trial judge should not have consecutively
aligned the sentences because the defendant’s conduct did not reasonably relate to the severity of the
offenses involved.
Tennessee Code Annotated section 40-35-115(b) enumerates factual bases which
authorize consecutive sentencing. In the present case, the consecutive sentencing factor upon which
the trial court relied is as follows:
The defendant is 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
defendant and victim or victims, the time span of the defendant’s
undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim
or victims[.]
T.C.A. § 40-35-115(b)(5) (2003). In the absence of this or some other authorizing factor, state law
requires the imposition of concurrent sentencing. Id. § 40-35-115(d).
In the present case, factual bases exist which authorize some measure of consecutive
sentencing. See State v. Cleander Cleon Hartman, No. M2000-02441-CCA-R3-CD, slip op. at 18
(Tenn. Crim. App., Nashville, Jan. 17, 2002) (concluding that when consecutive sentencing is
permissible under section 40-35-115(b)(5), the sentence must also “reasonably relate[] to the
severity of the offenses involved”) (quoting State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987));
cf. State v. James M. Powers, No. E2001-02363-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App.,
Knoxville, Oct. 23, 2002) (holding that section 40-35-115(b)(5) does not apply because “[t]here was
no significant time span of undetected sexual activity and the nature of the criminal conduct was
not aggravated beyond what is inherent in sex crimes committed against children”); State v. Robert
H. McCurdy, No. 03C01-9706-CR-00232, slip op. at 10-11 (Tenn. Crim. App., Knoxville, Mar.
23, 1998) (holding because “[t]here was no significant time span of undetected sexual activity, the
nature of the criminal conduct was nonaggravated, and the extent of residual damage to the victim
caused by the conduct was not demonstrated by evidence presented at trial,” consecutive sentencing
was not appropriate). However, even though the conduct of the defendant in the instant case was
reprehensible, and although we neither discount the seriousness of crimes of this nature nor the
trauma suffered by the victim in this case, we believe the present circumstances militate against
unfettered consecutive sentencing. See Cleander Cleon Hartman, slip op. at 18.
As we decided in State v. Cleander Cleon Hartman, our inquiry must include
whether the effective sentence is reasonably related to the severity of the offenses. Cleander Cleon
Hartman, slip op. at 18 (citing State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987)); see T.C.A. §
§ 40-35-102(1), -103(2) (2003). Again, we have not disregarded the trauma suffered by B.R., but
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given all the circumstances presented in this case, a combination of concurrent and consecutive
sentences is appropriate in relation to the severity of the offenses and are the least severe measures
necessary to deter the defendant’s future criminal conduct, to protect society, and to deter others
who are similarly situated and may be likely to commit similar offenses. See T.C.A. §§ 40-35-
102(1), -103(2) (2003); Taylor, 739 S.W.2d at 230.
Thus, the defendant’s 12-year sentences for the aggravated sexual battery convictions
in counts one, four, five, six, and seven are to be served concurrently with each other and
concurrently with the 12-year sentence for the aggravated sexual battery conviction in count two.32
The 12-year sentence in count three and the 12-year sentence for the especially aggravated sexual
exploitation of a minor conviction in count eight shall be served consecutively to each other and
to the sentence in count two. Thus, the defendant’s effective sentence will be 36 years.33
Last, the defendant complains that the length and service manner were illegal
because the court failed to require the State to produce the “raw data” upon which the State’s expert
relied. The defendant further argues that the raw data was necessary for the defense expert to
review and rebut the State’s proof. Moreover, the defendant complains that he was deprived of the
opportunity to cross-examine the State’s expert at the sentencing hearing regarding her report. He
also complains that the judge’s refusal to order the disclosure of the raw data violated Tennessee
Rules of Criminal Procedure 16(a)(1)(A) and 26.2,34 see Tenn. R. Crim. P. 16(a)(1)(A), 26.2, and
Tennessee Rule of Evidence 705, see Tenn. R. Evid. 705.
There is no constitutional right to general discovery in a criminal case. See
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989 (1987); Weatherford v. Bursey, 429 U.S. 545,
97 S. Ct. 837 (1977). The State is not obliged to make an investigation or to gather evidence for
the defendant. See State v. Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The
discovery rules do not require disclosure of information not known by the State. Tenn. R. Crim.
P. 16(a). Rule 16 permits the defendant to discover any statements made by him, his prior record,
documents and tangible objects, and reports of tests and examinations, but only to the extent that
the information is in the “possession, custody, or control of the state.” Id.; see also State v. Martin,
634 S.W.2d 639 (Tenn. Crim. App. 1982) (Rule 16 does not provide for the discovery of
32
These count numbers refer to the State’s Bill of Particulars and the State’s Election as utilized earlier in this
opinion.
33
As explained, our revision of the effective sentence is based upon a statutory mandate to fashion a
proportionate sentence. Should a court, upon further review, determine that the lengths of the defendant’s sentences
violate the Sixth Amendment, the configuration of consecutive sentencing should be adjusted appropriately.
34
The defendant initially requested the raw data prior to the sentencing hearing under Rule 16. At the
sentencing hearing he first requested the data, according to the defendant’s brief, via subpoena, see Tenn. R. Crim. P.
17, and then he again requested the data be disclosed after the State’s expert’s testimony, see Tenn. R. Crim. P. 26.2.
On appeal, the defendant does not argue that he was entitled to the data under Rule 16 subsection (a)(1)(B), defendant’s
written or recorded statements, nor under subsection (a)(1)(G), reports of examinations and tests. See Tenn. R. Crim.
P. 16 (a)(1)(B), (G).
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prosecution witnesses). Subsection 16(a)(1)(A) requires the State, upon the defendant’s request,
to disclose “the substance of any . . . oral statements made before or after arrest in response to
interrogation by any person the defendant knew was a law-enforcement officer if the state intends
to offer the statement in evidence at the trial.” See Tenn. R. Crim. P. 16(a)(1)(A). In addition, the
rule provides that if a party fails to comply with this rule, the court may order such party to permit
the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence
not disclosed, or it may enter such other order as it deems just under the circumstances. Tenn. R.
Crim. P. 16(d)(2).
Tennessee Rule of Criminal Procedure 26.2 requires the party who called a witness
other than the defendant, upon motion of the opposing party, to produce any pretrial statements of
the witness to the party against whom the witness was called prior to commencement of cross-
examination. Tenn. R. Crim. P. 26.2.
Tennessee Rule of Evidence 705 states that an expert “may testify in terms of
opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless
the court requires otherwise. The expert may in any event be required to disclose the underlying
facts or data on cross-examination.”
Rule 16 does not apply to mandate disclosure of the defendant’s oral statements to
Dr. Moore because the State’s expert, Dr. Moore, is not a “person the defendant knew [to be] a law-
enforcement officer.” See Tenn. R. Crim. P. 16(a)(1)(A). In addition, Rule 26.2 does not apply in
this case because the statement the defendant sought was not a “statement of the witness,” Dr.
Moore, but the defendant’s own statement. See Tenn. R. Crim. P. 26.2.
In State v. Henry Eugene Hodges, No. 01-C-01-9212-CR-00382 (Tenn. Crim. App.,
Nashville, May 18, 1995), the State sought the clinical notes of the defendant’s expert. Id. The
court noted that “the trial court has the discretion to require that the underlying facts and data used
by the expert to formulate the opinions be provided to the other party.” Id. slip op. at 25 (citing
Tenn. R. Evid. 705). The court further stated that,
[a]s a general rule, a trial court will require disclosure of the
underlying data of the expert’s opinion when the court ‘believes that
the party opponent will be unable to cross-examine effectively and
the reason for such inability is other than the prejudicial nature of
such facts or data . . . .
Id. (quoting Moore’s Federal Practice § 705.10 at VII-73). The court then held that the trial court
did not abuse its discretion in requiring the defendant to produce his expert’s clinical notes because
it would have been “extremely difficult, if not impossible, for the assistant district attorney general
to cross-examine [the defense expert] without access to the notes.” Id.
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Initially, we note that the interests of justice are better served in these situations
when the court at least reviews the requested materials in camera. Then, after exercising its
discretion in deciding the issue, the court could place the materials under seal, if necessary, for
purposes of facilitating appellate review.
In the present case, the raw data were not placed under seal for us to review, despite
the defendant’s request at the sentencing hearing, and thus, we cannot decide whether the trial court
abused its discretion. Regardless whether the court abused its discretion at present, we hold that
any such error is harmless. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). First, the proof
showed that the defense expert was very familiar with these tests and even performed some of the
same tests on the defendant, upon which he based his opinion. Furthermore, Dr. Moore testified
to the testing procedures she performed and to the form of the raw results on certain tests. The
defendant had ample information to adequately cross-examine Dr. Moore regarding her opinion’s
underlying facts and data without being provided with the actual raw data. Second, as the State
correctly notes in its brief, the trial court did not rely on the State’s expert’s report in reaching the
sentencing determination.
In sum, the defendant was not entitled to the raw data under Tennessee Rules of
Criminal Procedure 16 and 26.2 nor Tennessee Rule of Evidence 705. Moreover, any error in not
disclosing the raw data was harmless. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).
XII. CONCLUSION
The defendant’s effective sentence shall be modified to 36 years, but the defendant’s
convictions and sentences are otherwise affirmed. The State is barred from proceeding further on
the three counts of child rape, and those charges are dismissed. The judge who presided at trial is
disqualified from conducting further proceedings in this cause.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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