State of Tennessee v. Henry Wayne Russell ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 14, 2013 Session
STATE OF TENNESSEE v. HENRY WAYNE RUSSELL
Direct Appeal from the Criminal Court of Davidson County
No. 2007-C-2066A Monte Watkins, Judge
No. M2013-00166-CCA-R3-CD - Filed April 29, 2014
A Davidson County Grand Jury returned an indictment against Defendant, Henry Wayne
Russell, charging him in Counts One, Three, and Five with rape; and in Counts Two, Four,
and Six with statutory rape by an authority figure. After a jury trial, Defendant was found
guilty as charged in the indictment. The trial court merged the convictions in Count Two
with Count One; Count Four with Count Three; and Count Six with Count Five. The trial
court imposed a sentence of fifteen years for each count of rape as a Range II offender for
a total effective sentence of thirty years. On appeal, Defendant argues that: (1) the evidence
was insufficient to support his convictions for statutory rape by an authority figure; (2) the
trial court erred by denying his motion under Tenn. Rule Evid. 412 to allow evidence of
C.L.’s sexual behavior; (3) the trial court erred by advising Defendant that the State would
be permitted to cross-examine him concerning his prior felony drug convictions; (4) the trial
court erred by allowing a forensic social worker to testify concerning the victim’s medical
history; (5) the trial court erred in refusing to instruct the jury on the lesser-included offense
of attempted rape; and (6) the trial court erred in imposing consecutive sentencing. After a
thorough review of the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.
Manuel Benjamin Russ, Nashville, Tennessee, for the appellant, Henry Wayne Russell.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Holmgren,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Background
In accordance with the policy of this Court, we will refer to the minor victim by the
victim’s initials. C.L. testified that she was born in October 1992, and she began living with
her foster mother when she was nine years old. They lived at two different residences in
Nashville. At some point, C.L.’s foster mother began dating Defendant, and he would
sometimes spend the night at the foster mother’s residence. C.L. was twelve years old when
she first met Defendant. C.L. testified that she considered Defendant an “authority figure”
over her because when her foster mother was not present “or just if we was all out
somewhere and [Defendant] told me to do something, I was expected to do it.”
From the evening of February 22, 2007, until the morning of February 23, 2007,
C.L.’s foster mother left Defendant in charge of her two sons and C.L., who was fourteen at
the time, while the foster mother went to work. C.L. testified:
[The foster mother] had left the house and I had - - me and her two sons were
sharing a room, and I was asleep. And then [Defendant] came into my room
and he woke me up, and he led me into [the foster mother’s] bedroom.
And he told me to take off my clothes. And I stood there for a minute. And
then he told me to take off my clothes again. And I took off my clothes. And
then he sat on the bed and unbuttoned his pants and unzipped his pants.
Then he told me to perform oral sex on him. I said no. And he told me again,
and so I did it. And after that, he told me to lay on top of him, and he
performed oral sex on me while I performed oral sex on him.
C.L. testified that Defendant’s tongue and fingers touched her vagina. She said that this
continued for three to five minutes until Defendant’s cell phone rang. When Defendant
answered the phone, C.L. gathered her clothes and left the room.
C.L. testified that on the morning of February 23, 2007, her foster mother arrived
home from work and questioned her about whether anyone had touched her in an
inappropriate manner. C.L. told her foster mother that Defendant had made her perform oral
sex on him. C.L.’s foster mother then asked her the color of Defendant’s boxer shorts. After
C.L.’s foster mother confronted Defendant, she asked C.L. to come into the room and repeat
to Defendant what she said had happened. Defendant claimed that C.L. was lying and
“didn’t know what [she] was talking about.” C.L. testified that approximately five minutes
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later, her foster mother took her to Our Kids Clinic for an examination. She had not
showered or bathed from the time of the sexual activity until the examination. C.L. testified
that the individuals at the clinic questioned her about what happened. C.L. said that she was
sent to another foster home after she left the clinic. She was later interviewed on two
occasions by a man and a woman. C.L. initially told them that the sexual activity with
Defendant occurred one time. She eventually told them about other incidents.
C.L. testified that sexual activity occurred with Defendant on three other occasions
prior to the night of February 22-23, 2007. She said that the first instance occurred at her
foster mother’s home on Murfreesboro Road. C.L. testified:
[Defendant] came into my room. The boys were outside playing, and I was in
a room watching TV. And [Defendant] told me to come here. And he pulled
out his private part and he told me to get on my knees and perform oral sex on
him.
C.L. indicated that she did not want to perform oral sex on Defendant; however, he told her
that she would be taken away from her foster mother if she did not perform the act. C.L. then
performed oral sex on Defendant while he stood in the doorway with his hand on the back
of her head pushing it down. She said that she performed oral sex on Defendant until he
ejaculated.
C.L. testified that the second time sexual activity occurred with Defendant was when
Defendant picked her up after school. He was supposed to take her home but they drove to
the Taco Bell near Hickory Hollow Mall to get some food. C.L. testified that after receiving
the food, Defendant pulled around to the parking lot of the Taco Bell and told her to give him
oral sex. C.L. refused but Defendant again told her to perform oral sex on him, and C.L.
complied. C.L. testified that she performed oral sex on Defendant for approximately three
minutes. He was in the driver’s seat of the truck, and C.L. was in the passenger’s seat. C.L.
testified that Defendant’s pants were unbuttoned and unzipped, and he had one hand on the
back of C.L.’s head pushing it down while she was performing oral sex on him.
C.L. later told the daughter of her foster mother’s friend that she did not like
Defendant. When the girl asked why, C.L. responded: “Because he makes me give him
head.” The girl told C.L. that they should tell someone what happened. However C.L.
testified that she told the girl that she would get in trouble and be taken away from her foster
mother. The girl agreed not to say anything until C.L. was ready to reveal the information.
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C.L. testified that the third incident of sexual contact with Defendant occurred at the
home Defendant shared with his sister. C.L. had spent the night at the residence with
Defendant’s niece. C.L. testified that as she walked out of the shower and into the room to
get dressed, Defendant opened the door and asked what she was doing. She told Defendant
that she was getting dressed, and he then told her to give him oral sex. C.L. testified that she
said, “I don’t like doing this[,]” and Defendant said, “It won’t take that long.” She then
performed oral sex on Defendant, and he ejaculated into the towel that she had been using
and left the room. C.L. again testified that while she was performing oral sex on Defendant,
he had his hand on the back of her head pushing it down. She said that at the time, everyone
else in the residence was downstairs.
C.L. testified that she never engaged in any sexual activities with Defendant while he
was sleeping, and she never approached him in a sexual manner.
C.L.’s foster mother testified that C.L. began living with her when C.L. was ten years
old, and she remained C.L.’s foster mother for approximately four years. Prior to the time
of the offenses, she had planned to adopt C.L. C.L.’s foster mother testified that she met
Defendant in 2002, and they began dating shortly thereafter. Their relationship lasted for
four or five years. C.L.’s foster mother testified that C.L. met Defendant approximately a
year and a half after the foster mother began dating Defendant. C.L. and Defendant seemed
to have a good and appropriate relationship. C.L.’s foster mother did not notice any conflicts
between the two. She said that Defendant spent at least one night a week at her residence.
C.L.’s foster mother testified that on the night of February 22, 2007, until the morning
of February 23, 2007, she was working for a home health company caring for an elderly
patient. She also worked full time for CarMax. C.L.’s foster mother testified that when she
worked at night for the home health company, her mother usually cared for C.L. and the
foster mother’s two other children. When her mother could not care for the children,
Defendant would stay with them at night. The foster mother did not consider Defendant to
be C.L.’s caretaker or supervisor when the foster mother was around.
C.L.’s foster mother testified that Defendant picked C.L. up from a hair appointment
on one occasion in Hermitage. She said that it took a while for Defendant and C.L. to return
home, so she called Defendant and asked where they were. Defendant indicated that C.L.
had gone to Taco Bell with him. C.L.’s foster mother testified that Defendant and C.L.
arrived home approximately fifteen to twenty minutes later with food from Taco Bell.
C.L.’s foster mother testified that on February 22, 2007, she left for the home health
job at approximately 10:30 p.m. Her two children were asleep, and C.L. was almost asleep.
C.L.’s foster mother testified that there were no adults present at the residence when she left
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and that Defendant was supposed to arrived later to stay the night with them. She thought
that he arrived at the house at approximately 3:00 a.m. on February 23, 2007, because she
spoke with him by cell phone. C.L.’s foster mother testified that she had been calling
Defendant “all night” because she wanted someone there with the children, but she had not
received any response.
C.L.’s foster mother testified that during the time that she was trying to reach
Defendant, she had a conversation with Keela Hatchett concerning C.L. During the
conversation with Ms. Hatchett, C.L.’s foster mother received some information that caused
her to question C.L. the following morning when the foster mother arrived home between
7:00 and 7:15 a.m. C.L.’s foster mother testified that she asked C.L. if “anything had been
going on that shouldn’t be with an adult.” C.L. replied, “No.” C.L.’s foster mother
continued to question her about the matter until C.L. said, “Yes.” C.L. then told her that
Defendant had “licked” her. C.L.’s foster mother assumed Defendant had licked C.L. in her
private area. She asked C.L. if she had urinated or washed since Defendant licked her, and
C.L. said, “No.” C.L.’s foster mother told her to put some clothes over her pajamas so that
she could be taken to a hospital.
While C.L. was getting dressed, C.L.’s foster mother walked down the hall to her
bedroom where Defendant was sleeping and told him what C.L. had disclosed to her.
Concerning Defendant’s response, the foster mother testified:
He was, like, “What?” He was confused. And he was, like “Okay.” He got
up and went to the restroom and he had his clothes on and he came out. And
then he asked [C.L.] why she said that or whatever. And then he said, “Don’t
you know that we can go to jail? We can all go to jail?” or something like that
or “I can go to jail,” or something like that.
C.L.’s foster mother testified that Defendant denied any sexual activity with C.L. and said
that she was lying. However, Defendant later told her that C.L. “come on to him” and that
“he had licked his fingers and began fondling [C.L.’s ] vagina because she was dry[.]”
C.L.’s foster mother called C.L.’s mentor with the Department of Children’s Services
(DCS), who told the foster mother to take C.L. to Our Kids Clinic. C.L.’s foster mother had
also asked Defendant to go to the clinic for his mouth to be swabbed to prove his innocence.
Defendant then drove to the clinic separately and arrived shortly after C.L. and her foster
mother. C.L.’s foster mother testified that on the drive to the clinic, C.L. told her that she
and Defendant had “69’d,” which to the foster mother implied that Defendant and C.L. were
performing oral sex on each other at the same time. C.L.’s foster mother noted that
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Defendant was fond of the “69” position. After they arrived at the clinic, C.L.’s foster
mother informed the staff that Defendant had licked C.L., who was then examined.
C.L.’s foster mother testified that C.L. immediately went to another foster home after
the examination. The decision was made by C.L.’s foster mother and the DCS worker.
C.L.’s foster mother testified that C.L. had spent the night at the home of Defendant’s sister
on two or more occasions. She noted that C.L. told her that Defendant had made statements
to her that if she told about the sexual abuse, she would lose her foster mother.
C.L.’s foster mother testified that she was later contacted by Detective David Zoccola
with the Metropolitan Nashville Police Department. She told him that C.L. indicated that
Defendant had asked C.L. to perform oral sex on him. C.L.’s foster mother testified that she
continued her relationship with Defendant for approximately one year after the allegations.
She identified phone records from Defendant’s cell phone number which reflected calls
placed between her and Defendant from February 22, 2007, until the early morning hours of
February 23, 2007. One of the calls was answered at 2:59 a.m. on February 23, 2007. Prior
to that call, all of the calls to Defendant went unanswered or to his voice mail. When C.L.’s
foster mother spoke to Defendant at 2:59 a.m., he sounded inebriated. She asked Defendant
what time he arrived at her residence, and Defendant indicated that he had just arrived. He
also said that the children were asleep.
C.L.’s foster mother testified that she had not witnessed any conflict between C.L. and
Defendant, and C.L. had never seemed jealous of her relationship with Defendant. C.L.’s
foster mother said that she never indicated to C.L. that she would not adopt C.L. if the foster
mother continued her relationship with Defendant.
On cross-examination, C.L.’s foster mother testified that the phone records also
documented four telephone calls between her and Defendant between the hours of 2:00 a.m.
and 3:00 a.m. in addition to the call at 2:59 a.m. She also agreed that the call at 2:59 a.m.
was from Defendant. C.L.’s foster mother testified that Defendant eventually told her that
there was sexual contact between him and C.L. and that C.L. initiated the contact. She
admitted that she did not consider C.L. to be a truthful person, and DCS, police, and the
district attorney’s office were aware of her opinion. C.L.’s foster mother did not recall
Defendant ever being asked to pick up C.L. from school. She said that when C.L. stayed
overnight at Defendant’s sister’s house, Defendant was not living there at the time.
C.L.’s foster mother was not aware of any occasion that C.L. went to Hickory Hollow
Mall with Defendant, and she thought that they stopped at the Taco Bell on Murfreesboro
Road the day that he picked her up in Hermitage from a hair appointment. She testified that
while C.L. was living with her, C.L. had problems with “lying, fabricating stories.” She also
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had “a lot of emotional and attachment issues.” C.L.’s foster mother testified that C.L. was
not on medication at the time but had “lots of therapy and counseling.”
Lisa Dupree, a forensic social worker at the Our Kids Center in Nashville General
Hospital, testified that C.L. was examined at the center on February 23, 2007. C.L. reported
to Lorraine Gray, who was no longer employed at the center at the time of trial, that
Defendant had put his mouth on her “private parts.” C.L. indicated that Defendant had
“swiped his hands by her genital area, but did not touch in her genital area with his hands[.]”
Ms. Dupree testified that C.L. also said that approximately two months earlier, Defendant
asked her to put her mouth on his private parts. C.L. then disclosed the conduct to the
daughter of her foster mother’s friend. Ms. Dupree testified that C.L. indicated that her last
menstrual cycle ended two days prior to the exam. There was some blood noted during the
physical exam. Ms. Gray also documented that C.L. indicated that Defendant told C.L.,
“Don’t do this, you don’t want to leave don’t go telling nobody this, you’ll have to leave[.]”
Holly Gallion, a nurse practitioner with Our Kids Center, testified that she conducted
a medical examination of C.L. in February of 2007. According to the report, the sexual
contact between Defendant and C.L. occurred at approximately 3:00 a.m. She examined C.L.
within five to six hours of that contact. Since there were allegation of oral sex, Ms. Gallion
collected a rape kit from C.L. that consisted of swabs of C.L.’s genital area “to look for
specifically saliva oral secretions.” Ms. Gallion testified that she based her examination on
information that Ms. Gray obtained from C.L. She noted that C.L. had described having her
period a few days earlier, and Ms. Gallion noticed a little bit of bleeding. She determined
that a “scant” amount of blood was coming from C.L.’s cervix, but there was no internal
trauma. Ms. Gallion described C.L.’s physical examination as normal and that the exam
neither confirmed nor denied the possibility of any type of sexual contact. However, given
the history provided by C.L. Ms. Gallion did not expect to see any type of physical evidence
to confirm the sexual assault.
Special Agent Charles Hardy, a forensic scientist with the Tennessee Bureau of
Investigation (TBI) assigned to the serology and DNA unit, testified that he analyzed
evidence from the rape kit collected from C.L. The results of the swabs from C.L.’s vaginal
area “revealed the presence of alpha-amylase, which indicates the presence of saliva.” The
DNA profile that he obtained from the swabs matched that of C.L. Special Agent Hardy
noted that the swab could have contained C.L.’s skin cells, which could account for the
finding of C.L.’s DNA profile.
Detective David Zoccola of the Metropolitan Nashville Police Department was
assigned to investigate C.L.’s case through a DCS referral from Peggy Nunn. He testified
that an interview of C.L. was conducted on February 28, 2007, with Latoya Clark, a forensic
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interviewer from the Child Advocacy Center. Detective Zoccola was not present for the
interview but it was recorded. Concerning the interview Detective Zoccola testified:
I would have been furnished with a copy of that interview where the child
disclosed whatever information there was to disclose. And then I would have
been furnished with either verbally what happened at that first interview and
then eventually would have gotten a typed copy and a DVD or tape of that
interview. It would have involved me talking to [C.L.’s] foster mom and then
starting the process of investigating the allegations.
Detective Zoccola testified that he interviewed Defendant on March 9, 2007, at
Defendant’s place of business, a barbershop located at 8 th Avenue and Wedgewood in
Nashville. He said that Defendant agreed to talk with him, and the interview was recorded.
Defendant was aware of the allegations made by C.L., and Detective Zoccola explained to
him exactly what C.L. alleged had occurred on February 22-23, 2007. In the recording
Defendant explained his relationship with C.L. He said that they got along well, and he
never disciplined her. Defendant told Detective Zoccola that C.L. considered him to be an
authority figure, someone that she would talk to when in trouble, and someone that she would
confide in. Defendant also referred to himself as “a friend, a father figure, someone in an
authoritative position.”
In the interview, Defendant initially said that he did not touch C.L. After speaking
with Detective Zoccola for more than an hour, Defendant maintained that C.L.’s allegations
were false and that he was not guilty of “any type of sexual advancement towards her.”
When Detective Zoccola asked if C.L. had made any sexual advancement toward him,
Defendant without hesitation replied, “Yes.”
Defendant told Detective Zoccola that on the night of February 22-23, 2007, he
stopped at a Jack-in-the-Box before going to C.L.’s foster mother’s house. He ate the food,
and then went to bed. Defendant said that he had been drinking and became sick. He went
to the bathroom and vomited and then went into the kitchen to get some water to rinse his
mouth. Defendant claimed that he went back to bed and woke up sometime later to find C.L.
performing oral sex on him. At first, Defendant thought that he was dreaming, but when he
realized what was happening, he told C.L. to go back to her room. Defendant said that when
he asked C.L. what she was doing, “she just kind of shrugged her shoulders, like
nonchalant.” Defendant admitted that he was intoxicated that night.
Defendant said that the contact with C.L. occurred only one time. Later in the
interview he explained that when he woke up C.L. was not wearing any clothes. When
Detective Zoccola asked Defendant what he was wearing and whether C.L. had to remove
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or manipulate his underwear to access his penis Defendant said that he was wearing his boxer
shorts. When questioned again about what C.L. was wearing Defendant said that “[s]he had
on - she might have had on a shirt, but she - once again, I told you when I had touched her
person[], being her vaginal area, that’s when I really came to, and it was like, this is more
vivid than what it really is - is this is not a dream.” When Detective Zoccola repeatedly told
Defendant that he needed to tell everything that happened, Defendant responded:
Once I had laid down to go to sleep, like I said, she, uh - whenever time she
came in there, you know, I was, in the dream I was having oral sex - um, I was
receiving oral sex, and - I went to touch her, but noticed that it was dry, so,
being that it was dry, I did one of those common things that either a man or a
woman would do, and basically, I took and - basically, I did like that, [licked
his hand] and I touched her, and when I - that’s when I really just awoke, and
was like, hold up - what’s going on.
Defendant told Detective Zoccola that there was no further talking, kissing, fondling,
or removal of each other’s clothing, or any other sexual contact between him and C.L.
Detective Zoccola later spoke with Defendant about giving a DNA sample to compare to
anything found on the swabs taken from C.L.’s body. He informed Defendant that he did not
have to give the samples and that he was free to speak with an attorney before giving them.
Detective Zoccola also explained how the swabs from C.L.’s vaginal area might show the
presence of Defendant’s saliva. Defendant replied, “But then - I know- I know I didn’t stick
my fingers in her, but me touching my mouth and touching her vagina - that can transfer
saliva right there.”
Based on some discrepancies between C.L.’s interview and Defendant’s interview,
Detective Zoccola interviewed C.L. on March 14, 2007. Peggy Nunn from DCS was also
present when he interviewed C.L. at the Child Advocacy Center. Initially, Ms. Nunn
interviewed C.L. alone and emphasized the need for C.L. to be honest with her. When asked
if the sexual abuse had occurred on any previous occasions, C.L. said that the incident on
February 22-23, 2007, was “the first time.” Ms. Nunn then asked C.L. if anything had “ever
been going on that led up to this,” C.L. replied, “Well, not really, but one time before he
asked me to put my mouth on his private part, but I didn’t do it.”
Ms. Nunn then asked C.L. again about the incident that occurred on February 22-23,
2007. C.L. told Ms. Nunn that the incident occurred at approximately 3:00 a.m. She was in
the bedroom asleep with her foster brothers when Defendant walked in and told her to “come
here.” C.L. said that Defendant took her into the other bedroom and told her to lie down.
He then removed her pants and underwear and placed his mouth on her “private part.” C.L.
said that she tried to scoot back, but every time she did so, Defendant pulled her closer.
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Defendant instructed her to stop scooting back, and then his phone began ringing. C.L. said
that Defendant did not answer until the third time that the phone rang. C.L. then picked up
her clothes and left. C.L. told Ms. Nunn, “And he was like, where you going?” Then C.L.
told him that she was going back to her room, Defendant “was like, man, just forget you.
Go on.”
C.L. eventually told Ms. Nunn that Defendant asked her if she wanted to “sixty-nine?”
C.L. said that she asked Defendant what the term meant, and he told her that it was when a
girl and a boy perform oral sex on each other at the same time. Ms. Nunn told C.L. that
Detective Zoccola had interviewed Defendant and that his story was different than hers.
When asked again if any sexual behavior had previously occurred with Defendant, C.L.
responded, “Not that I can remember.” When asked what she thought Defendant would say,
C.L. said that Defendant would say that she came on to him in order to keep himself out of
trouble.
Detective Zoccola then joined Ms. Nunn and C.L. in the interview room and asked
if C.L. had any questions for him. C.L. asked if Defendant “admitted to doing it.” Detective
Zoccola then told C.L. that Defendant had told him about a different kind of activity, and he
told C.L. that he could not help her unless she was completely honest with him. He told C.L.
that Defendant claimed that she came into the bedroom and performed oral sex on him while
he was sleeping. However, C.L. insisted that Defendant was untruthful and that he had asked
her previously to perform oral sex on him but she refused. C.L. told Detective Zoccola that
the request occurred at Defendant’s house one day after he had picked her up from school
while she was waiting for her foster mother to pick her up. C.L. denied performing oral sex
on anyone. Detective Zoccola explained to C.L. that there were problems with her case
because things were so different, and he could not understand why Defendant admitted to the
different sexual activity when it would still get him into trouble. C.L. insisted that although
Defendant asked her to “sixty-nine” with him, she did not comply.
Detective Zoccola again told C.L. that he wanted her to be one-hundred percent
honest and to tell the truth. C.L. then asked to speak with Detective Zoccola alone. She told
him that on the night of February 22-23, 2007, Defendant walked into her bedroom where
she and her foster brothers were sleeping and woke her up. He took her into the other
bedroom, placed her on the bed, and over her objections, began to perform oral sex on her.
C.L. said that Defendant’s cell phone rang, and he stopped to look at it but did not answer.
He continued performing oral sex on C.L. and the phone rang again. Defendant looked at
the phone but did not answer and returned his attention to C.L. C.L. told Detective Zoccola
that when she resisted Defendant, he forced her to perform oral sex on him as she sat on the
edge of the bed. When the cell phone rang a third time, Defendant answered. C.L. then
picked up her clothes and returned to her room.
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Detective Zoccola told C.L. that if she performed oral sex on Defendant any other
times, then she should tell him. C.L. finally said, “It has happened.” When asked how many
times she had performed oral sex on Defendant, C.L. replied, “Three.” C.L. told Detective
Zoccola that the first incident occurred near the beginning of the school year in 2006 at her
foster mother’s house while her foster mother was at work. She had just gotten out of the
shower and Defendant was waiting in her room. C.L. said that Defendant told her to “come
here,” and he forced her to perform oral sex on him as he touched her chest. The second
incident occurred during the second semester of school in Defendant’s truck in the parking
lot at the Hickory Hollow Mall. C.L. said that Defendant asked her to “do it,” and she said
no, but when he told her again to “do it,” she complied. Defendant then drove her home. A
third incident occurred at Defendant’s house after Christmas break in January of 2007.
Tekiyah Cooper testified on behalf of Defendant. She previously dated Defendant,
and she remained in contact with his mother. She also spoke with Defendant during his
incarceration in Kentucky. Ms. Cooper testified that she was also familiar with C.L. through
Ms. Cooper’s employment with Corrections Corporation of America at the minimum security
jail in Nashville. Ms. Cooper testified that she met the victim when C.L. was an inmate in
the “female building” under Ms. Cooper’s supervision. She and C.L. would have in-depth
conversations while C.L. was incarcerated. Concerning C.L.’s character for truthfulness, Ms.
Cooper testified:
I believe that in the beginning she wasn’t as truthful with me, because she
didn’t know me. But once she got to know that I required the truth, she would
be more truthful with me. So, in the beginning if she lied to me she would
receive sanctions. But, after that once she got to know who I am and how I
like things, if I asked her a question I believe she will tell me the truth.
Patricia Terrell testified that she was employed as a guidance counselor at the
Margaret Allen Middle School in 2006-2007. C.L. was one of her former students. Ms.
Terrell testified that she interacted with C.L. on an “as-need basis.” She estimated that she
spoke with C.L. at least fifteen to twenty times. Concerning C.L.’s character for truthfulness,
Ms. Terrell testified:
Well, I had incidents - - it was some incidents where there was some truth not
told; whether it would be a parent conference, I believe, I had with the
guardian at the time, regarding, you know, work ethic, or different things like
that, or just general things - - a trip, I believe, she told me she took that she did
not take. So, it was things like that.
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II. Analysis
A. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence for his convictions of statutory
rape by an authority figure. When an accused challenges the sufficiency of the convicting
evidence, our standard of review is whether, after reviewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979). The trier of fact, not this Court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the evidence
as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932
(Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all inferences therefrom. Id. Because a verdict of guilt
removes the presumption of innocence and replaces it with a presumption of guilt, the
accused has the burden in this Court of illustrating why the evidence is insufficient to support
the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
Tenn. Code Ann. 39-13-532 provides:
(a) Statutory rape by an authority figure is the unlawful sexual penetration
of a victim by the defendant or the defendant by the victim when:
(1) the victim is at least thirteen (13) but less than eighteen
(18) years of age;
(2) the defendant is at least four (4) years older than the
victim; and
(3) the defendant was, at the time of the offense, in a
position of trust, or had supervisory or disciplinary power
over the victim by virtue of the defendant’s legal,
professional or occupational status and used the position
of trust or power to accomplish the sexual penetration; or
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(4) the defendant had, at he time of the offense, parental or
custodial authority over the victim and used the authority
to accomplish the sexual contact.
Regarding a position of trust, the Tennessee Supreme Court has stated:
The position of parent, step-parent, babysitter, teacher, coach are but a few
obvious examples. The determination of the existence of a position of trust
does not depend on the length or formality of the relationship, but upon the
nature of the relationship. Thus, the court should look to see whether the
offender formally or informally stood in a relationship to the victim that
promoted confidence, reliability, or faith.
State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996) (emphasis added).
In State v. Margaret L. Holt, No. E2010-02128-CCA-R3-CD, 2012 WL 826523, *16
(Tenn. Crim. App. Mar. 13, 2012), this court noted:
The statute regarding statutory rape by an authority figure does not require that
a defendant used his or her position of authority to force the sexual
penetration; instead, the statute states only that the defendant used his or her
power to accomplish the sexual penetration. See State v. Bryan Dale Farmer,
No. M2007-01553-CCA-R3-CD, 2008 WL 3843847, at *7 (Tenn. Crim. App.,
at Nashville, Aug. 18, 2008) (stating that the defendant used his position as a
teacher or coach to accomplish the offense of sexual battery by an authority
figure), perm. app. denied, (Tenn. March 2, 2009). Accordingly, if the
evidence shows that a defendant used his or her position to cultivate an
improper relationship with the victim and to bring about or bring to completion
sexual penetration with the victim, then this evidence is sufficient to support
the conviction for statutory rape by an authority figure. See id. at *8.
Defendant contends that the evidence was insufficient to support his convictions for
statutory rape by an authority figure because the State failed to show that Defendant
“possessed any ‘parental or custodial authority’” over C.L. Defendant further contends that
the State failed to show that even if Defendant had “parental or custodial authority” over
C.L., that he used “this ‘parental or custodial authority’ in order ‘to accomplish the sexual
penetration’ as the statute required.” We disagree.
Although C.L. testified as to four incidents of sexual contact with Defendant, the State
elected to proceed on three of those incidents. Viewing the evidence in a light most
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favorable to the State, the proof showed that Defendant and C.L.’s foster mother were dating,
and C.L’s foster mother had planned to adopt her. C.L. testified that she considered
Defendant an “authority figure” over her because when her foster mother was not present “or
just if we was all out somewhere and [Defendant] told me to do something, I was expected
to do it.” C.L.’s foster mother acknowledged that when her mother could not care for C.L.
and the other children, Defendant would stay with them at night. However, C.L.’s foster
mother did not consider Defendant to be C.L.’s caretaker or supervisor when the foster
mother was present. During his interview with Detective Zoccola, Defendant said that C.L.
considered him to be an authority figure, someone that she would talk to when in trouble, and
someone that she would confide in. Defendant also referred to himself as “a friend, a father
figure, someone in an authoritative position.”
During each of the three incidents in this case, C.L. was in Defendant’s care. C.L.
testified that the first incident of sexual contact with Defendant occurred in Defendant’s truck
after he had picked her up after school. Defendant was supposed to take C.L. home, but he
drove her to the Taco Bell near Hickory Hollow Mall to buy some food. After receiving the
food, Defendant pulled into the parking lot and told C.L. to perform oral sex on him, and
C.L. complied.
The second incident of sexual contact between Defendant and C.L. occurred at the
home Defendant shared with his sister. C.L. had spent the night at the residence with
Defendant’s niece. C.L. testified that as she walked out of the shower and into the room to
get dressed, Defendant opened the door and asked what she was doing. He then told her to
give him oral sex. When C.L. told Defendant, “I don’t like doing this[,]” Defendant said, “It
won’t take that long.” C.L. then performed oral sex on Defendant, and he ejaculated into the
towel that she had been using.
During the third incident that occurred sometime during February 22-23, 2007, C.L.’s
foster mother left Defendant in charge of her two sons and C.L., who was fourteen at the
time, while the foster mother went to work. C.L. testified that Defendant came into the room
that she shared with her two foster brothers and woke her up. He then led her into the foster
mother’s bedroom and told her to remove her clothing. C.L. stood there for a moment, and
Defendant again told her to remove her clothing. C.L. took off her clothes, and Defendant
sat on the bed and unbuttoned his pants and unzipped his pants. C.L. testified that Defendant
told her to perform oral sex on him, and she said, “No.” Defendant again told her to perform
oral sex on him, and she complied. After that, Defendant told her to lay on top of him, and
he performed oral sex on her while she performed oral sex on him. C.L. testified that
Defendant’s tongue and fingers touched her vagina. She said that this continued for three
to five minutes until Defendant’s cell phone rang. When Defendant answered the phone, C.L.
gathered her clothes and left the room. At trial, C.L. testified that she had removed her
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clothes “[b]ecause [Defendant] told me to. And he used to tell me that if I told anybody, that
I would be taken away from [her foster mother].”
At some point, C.L. told a friend that she did not like Defendant. When the friend
asked why, C.L. responded: “Because he makes me give him head.” When the friend told
C.L. that she should tell someone what happened, C.L. said that she would get in trouble and
be taken away from her foster mother.
Based on our review of the evidence, we conclude that the evidence was sufficient to
support beyond a reasonable doubt Defendant’s convictions for statutory rape by an authority
figure. As pointed out by the State, Defendant used his position of authority to cultivate an
improper relationship with C.L. Defendant had, at the time of the offenses, parental or
custodial authority over C.L. and used the authority to accomplish the sexual penetration as
the statute required. Defendant is not entitled to relief on this issue.
B. Denial of Defendant’s Rule 412 Motion
Defendant argues that the trial court erred in denying his motion to admit evidence of
C.L.’s prior sexual behavior under Rule 412 of the Tennessee Rules of Evidence. More
specifically, he asserts that the trial court should have allowed testimony that C.L. dressed
provocatively in front of Defendant and that she attempted to hug him on one occasion.
Defendant also contends that evidence of C.L.’s prior sexual behavior toward other males
and evidence of her prior knowledge of sexual matters should have been admitted. Finally,
Defendant argues that because statutory rape by an authority figure is not one of the
enumerated offenses covered by Tenn. R. Evid. 412, the rape shield law, the trial court
should have admitted evidence of C.L.’s prior sexual behavior.
Tennessee Rule of Evidence 412 governs the admissibility of evidence about a sex
crime victim’s prior sexual acts. It is a rule of relevance, see State v. Brown, 29 S.W.3d 427,
430 (Tenn. 2000), and we will not overturn a trial court’s Rule 412 ruling absent an abuse
of discretion. State v. Sheline, 955 S.W.2d 42, 46 (Tenn. 1997). Rule 412 provides, in
pertinent part, as follows:
(c) Specific instances of conduct. Evidence of specific instances of a
victim’s sexual behavior is inadmissible unless admitted in accordance
with the procedures in subdivision (d) of this rule, and the evidence is:
(1) Required by the Tennessee or United States Constitution,
or
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(2) Offered by the defendant on the issue of credibility of the
victim, provided the prosecutor or victim has presented
evidence as to the victim’s sexual behavior, and only to
the extent needed to rebut the specific evidence presented
by the prosecutor or victim, or
(3) If the sexual behavior was with the accused, on the issue
of consent, or
(4) If the sexual behavior was with persons other than the
accused,
(i) to rebut or explain scientific or medical
evidence, or
(ii) to prove or explain the source of semen,
injury, disease, or knowledge of sexual
matters, or
(iii) to prove consent if the evidence is of a
pattern of sexual behavior so distinctive
and so closely resembling the accused’s
version of the alleged encounter with the
victim that it tends to prove that the victim
consented to the act charged or behaved in
such a manner as to lead the defendant
reasonably to believe that the victim
consented.
Tenn. R. Evid. 412(c).
Even if one of the above considerations is satisfied, the trial court must nevertheless
conclude that the probative value of the evidence outweighs its unfair prejudice to the victim.
See id. 412(d)(4). “As with other evidentiary rulings, the admissibility of the evidence
[pursuant to Rule 412] rests in the discretion of the trial court.” Sheline, 955 S.W.2d at 46.
Our supreme court has stated,
Although “[t]he right to present witnesses is of critical importance . . . it is not
absolute. In appropriate cases, the right must yield to other legitimate interests
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in the criminal trial process.” Specifically, “[i]n the exercise of this right, the
accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.”
Brown, 29 S.W.3d at 432 (Tenn. 2000) (quoting Chambers v. Mississippi, 410 U.S. 284, 295,
93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)).
In a pre-trial hearing, Marcie Austin testified that she previously owned a company
called Realistic Interventions and had twenty-one years of psychology and counseling
experience. Although she was not licensed, Ms. Austin was qualified as an expert in the field
of children’s sexual issues. Ms. Austin testified that her company provided “in-home
interventions, such as stabilization and privacy situations, preservation services, reunification
services, adoption studies, home studies, supervised therapeutic visits, parenting assessments.
Just a number of things.” Ms. Austin testified that she worked closely with the Department
of Children’s Services (DCS), and she began working with C.L. when C.L. was nine or ten
years old and worked with her for an approximate total of seven years. She said that C.L.
came in for “therapeutic, supervised therapeutic visits with her maternal grandmother[.]”
Ms. Austin specifically noted that she did not conduct any psychological tests with C.L.
Concerning her observations of C.L., Ms. Austin testified that supervised therapeutic
visits with C.L. stopped because C.L.’s maternal grandmother decided that she did not want
to follow through with the visits. After C.L. began living with her foster mother, Ms. Austin
followed her as a “mentor” for a year. Ms. Austin testified that C.L. had a history of abuse
and neglect by her family members. Concerning C.L.’s behavior, Ms. Austin testified:
Within the first week of knowing [C.L.], [she] was placed at [the foster
mother’s] house, her first foster home, she was witnessed humping her body
on [a] neighborhood boy. From that point on there [were] constant issues with
her at school doing inappropriate things, sexually and behaviorally. This has
gone on, and on, and on. There is a very strong history of - - it comes to a
point where I realized, in working with her, the best I could do was try to help,
kind of, restructure her thinking of what she was trying to function on
behaviorally from what she (unintelligible) because it is very difficult to get
the truth out of [C.L.]. And I’m sorry [C.L.] (unintelligible) I will say that on
a personal level I love her as a child dearly, but I will say I cannot believe
anything that comes out of her mouth. She is the first child in my twenty-one
years that I’ve worked with that I would say that about. So I cannot be a good
witness to the court to prosecute anyone that has been alleged to do anything
to her because of the very strong history, and the acting out, and the familial
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history, too. [C.L.] needs help. She’s going to need help for many, many
years. I don’t know that [C.L.] will ever function totally appropriately as an
adult[], what we consider appropriately in society.
On cross-examination, Ms. Austin testified that the “humping” of little boys by C.L.
occurred when C.L. was nine or ten years old. The allegations involving the present case
occurred when C.L. was fourteen years old. Ms. Austin testified that she had no particular
knowledge or information of any sexual behavior involving C.L. that occurred within a
seventy-two hour time frame on February 23, 2007. However, Ms. Austin noted that C.L.
dressed provocatively at nine or ten years old and that she had “absolutely no boundaries
physically or mentally.” Ms. Austin testified that other teenagers told her that C.L. had sex
“with boys in the bathrooms and stuff at school” when she was fourteen to fifteen years old.
She said that C.L. had been physically abused in one of her foster homes. Ms. Austin felt
that C.L. should be tested for “sociopathic behaviors,” and she said that it was very difficult
for C.L. to tell the truth.
On redirect examination, Ms. Austin testified to the following concerning prior
incidents of sexual behavior by C.L.:
Dressing provocatively; approaching men in inappropriate manners, which
means, like, taking your body and touching them, not necessarily humping
them in front of me, but no boundaries. Like, you would be a man standing
there, and her come up and be as close to you as that she’s touching your knee
and your leg. Putting her hands on your chest your hair, and, you know, sexual
acting out playfully that’s very - - could be considered, you know, iffy-like if
the person didn’t know her, if that makes sense. But by the trained
professional you know that that’s not appropriate behavio[]r.
Kisha Cox, Assistant Principal at I.T. Creswell, Arts Magnet Middle School, testified
that she met C.L. when Ms. Cox was a sixth grade teacher at Wharton Middle School.
Concerning C.L.’s behavior at school, Ms. Cox testified:
The first incident, that I can remember, I caught [C.L.] in the second floor
restroom, tongue kissing another male student. And I, also, contacted [C.L.’s
foster mother] when this incident occurred. This is when she was a sixth
grader.
Another incident is, one day I was sitting at my desk - - and I always kept
[C.L.] in close proximity of me because of her promiscuous behavior.
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***
And so I was sitting at my desk and she was talking about the genitalia areas
of her foster mother’s oldest son. And I, kind of, eavesdropped and listened
to the conversation. And she said she had saw him in the restroom and he had
a big genitalia area. And so, after I heard it, I asked [C.L.], you know, “Why
are you having these conversations in the classroom?” And she didn’t see
anything wrong with those types of conversations.
Ms. Cox noted that C.L. would frequently “present herself in a sexual manner to the
young men” in Ms. Cox’s classroom. Parents called Ms. Cox and asked her to keep C.L.
away from their child. Concerning C.L.’s truthfulness, Ms. Cox testified:
I observed, in our - - my personal conversations with [C.L.], [C.L.] was not
truthful about the incidents that I even witnessed with my own eyes. She had
a way of being creative with the truth. Even if you saw her commit the act
with your own eyes she had a way of painting a totally different picture in
which you saw [sic]. And so, therefore, it was like pulling teeth to get the truth
out of [C.L.]. And only when I called [C.L.’s foster mother] is when the truth
would start surfacing, slowly but surely. But it was a task getting the truth out
[of] her, even when I witnessed and heard these incidents.
Ms. Cox testified that all of the incidents occurred before February 23, 2007, when C.L. was
twelve years old and in the sixth grade.
On cross-examination, Ms. Cox testified that C.L. initiated the incident of french
kissing with a boy in the bathroom. She said that the boy did not like it and reported the
incident to her. C.L. told Ms. Cox that she liked the boy and wanted to kiss him. Ms. Cox
testified that C.L. had never reported that she had been raped or sexually molested. She
agreed that sexual behavior among girls thirteen and fourteen years old was not unusual. Ms.
Cox testified that C.L. had a “wide knowledge of sexual activities” at the age of twelve.
C.L.’s foster mother testified that she became C.L.’s foster parent on April 17, 2003.
Concerning C.L.’s sexual behavior, C.L.’s foster mother testified that C.L. saw her youngest
son when he was approximately three years old in the bathroom. C.L. then went to school
and talked about “how big his penis was and how he was all hard[.]” The foster mother also
caught C.L. putting a tattoo on her friend’s bottom. C.L.’s foster mother testified that while
C.L. was attending St. Vincent de Paul Catholic School, she told the foster mother that her
grandmother had raped her. C.L. was approximately ten years old at the time. She also told
other children at school about the incident. C.L.’s foster mother testified:
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She told me that she and her grandmother were laying in the bed, and - - she
said she don’t [sic] sleep in panties, so her grandmother was rubbing on her
[private area]. And the only thing that stopped her from doing it was someone
knocked on her door.
C.L.’s foster mother testified that she was called to St. Vincent’s School for an
emergency meeting with the principal and two other parents in August of 2003. The
individuals were concerned because C.L. was “telling them that she had been raped over the
summer and that she had come on her period.” She said that the other parents wanted to
remove their children from the school because they were concerned that C.L. was “a little
more [sexually] advanced than their children.” C.L.’s foster mother later learned that C.L.
was not truthful about being raped. She testified that on one occasion, she saw C.L. at a
friend’s house “all crawled up on” an older man that C.L. did not know. C.L.’s foster mother
also said that C.L. had an old cell phone that she had been pretending to talk on for two days
while at the friend’s house, and she made the phone ring. The phone was dead when the
foster mother took possession of it.
On cross-examination, C.L.’s foster mother testified that she had no knowledge of
C.L. being involved in any type of sexual activity within seventy-two hours of the incident
with Defendant.
At the Rule 412 hearing, Defendant presented no proof of C.L.’s report that she had
also been molested by her grandfather, or that she had made sexual advances toward a man
named “Mark” at a New Year’s gathering.
In denying Defendant’s 412 motion, the trial court made the following findings:
During the suppression hearing in the instant case, the Court heard testimony
that a previous report had been made regarding allegations of sexual abuse by
her maternal grandfather on or about January 26, 2001. The Court also heard
evidence that the alleged victim has demonstrated inappropriate sexual
behavior and issues with truthfulness.
In the instant case, the defendant seeks to introduce the evidence regarding the
alleged victim’s sexual behavior to challenge her credibility and prior sexual
knowledge. However, the Court finds that the probative value of the evidence
does not outweigh its unfair prejudice to C.L.
***
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The Court heard the arguments of respective counsel and reviewed relevant
case law. Applying the above legal standard, the Court finds that the
defendant has complied with the procedural requirements of Tennessee Rules
Evidence 412(d). The Court also finds that the Tenn. R. Evid. 412 is a rule of
exclusion. Therefore, the evidence of prior sexual abuse and sexual
encounters are not admissible. The defendant’s motion for introduction of
Tenn. R. Evid. 412 evidence is DENIED.
Defendant filed a subsequent motion to reconsider the Rule 412 motion. The trial
court denied the motion to reconsider and found:
In the instant case, the defendant seeks to introduce the evidence regarding the
alleged victim’s sexual behavior to challenge her credibility and prior sexual
knowledge . However, the Court finds that the probative value of the evidence
does not outweigh its unfair prejudice to C.L.
During the suppression hearing in the instant case, the Court heard testimony
from Marcie Austin, Kesha [sic] Cox, and [C.L.’s] foster mother regarding the
alleged victim’s previous sexual behavior and credibility. The alleged victim’s
previous sexual behavior activity took place several years before the alleged
incident.
Therefore, the Court finds that the evidence of prior sexual abuse and sexual
encounters are not admissible. The defendant’s motion for introduction of
Tenn. R. Evid. 412 evidence is once again denied.
Later on, during trial, Defendant sought to admit testimony by C.L.’s foster mother
that C.L., on one occasion, walked into a room in front of Defendant wearing “a spaghetti
strap type little nightgown and her breasts were exposed at the top.” She then attempted to
approach Defendant and give him a hug. C.L.’s foster mother also testified that on another
occasion, C.L. “had on some pants that I told her several times not to wear anymore where
her butt was kind of hanging out and she bent over [near Defendant].” The trial court
excluded the testimony finding that it was “getting into some 412 issues.”
We hold that the trial court committed no error in excluding the evidence that
Defendant sought to admit. As pointed out by the State, none of the instances of sexual
behavior reported by the witnesses resemble the allegation by Defendant that C.L. performed
oral sex on him. Nor does it resemble the acts of fellatio as alleged by C.L. C.L.’s
provocative nature of wearing clothing and her behavior with other children several years
before the present offenses is not relevant to the issue of Defendant’s guilt or innocence in
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raping C.L. See State v. Douglass Leon Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL
1281857 (Tenn. Crim. App. Mar. 28, 2013). Defendant is not entitled to relief on this issue.
Defendant further contends that the trial court erred in admitting the evidence because
Tenn. R. Evid. 412 is not applicable to the offense of statutory rape by an authority figure.
We agree. Tenn. R. Evid. 412 provides:
Notwithstanding any other provision of law, in a criminal trial, preliminary
hearing, deposition, or other proceeding in which a person is accused of an
offense under Tenn. Code Ann. §§ 39-13-502 [aggravated rape], 39-13-503
[rape], 39-13-504 [aggravated sexual battery], 39-13-505 [sexual battery], 39-
13-507 [spousal sexual offenses], 39-13-522 [rape of a child], 39-15-302
[incest], 39-13-506 [statutory rape], 39-13-527 [sexual battery by an authority
figure], 39-13-528 [solicitation of minors for sexual acts], or the attempt to
commit any such offense. . .
Even though Rule 412 is not applicable to the offense of statutory rape by an authority
figure, any error in not admitting the evidence was harmless. Evidence of consent as proven
by C.L.’s sexual history would be irrelevant. Defendant argues that he “presented the jury
with the defense that this sexual contact [with C.L.] was consensual and was, therefore,
neither Rape, nor was it Statutory Rape by an Authority Figure.” However, as pointed out
by the State, consent is not a defense to statutory rape. In State v. Roland R. Smith, No.
M2004-01457-CCA-R3-CD, 2005 WL 1541874 (Tenn. Crim. App. June 29, 2005), this
Court stated: “The purpose of the crime of statutory rape is to punish persons old enough to
know better from taking sexual advantage of those deemed too young to effectively consent.”
Id. at *11, overruled on other grounds by State v. Collier, 411 S.W.3d 886 (Tenn. 2013).
Consent is not a defense to statutory rape. State v. McKnight, 900 S.W.2d 36, 48 (Tenn.
Crim. App. 1994). Moreover, we have already determined that the evidence was not relevant
to the issue of Defendant’s guilt or innocence in raping C.L. Defendant is not entitled to
relief on this issue.
C. Impeachment with Prior Felony Drug Convictions
Defendant next argues that the trial court improperly allowed Defendant’s prior felony
drug convictions to be used as impeachment. Defendant cites State v. Waller, 118 S.W.3d
368, 371 (Tenn. 2003), for the proposition that drug crimes do not involve dishonesty or false
statement, and he asserts that the trial court “applied an incorrect legal standard when making
its ruling” and that the error “prejudiced his defense.” The State concedes that the trial court
erred by ruling that Defendant could be impeached with the prior felony drug convictions but
maintains that the error was harmless. We agree with the State.
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On May 29, 2009, the State filed a notice of intent to impeach Defendant with the
following prior felony convictions: (1) felon in possession of a handgun (September 4, 2003);
(2) possession of a controlled substance with intent to sell or deliver (November 6, 2003);
(3) possession of cocaine (February 16, 1996); (4) sale of cocaine (September 29, 1994); and
(5) possession of cocaine (January 12, 1994). It was also noted by the State that Defendant
had pending federal drug charges for which he was arrested while on bond for the offenses
in the present case.
Concerning Defendant’s prior felony convictions, the trial court found:
And I did read State v. Waller, a case involving one charge of counterfeit drug
sale, and he was - - the Court had ruled that his prior drug convictions were
admissible, but it was harmless error in this particular case.
I also read State v. Walker, where it was a somewhat similar matter, where a
person was on trial for drugs and had prior drug convictions and the Trial
Court allowed them and, of course, that matter was reversed. And that’s
because the prior convictions were of a similar nature.
In this particular case, the prior convictions before this Court are not of a
similar nature. They involve felony possession of a handgun, possession of a
controlled substance with intent, and whatever the federal offense was, some
kind of federal drug offense, all of which would require sentences of a year or
more. And this Court believes that they are admissible should the defendant
take the witness stand.
The trial court then noted that the convictions that were more than ten years old were time
barred.
Under Tennessee Rule of Evidence 609, prior crimes may be used to attack a
witness’s credibility under certain circumstances. The crime itself must be punishable by
death or imprisonment in excess of one year or involve dishonesty or false statement. Tenn.
R. Evid. 609(a)(2). If the witness to be impeached is a criminal defendant, the State must
give written notice of its intent to use the prior convictions. Tenn. R. Evid. 609(a)(3).
Furthermore, for criminal defendants, the trial court “upon request must determine that the
conviction’s probative value on credibility outweighs its unfair prejudicial effect on the
substantive issues.” Id. The trial court must make this ruling prior to the defendant’s
testimony. Id. This particular balancing test is applied to convictions which are not stale.
See Tenn. R. Evid. 609(b). A trial court’s decisions regarding the admissibility of prior
convictions are reviewed for an abuse of discretion. Waller, 118 S.W.3d at 371.
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In State v. Waller, the Tennessee Supreme Court rejected the contention that prior
drug convictions involve dishonesty or false statement within the meaning of the Rule.
Waller, 118 S.W.3d at 372. The Court concluded that “prior felony drug convictions are, at
best, only slightly probative of [the defendant’s] credibility.” Id. at 373. Because the
convictions in Waller had “some relevance” to credibility, the Court went on to analyze the
similarity of the offenses to the charged crimes, concluding that their substantial similarity
was prejudicial and the admission of the evidence was error. Waller, 118 S.W.3d at 373-74.
Concerning this issue, the Supreme Court made the following findings:
In our view, Waller’s prior convictions do not involve dishonesty or false
statement as contemplated by Rule 609. Waller’s three prior convictions are
for possession of a controlled substance for resale, sale of a controlled
substance, and facilitation of sale of a controlled substance. The trial court
based its finding that these felony drug convictions involve dishonesty upon
the illegality of the possession of a controlled substance. We are unwilling to
hold that every conviction for an illegal act is indicative of dishonesty.
Accepting the trial court’s reasoning “would preclude any principled
differentiation among crimes of varying impact on witness veracity.” State v.
Zaehringer, 325 N.W.2d 754, 757 (Iowa 1982); see also Gregory v. State, 616
A.2d 1198, 1204 (Del. 1992) (rejecting reasoning similar to that applied by the
trial court in the present case). Under the trial court’s rationale, virtually all
convictions for crimes committed knowingly or intentionally would be
admissible for impeachment purposes. We decline to read Rule 609 in such
a manner.
The offenses for which Waller has been convicted do not comport with the
plain meaning of “dishonesty.” The statutory elements of these offenses do
not require that the controlled substance to be sold or possessed in a manner
that involves deceit or fraud. See [State v.] Walker, 29 S.W.3d [885, 891
(Tenn. Crim. App. 1999)] (stating that “the evidence relating to the elements
of the crime is to be considered in questioning the offense’s relevance to
dishonesty, not the general circumstances or environment within which the
offense was committed”); see also United States v. Lewis, 626 F.2d 940, 946
(D.C. Cir. 1980) (interpreting Rule 609 of the Federal Rules of Evidence to
require that the crime involve dishonesty or false statement as an element of
the statutory offense); Gregory, 616 A.2d at 1204 (concluding that the
elements of the crime of possession of a controlled substance with intent to
deliver “require no proof of conduct involving lying, deceiving, cheating,
stealing or defrauding”); Zaehringer, 325 N.W.2d at 756 (holding that the
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elements of the delivery of marijuana offense do not involve “deceit, fraud,
cheating, or stealing”).
Waller, 118 S.W.3d at 371-72 (footnotes omitted).
As pointed out by the State, the three convictions to be considered in the present case
were for felony possession of a handgun, possession of a controlled substance with intent to
sell or deliver, and a federal drug conviction, none of which involved an element of
dishonesty. Therefore, the trial court erred by (1) failing to make a finding of probative value
over prejudicial effect; and (2) ruling that the convictions not involving dishonesty could be
used to impeach Defendant’s credibility if he chose to testify.
Regardless, the admission of prior convictions whose probative value is outweighed
by the danger of unfair prejudice is subject to harmless error analysis. Waller, 118 S.W.3d
at 374. An error by the trial court does not require relief unless, “considering the whole
record, error involving a substantial right more probably than not affected the judgment or
would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). In Waller, the
defendant’s prior convictions were similar in nature to the offense for which he was charged
at trial. Regardless, the Supreme Court found the error to be harmless:
We must next consider whether the error in this case affirmatively or more
probably than not affected the judgment to Waller’s prejudice. See Tenn. R.
Crim. P. 52(a); Tenn. R. App. P. 36(b); [State v.] Galmore, 994 S.W.2d [120,
125 (Tenn. 1999)]. Waller is not entitled to relief if he was not prejudiced by
the error. State v. Taylor, 993 S.W.2d 33, 35 (Tenn. 1999).
Waller presented no evidence at trial, and he failed to make an offer of proof
as to his proposed testimony. See Galmore, 994 S.W.2d at 125 (holding that
an offer of proof is not required to preserve a claim of an erroneous ruling on
admissibility for review but concluding that it may be the only way to
demonstrate prejudice). He also has presented no argument on appeal
concerning the substance of his contemplated testimony. At trial, the State
presented the testimony of two police officers who observed Waller sell the
counterfeit substance. This evidence against Waller is overwhelming and
uncontroverted. Consequently, Waller has failed to demonstrate that he was
prejudiced by the trial court’s erroneous ruling. We hold, therefore, that the
trial court’s error in ruling that Waller’s prior felony drug convictions would
be admissible for impeachment purposes was harmless. See Galmore, 994
S.W.2d at 125; Taylor, 993 S.W.2d at 35.
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In this case, as in Waller, although the admission of the evidence was in error, its
admission did not more probably than not affect the judgment. Tenn. R. App. P. 36(b).
Defendant made no offer of proof as to his proposed testimony at trial, and he offers no
argument on appeal concerning the substance of any testimony. Moreover, as argued by the
State, Defendant concedes that his version of the facts, and his denial of any wrongdoing
were “raised through the playing of his pre-trial statement to Detective Zoccola[.]” We
conclude that admission of the convictions was in error, however, that error was harmless.
D. Testimony by a Forensic Social Worker Regarding C.L.’s Medical History
Defendant argues that the trial court erred by allowing Lisa Dupree, a forensic social
worker at the Our Kids Center in Nashville, to testify about C.L.’s medical history that C.L.
had given to former Our Kids employee Lorraine Gray. He contends that the testimony was
inadmissible hearsay as a prior consistent statement used to bolster C.L.’s credibility.
Defendant further asserts that the testimony was not admissible as an exception to the hearsay
rule as being made for the purpose of medical diagnosis and treatment. Our Supreme Court
has stated that “questions concerning the admissibility of evidence rest within the sound
discretion of the trial court, and this Court will not interfere in the absence of abuse
appearing on the face of the record.” Pylant v. State, 263 S.W.3d 854, 870 (Tenn. 2008)
(citing State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008); State v. DuBose, 953 S.W.2d
649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v.
Harris, 839 S.W.2d 54, 73 (Tenn. 1992)). Hearsay is defined as “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). As a general rule, hearsay is not
admissible during a trial, unless the statement falls under one of the exceptions to the hearsay
rule. Tenn. R. Evid. 802.
Rule 803(4) of the Tennessee Rules of Evidence provides that statements made for
the purpose of medical diagnosis and treatment are admissible as an exception to the hearsay
rule. Specifically, the Rule states that:
[s]tatements made for the purposes of medical diagnosis and treatment
describing medical history; past or present symptoms, pain, or sensations; or
the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis and treatment.
Tenn. R. Evid. 803(4). Rule 803(4) is based upon the notion that statements made under
conditions prescribed by the rule are presumptively trustworthy.” State v. McLeod, 937
S.W.2d 867, 870 (Tenn. 1996).
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At trial, C.L. testified concerning the incidents of sexual abuse by Defendant. On
cross-examination, Defendant’s counsel specifically asked C.L. what happened when she was
examined at the hospital:
Q: And you weren’t truthful with the people at the hospital when you went
and talked to them later on that same day; right?
A: I don’t feel that it was being untruthful. I just - I didn’t lie about
anything. I just told them what happened that night.
Q. Well, do you recall them asking you if this was the only time that
anything like this had happened?
A: After I came from the hospital and I got interviewed by the detectives;
not the hospital.
Q: So you don’t recall them asking you that same question too?
A: No, sir.
Q: So if they had a report that they did after this and they put in there that
you told them this was the only time that it happened, you don’t know
why they would have put that in the report?
A: I never said that it didn’t happen. I said I don’t remember.
Q: Okay. So it might have been that you told the people at the hospital
too, that this was the only time that it had happened?
A: Yes, sir.
Ms. Dupree was later called to testify at trial. She testified that when a child is seen
at the Our Kids Center, a medical history is taken “solely for the purposes of medical
diagnosis and treatment.” The defense objected to C.L.’s medical report arguing that it was
testimonial in nature and should not be admitted. The trial court overruled the objection.
C.L. reported to Ms. Gray that Defendant had put his mouth on her “private parts.” C.L.
indicated that Defendant had “swiped his hands by her genital area, but did not touch in her
genital area with his hands[.]” Ms. Dupree testified that C.L. also said that approximately
two months earlier, Defendant asked her to put her mouth on his private parts. C.L. then
disclosed the conduct to the daughter of her foster mother’s friend. Ms. Dupree testified that
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C.L. indicated that her last menstrual cycle ended two days prior to the exam. There was
some blood noted during the physical exam. Ms. Gray also documented that C.L. indicated
that Defendant told C.L., “Don’t do this, you don’t want to leave don’t go telling nobody this,
you’ll have to leave[.]”
The statements by C.L. to Ms. Gray were hearsay, and absent a relevant hearsay
exception, were inadmissible. Here, as argued by the State, C.L.’s statements were taken in
order to determine an appropriate medical diagnosis and/or treatment and therefore were
admissible as a hearsay exception under Rule 803(4) of the Tennessee Rules of evidence.
Defendant seems to argue that C.L.’s medical history would be admissible only “when
a witness is impeached through the introduction of a prior inconsistent statement that
suggests that the witness’ statement was either fabricated or based upon faulty recollection.”
However, as previously noted, Defendant had challenged C.L. on cross-examination
regarding her report to medical personnel previous to or during C.L.’s medical examination.
When a defendant attacks the victim’s credibility, the State may rehabilitate the witness by
offering evidence of a prior consistent statement. In State v. Joshua Brandon Tate, No.
M2011-02128-CCA-R3-CD, 2013 WL 3964122 (Tenn. Crim. App. July 31, 2013 ), this court
stated:
There are actually two circumstances in which a prior consistent statement of
a witness is admissible: (1) where a prior consistent statement is allowed “to
rebut the inference that the witness’s testimony was a recent fabrication”,
State v. Bush, 942 S.W.2d 489, 516 (Tenn. 1997); and (2) when a witness’s
prior statement is used out of context to cross-examine the witness. State v.
Boyd, 797 S.W.2d 589, 593-94 (Tenn. 1990). “The impeaching attack on the
witness’s credibility need not be successful for admissibility of a prior
consistent statement.” State v. Albert R. Neese, No. M2005-00752-CCA-R3-
CD, 2006 WL 3831387, at *6 (Tenn. Crim. App., at Nashville, Dec. 15, 2006),
perm. app. denied (Tenn. April 23, 2007). More specifically, in State v.
Benton, 759 S.W.2d 427, 433-34 (Tenn. Crim. App. 1988), this Court
explained that a prior consistent statement is admissible:
[U]nder general evidentiary rules, . . ., as an exception to the
rule against hearsay, to rehabilitate a witness when insinuations
of recent fabrication have been made, or when deliberate
falsehood has been implied. But before prior consistent
statements become admissible, the witness’ testimony must have
been assailed or seriously questioned to the extent that the
witness’ credibility needs shoring up.
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See also Danny Ray Smith, No. M2009-02275-CCA-R3-CD, 2011 WL
1432033, at *14 (Tenn. Crim. App., at Nashville, Apr. 13, 2011), perm. app.
denied (Tenn. Aug. 25, 2011) (stating that prior consistent statements may be
admissible to rebut the inference that the witness recently fabricated the
testimony). It is important to note that properly admitted prior consistent
statements are not hearsay because they are not offered for the truth of the
matter asserted. See State v. Livingston, 907 S.W.2d 392, 398 (Tenn. 1995);
State v. Joseph Shaw, Jr., No. W2009-02326-CCA-R3-CD, 2010 WL
3384988, at *7 (Tenn. Crim. App., at Jackson, Aug. 27, 2010), perm. app.
denied (Tenn. 2011); Albert R. Neese, 2011 WL 1432033, at *6; Neil P. Cohen
et al., Tennessee Law of Evidence § 8.01 [9] (6th ed. 2011).
Joshua Brandon Tate, 2013 WL 3964122, at *7.
Based on our review, we conclude that the trial court did not err in allowing the
admission of C.L’s statements to Ms. Gray as testified to by Ms. Dupree concerning C.L.’s
medical history. The testimony was properly admitted for the purpose of medical diagnosis
and treatment and as a prior consistent statement to rebut Defendant’s allegation that C.L.’s
testimony was fabricated. Defendant is not entitled to relief on this issue.
E. Failure to Charge Attempted Rape as a Lesser-Included Offense of Rape
Defendant argues that the trial court erred in failing to instruct the jury on attempted
rape as a lesser included offense of rape. In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our
Supreme Court concluded that an attempt to commit the charged offense is a lesser included
offense of the charged offense. Id. at 467. Tenn. Code Ann. § 40-18-110(a) provides:
When requested by a party in writing prior to the trial judge’s instructions to
the jury in a criminal case, the trial judge shall instruct the jury as to the law
of each offense specifically identified in the request that is a lesser included
offense of the offense charged in the indictment or presentment. However, the
trial judge shall not instruct the jury as to any lesser included offense unless the
judge determines that the record contains any evidence which reasonable
minds could accept as to the lesser included offense. In making this
determination, the trial judge shall view the evidence liberally in the light most
favorable to the existence of the lesser included offense without making any
judgment on the credibility of evidence. The trial judge shall also determine
whether the evidence, viewed in this light, is legally sufficient to support a
conviction for the lesser included offense.
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We also note that absent a written request for an instruction on a lesser included offense the
failure of the trial court to instruct the jury on the lesser included offense is not available as
a ground for relief either in a motion for new trial or on appeal. T.C.A. § 40-18-110(c)
(2012).
Our review of the record reveals that Defendant failed to file a written request asking
the trial court to instruct the jury on the lesser included offense of attempted rape. However,
the record contains the following exchange at trial:
THE COURT: All right. [Trial counsel], you had requested a
charge?
[TRIAL COUNSEL]: Yes, Your Honor. I requested that to each of the
charged offenses and the lesser included offenses
that are in the jury instruction, adding the charge
of attempt of those different - - rape, sexual
battery, statutory rape by an authority figure, and
statutory rape - - based on our in-chambers
conversation, I understand the Court is ruling that
they’re going to deny that at this time, based on
State vs. Edwards. I would still request that that
instruction be giv[en].
THE COURT: All right. Well, as I said, I’m guided by State v.
Edwards, it’s a September 2011 case, which
essentially says that either the act was committed
or it was not. Unless there was proof that there
w[a]s some attempt made, then, attempt is not a
part of the jury instructions. And I don’t know of
any evidence that said there was an attempt made.
So, I am going to leave out the attempt on each of
the Counts. All right.
Since Defendant failed to file a written request for jury instructions prior to trial, this issue
is waived on appeal unless it rises to the level of plain error. State v. Page, 184 S.W.3d 223,
226 (Tenn. 2006).
Even if “attempt” had been charged as a lesser-included offense, the jury would not
have been permitted to consider it as an option to convict Defendant. The jury instructions
are not included in the transcript. We assume, however, that the trial court properly charged
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the jury pursuant to State v. Davis, 266 S.W.3d 896 (Tenn. 2008) wherein our supreme court
held,
We hold that, where a criminal defendant is entitled to jury instructions on
lesser-included offenses, the trial court shall instruct the jury to consider the
offenses in order from greatest to least within each count of the indictment and
that it shall not proceed to consider any lesser-included offense until it has first
made a unanimous determination that the defendant is not guilty of the
immediately-preceding greater offense.
Davis, 266 S.W.3d at 910.
The jury made a unanimous decision that Defendant was guilty of each offense as
charged in the indictment. The jury was prohibited from considering any lesser offense.
Accordingly, if error, the error was harmless beyond a reasonable doubt, and therefore not
“plain error.” Defendant is not entitled to relief on this issue.
F. Sentencing
Defendant next contends that the trial court erred in sentencing him. More
specifically, he states that the trial court failed to “comply with the purposes espoused in
[Tenn. Code Ann. §] 40-35-103.” Defendant argues that the trial court erred in its application
of an enhancement factor and that the trial court erred in ordering his sentences to be served
consecutively in Counts One and Three.
In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial
evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The reviewing court should uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the purposes
and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court
imposes a sentence within the appropriate range and properly applies the purposes and
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principles of the Sentencing Act, its decision will be granted a presumption of
reasonableness. Id. at 707.
We note that even a trial court’s misapplication of an enhancing or mitigating factor
in passing sentence will not remove the presumption of reasonableness from its sentencing
determination. Bise, 380 S.W.3d at 709. Here, as enhancement factors, the trial court found
that Defendant had a history of criminal convictions in addition to those necessary to
establish the appropriate range and that the offense was committed to gratify the defendant’s
desire for pleasure or excitement. Tenn. Code Ann. § 40-35-114(1), (7). The trial court
further found that Defendant abused a position of trust in that “he was there to look after this
particular young lady at those particular times - at least, at most of the particular times.”
Tenn. Code Ann. § 40-35-114(14). Defendant correctly argues that application of
enhancement factor (14) was inappropriately applied to the offense of statutory rape by an
authority figure, where Defendant’s position of authority is an element of the offense.
However, application of factor (14) was appropriate for the offense of rape. Statutory rape
by an authority figure was merged with the corresponding conviction of rape. The trial court
properly sentenced Defendant to fifteen years for each offense, which was within the
applicable range of punishment.
Defendant argues that the trial court improperly imposed consecutive sentencing. Our
supreme court has recently held that “the abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to consecutive sentencing determinations . . . if [the
trial court] has provided reasons on the record establishing at least one of the seven grounds
listed in Tennessee Code Annotated section 40-35-115(b)[.]” State v. James Allen Pollard,
___ S.W.3d ___, No. M2011-00332-SC-R11-CD, 2013 WL 6732667, at *7-9 (Tenn. Dec.
20, 2013). Thus, the imposition of consecutive sentencing is subject to the general
sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed” and that it “should be the least severe measure necessary
to achieve the purposes for which the sentence is imposed[.]” Tenn. Code Ann. § 40-35-
103(2), (4). Further, “[s]o long as a trial court properly articulates reasons for ordering
consecutive sentences, thereby providing a basis for meaningful appellate review, the
sentences will be presumed reasonable and, absent an abuse of discretion, upheld on appeal.”
James Allen Pollard at *9 (citing Tenn. R. Crim. P. 32(c)(1) (“The order [for consecutive
sentences] shall specify the reasons for this decision and is reviewable on appeal.”)); see also
Bise, 380 S.W.3d 705.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order
sentences to run consecutively if it finds any one of the following criteria by a preponderance
of the evidence:
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(1) The defendant is a professional criminal who has knowingly devoted
the defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by
a competent psychiatrist who concludes as a result of an investigation
prior to sentencing that the defendant’s criminal conduct has been
characterized by a pattern of repetitive or compulsive behavior with
heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little
or no regard for human life, and no hesitation about committing a crime
in which the risk to human life is high;
(5) 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 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;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
These criteria are stated in the alternative; therefore, only one need exist to support
the appropriateness of consecutive sentencing. In this case, the trial court made the following
findings concerning consecutive sentencing:
Now, with respect to 40-35 - - I believe it is 115, but let me - - 40-35-113 - -
115, excuse me. The Court, has to look at - - and subsection five, which states
that: “The defendant is convicted of two or more statutory offense involving
sexual abuse of a minor with consideration of aggravating circumstances
arising from the relationship between the defendant and C.L.,” et cetera. The
Court believes that that does come into play. So, the Court is going to
sentence him to two of the counts consecutive to one another and the third
count concurrent, for an effective sentence of thirty years.
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The records supports the trial court’s finding due to the relationship of Defendant to
the victim and Defendant’s position of trust with the victim. The evidence at trial also
suggested that the sexual abuse spanned a significant time frame.
We conclude that the sentencing decision was “within the appropriate range and the
record demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. Defendant is not entitled to relief.
Accordingly, we affirm the judgments of the trial court.
___________________________________
THOMAS T. WOODALL, JUDGE
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