State of Tennessee v. Raymond Arthur Klein

09/06/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 8, 2017
STATE OF TENNESSEE v. RAYMOND ARTHUR KLEIN
Appeal from the Circuit Court for Montgomery County
No. 41201121 William R. Goodman, III, Judge
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No. M2017-00061-CCA-R3-CD
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The defendant, Raymond Arthur Klein, appeals his convictions and sentences for
aggravated sexual battery and criminal attempt to commit rape of a child. The defendant
argues there is insufficient evidence to support the jury’s verdict. Additionally, the
defendant argues a violation of his Sixth Amendment right to confront the witnesses
against him because he was not permitted to introduce the results of a polygraph
examination from a prior investigation. Finally, the defendant argues his sentence was
improperly ordered to be served consecutively to a prior sexual battery conviction.
Following our review, we affirm the judgments and sentence of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and D. KELLY THOMAS, JR., JJ., joined.
Jacob W. Fendley, Clarksville, Tennessee, for the appellant, Raymond Arthur Klein.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; John W Carney, District Attorney General; and David H. Findley, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
A. Trial
On June 12, 2012, a Montgomery County grand jury indicted the defendant for
three counts of sexual exploitation of a minor, one count of rape of a child, and one count
of aggravated sexual battery. The State ultimately dismissed the three sexual exploitation
counts, and the defendant went to trial on the rape of a child and aggravated sexual
battery charges. The victim in this case, A.K., is the defendant’s daughter and was six
years old at the time of the abuse.1
M.K., the victim’s mother and the defendant’s former wife, initiated the
investigation of the defendant after the victim disclosed the abuse.2 M.K. stated that in
December of 2010, she and the defendant were in the process of getting a divorce, despite
still residing in the same house. M.K. indicated a desire to return to New York once the
divorce was finalized. She stated that prior to the accusation the defendant was likely to
receive custody of the victim for 100 days out of the year as part of the proposed
parenting plan.
M.K. testified that the victim had diaper rash problems when she was younger,
which necessitated applying lotion to the victim’s vaginal areas. At one point the
defendant had informed M.K. that the victim had placed his hand on her vaginal area
because she was “itchy.” The defendant at this point expressed concern to M.K. that the
victim was being abused.
M.K. also stated she would often see the defendant and the victim under the bed
covers together watching cartoons. She did not see this as a concern because, “[it] was
[the victim’s] father.” M.K. indicated that in December 2010 the victim told her the
defendant had been abusing her. M.K. contacted the police and confronted the defendant.
When asked by M.K. “Why [the defendant] had done it,” the defendant asked “When?”
M.K. testified that she had not instructed the victim to fabricate the allegations or the
facts surrounding them.
On cross-examination, M.K. was asked about the contentious nature of the
divorce. M.K. responded that her marriage to the defendant was not stable and that they
had separated “a few times” throughout the course of the marriage.
Additionally, M.K. was questioned about a prior allegation of abuse against the
defendant concerning the victim. M.K. testified that after this prior allegation surfaced,
she contacted the Department of Child Services (“DCS”). In response, DCS began an
investigation, and, as part of this investigation, the defendant was given a polygraph
examination. The polygraph results did not indicate the defendant had abused the victim,
1
It is the policy of this Court to refer to victims of sexual abuse by their initials. For purposes of
this opinion “the victim” will refer to A.K. unless otherwise noted.
2
In order to further protect the victim’s identity, we will utilize initials when referring to
her mother.
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and DCS concluded the allegations were unfounded. While M.K. was being questioned
about the DCS investigation on cross-examination, the following exchange took place:
Defense counsel: Okay. And DCS investigated this?
Victim’s mother: Yes. They did
Defense counsel: [The defendant] took a polygraph examination and passed
it?
Prosecution: Objection, your Honor
Trial court: Sustained
Defense counsel: Well, Judge, I’m just trying to get why she stayed with
him.
Trial court: Alright. Just Ask. Sustained.
Defense counsel: And you decided to stay with him after DCS did their
investigations. Correct?
Victim’s mother: Yes.
Defense counsel: So those allegations were unfounded?
Victim’s mother: Yes.
M.K. testified that she did not find the prior allegation to be as serious as the December
abuse. When asked what set the prior accusation apart, she stated the victim was very
“nonchalant” in recounting what happened to prompt the DCS investigation, but the
victim was “very, very upset” while relating the abuse that occurred in December 2010.
M.K. indicated the victim had a “nickname” to describe the 2010 abuse: “the secret.”
At the conclusion of M.K.’s testimony, a bench conference was held to further
discuss the defendant’s question about the polygraph examination. At the conclusion of
the bench conference, the trial court issued a curative instruction directing the jury not to
consider the question relating to the polygraph examination. Specifically the trial court
instructed the jury:
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All right, Ladies and Gentlemen, there was a question asked on cross-
examination of [M.K.], question asked that had the word polygraph in it,
and I am instructing you at this point to disregard that question; to put that
question out of your mind and to not speculate as to what the response
would be.
The State next called Detective Larry Boren, of the Clarksville Police Department,
who was in charge of investigating the victim’s allegations. When Detective Boren
spoke to the defendant, the defendant claimed the only time he touched the victim was to
apply the lotion for her diaper rash. Detective Boren testified further that the defendant
told him that he would routinely watch cartoons with the victim in his bed and other
places in the house. Finally, Detective Boren indicated he gained all the information
concerning the abuse of the victim from M.K. and the defendant and that he did not
interview the victim.
The State then called the victim, who was twelve years old at the time of trial, and
who was six years old when the abuse occurred. When asked on direct examination
“about the time [the defendant] did something,” the victim responded she was in the
defendant’s bedroom, in bed with defendant. The victim testified about the design of the
comforter on the bed and the television show they were watching. The State asked the
victim: “[T]his time we are talking about where you and your dad are laying in the bed
watching [cartoons], where were your dad’s hands?” The victim responded: “[T]hat’s
when my dad would do the thing to me.” The victim proceeded to testify the defendant
would pull down her underwear, rest his hands on her vagina, rub “in a circle” on her
vagina, as well as digitally penetrate her.
When questioned about why she did not tell her mother, the victim testified the
defendant told the victim her mother would “leave her behind or not believe her.” The
victim testified due to these threats, she did not come forward because “she [could not]
imagine life without her [mother].” The victim also testified she was unaware her parents
were going through a divorce at the time of the abuse. When asked about her current
opinion of the defendant, the victim stated “she still loved him” but “if [the defendant]
loved [her] why would he do it.”
The State concluded its direct examination of the victim by asking about what she
did for Christmas that year. The victim testified that she traveled to Long Island to see
her grandparents and recalled they were “happy to see her.” The State then asked if the
abuse “happed[ed] before [the victim] went to Long Island for Christmas.” The victim
confirmed that it had.
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Sue Ross, a forensic interviewer with Our Kids Center in Nashville, testified that
she interviewed and conducted a physical examination of the victim. According to Ms.
Ross, the victim was “apprehensive” during the exam and interview. Additionally, the
victim was reluctant to answer any questions about her genital area and did not want to
speak about any touching. Ms. Ross stated such behavior is not “uncommon” for
children. The forensic physical examination showed no damage to the victim’s vagina or
hymen. Ms. Ross noted, though, that with a child of that age, digital penetration would
likely not leave any detectable evidence. Ms. Ross testified that in her professional
experience with abuse cases involving digital penetration, absent extreme force, it is very
unlikely for a physical exam to reveal any injuries to the genital area. In cases of familial
sexual abuse, a lack of vaginal injury is also very common because the abuser is usually
far less forceful with the victim. Ms. Ross noted even without injury she would never
rule out sexual abuse because “the most important thing is what [the victim] is saying.”
After this testimony, the State rested and the defendant did not put on any additional
proof.
After closing statements, the jury was instructed on the elements of rape of a child
and aggravated sexual battery. During deliberations, the jury returned a question for the
trial court. The jury asked: “It is unclear whether or not the touching that occurred
happened multiple times from Jan. 2010 to Dec. 2010 or only once; can you clarify?”
After consulting with both the State and the defendant, the trial court informed the jury as
follows:
My instructions to you [are] that you are to base your decision in this
case, and your verdict, on the evidence you have heard in the courtroom.
And your decision is to be based — or the verdict is to be rendered with
reference to the charges that are embraced in the indictment. All right? All
right.
Upon completion of the deliberations, the jury returned a verdict of guilty of aggravated
sexual battery and of the lesser-included offense of criminal attempt to commit rape of a
child. The judge polled the jury to confirm a unanimous verdict.
B. Sentencing
During the sentencing hearing, the defendant submitted as mitigating factors that
his conduct “did not threaten serious bodily injury” and that he “was suffering from a
mental . . . condition that significantly reduced the defendant’s culpability.” See Tenn.
Code Ann. § 40-35-113(1),(8). In turn, the State argued the defendant’s sentence should
be enhanced because “the defendant [had] a previous history of criminal convictions or
criminal behavior;” “the offense involved a victim and was committed to gratify the
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defendant’s desire for pleasure or excitement;” and “the defendant abused a position of . .
. private trust . . . in a manner that significantly facilitated the commission or the
fulfillment of the offense.” See Tenn. Code Ann. § 40-35-114(1),(7),(14). The State also
argued consecutive sentencing was appropriate because “the defendant [was] convicted
of two . . . statutory offenses involving sexual abuse of a minor.” See Tenn. Code Ann. §
40-35-115(b)(5). At the time of sentencing, the defendant was serving a nine-year term
for aggravated sexual battery of one of the victim’s friends. See State v. Klein, No.
M2014-02340-CCA-R3-CD, 2016 WL 493248, at *1-2 (Tenn. Crim. App. Feb. 9, 2016),
perm. app. denied (Tenn. June 23, 2016) (summarizing the facts of the defendant’s prior
charge).
The trial court accepted the first mitigating factor submitted by the defendant,
finding the conduct did not threaten serious bodily harm. However, upon considering
there was no factual basis to support it, the trial court rejected the defendant’s argument
that he suffered from a mental condition that reduced his culpability. The trial court
determined all three of the enhancement factors submitted by the State were applicable.
Accordingly, the trial court sentenced the defendant to concurrent ten-year sentences for
each conviction.
Next, the trial court considered the State’s request for consecutive sentencing
based on the defendant’s prior conviction for aggravated sexual battery. The trial court
noted under “State v. Wilkerson . . . the [c]ourt is required to make . . . an analysis of the
facts of the case” in order to apply consecutive sentencing. The trial court announced the
following determination:
The [d]efendant had previously been convicted of aggravated sexual
[battery] of . . . [the victim’s] friend, and then in the subject case before us
today he stands convicted of the aggravated sexual [battery] and attempted
rape of a child, which was his own child. Particularly disturbing to the
[c]ourt that the [d]efendant would do this to a child . . . to which he was
brought into contact with as a result of the friendship [the victim] had . . .
with another, and then that likewise, the same act would . . . occur on his
own child. . . . [P]articularly concerning to the court, the statements that
[the victim] made in testimony that she just wanted to know that her father
loved her. [That is] all she wanted. And I find that . . . is . . . residual
physical and mental damage to the victim in this case to have to deal with
the fact that one’s own parent would do this, and then to articulate that the
issue that remains is [the] question about whether the parent loves her.
Based on these facts, the trial court ordered the defendant’s sentences in the instant
matter to run consecutive with his prior conviction. On October 27, 2016, the defendant
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filed a motion for a new trial which was denied on February 12, 2017. This appeal
followed.
ANALYSIS
On appeal, the defendant challenges both his convictions and sentence. The
defendant argues there was insufficient evidence for a jury to convict him based on the
jury’s question during deliberations. Additionally, the defendant argues trial court’s
decision to bar questions about the polygraph results violated his right to cross-
examination and to confront the witnesses against him. Finally, the defendant argues the
trial court improperly set his sentence to run consecutively with his prior conviction. The
State argues there was sufficient evidence to convict the defendant on both counts; it was
proper to exclude questions about the polygraph; and the trial court acted within its
discretion in sentencing the defendant. Upon our thorough review of the record, we agree
with the State and affirm the judgments of the trial court.
A. Sufficiency of the Evidence
When the sufficiency of the evidence is challenged, the relevant question for the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge
and the jury see the witnesses face to face, hear their testimony and observe
their demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.
The defendant was convicted of criminal attempt to commit rape of a child and
aggravated sexual battery. Rape of a child is the unlawful sexual penetration of a victim
by the defendant or the defendant by a victim, if the victim is more than three years of
age but less than thirteen years of age. Tenn. Code Ann. § 39-13-522(a). “Sexual
penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person's body or of any object into the genital
or anal openings of the victim's, the defendant's, or any other person's body, but emission
of semen is not required. Id. § 39-13-501(7). A person commits criminal attempt who,
acting with the kind of culpability otherwise required for the offense, intentionally
engages in action or causes a result that would constitute an offense, if the circumstances
surrounding the conduct were as the person believes them to be. Id. § 39-12-101(a)(1).
Aggravated sexual battery is unlawful sexual contact with a victim by the
defendant or the defendant by a victim less than thirteen years of age. Id. § 39-13-
504(a)(4). Sexual contact, in the relevant part is “the intentional touching of the victim's .
. . intimate parts, or the intentional touching of the clothing covering the immediate area
of the victim's . . . intimate parts, if that intentional touching can be reasonably construed
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as being for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6) (2010)
(amended 2013). “Intimate parts” includes “semen, vaginal fluid, the primary genital
area, groin, inner thigh, buttock or breast of a human being[.]” Id. at (2).
The State provided the following proof at trial. First, the State provided
uncontested testimony that the victim was six years old at the time of the abuse. Second,
the State presented testimony that the defendant digitally penetrated the victim while the
defendant and the victim were in bed together watching television. The State pinpointed
December as the month in which the abuse occurred with the victim’s testimony,
supported by her memory of seeing her grandparents in Long Island for Christmas.
Based on this testimony, the State provided evidence to satisfy the elements of offenses
for which the defendant was convicted. The defendant had unlawful sexual contact with
a six year old by attempting to digitally penetrate her. We, therefore, find the evidence
sufficient to sustain the jury’s verdict.
The defendant argues there is insufficient evidence because the jury returned the
following question: “It is unclear whether . . . the . . . touching that occurred happened
multiple times from [January] 2010 to [December] 2010 or only once. Can you clarify?”
The defendant theorizes that the proof from the State must not have been sufficiently
clear if the triers of fact were unable to determine if it was one allegation or several.
Therefore, the defendant argues there was not sufficient evidence to sustain the jury’s
verdict. We do not find this argument persuasive.
Procedurally, the defendant’s argument fails because he cites no law in support of
his claim that a question by the jury creates a presumption by this Court that the evidence
submitted at trial was insufficient to support the verdict. As a result, the argument is
waived. Tenn. R. App. P. 27(a)(7)(A) (requiring an argument to set forth: “the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record . . . relied on”). Ultimately, however,
a question by a jury for a clarification does not create a presumption of insufficient
evidence. Cf. State v. Cravens, No. 03C01-9309-CR-00319, 1994 WL 444623, at *3
(Tenn. Crim. App. Aug. 16, 1994) (determining there was no error in recharging the jury
after the jury requested a clarification). Assuming, arguendo, the clarification request did
raise such a presumption, as noted before, the State’s proof was sufficient to support the
jury’s verdict.
The State argues the defendant’s argument is not a sufficiency claim but instead is
an election of offenses claim. On consideration, we find the State properly elected in this
case. The State narrowed the jury’s consideration to the December abuse. However, in
child sexual abuse cases, “the [S]tate is not required to identify the particular date of the
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chosen offense” and “a particular offense can often be identified without a date.” State v.
Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). The prosecutor may ask the child victim “to
describe unique surroundings or circumstances that help to identify an incident,” which
may include “identify[ing] an assault with reference to a meaningful event in [the child’s]
life, such as the beginning of school, a birthday, or a relative’s visit.” Id.
The direct examination by the State focused on the particulars of the December
abuse. The victim not only testified to the acts of the defendant in December, but also the
design of the comforter on the bed at the time; what she was watching on television; and
her Christmas trip to see her grandparents in Long Island. While it can be inferred from
the testimony that this abuse was not isolated to December, the State satisfied its burden
to sufficiently narrow the jury’s review of the abuse that occurred on a specific day in
December. We conclude the victim’s testimony sufficient to sustain the verdict. See
Shelton, 851 S.W.2d at 137. Therefore, the defendant is not entitled to relief.
B. Right to Cross-Examination
The defendant argues that forbidding questions about the results of the DCS
polygraph examination concerning the prior allegation violated his right to cross-
examination and his right to confront his accuser. The State argues that this restriction
was proper, and it did not constrain the defendant’s ability to cross-examine M.K.
regarding her decision to remain in the marriage after the prior DCS investigation.
Additionally, the State argues that to the extent there may have been a restriction, it was
harmless error. After review, we agree with the State.
We need not address whether the polygraph results in of themselves are
admissible. It is settled law that polygraph evidence is inadmissible. State v. Damron,
151 S.W.3d 510, 515-16 (Tenn. 2004). To avoid exclusion, the defendant asserts the
polygraph examination was not offered to prove the truth of the matter asserted. The
defendant argues that his motive for asking M.K. about the results of his DCS polygraph
examination was to impeach M.K. We agree a defendant has the right to cross-examine
witnesses to impeach their credibility or to establish that the witnesses are biased. State
v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994). However, the defendant was not denied this
right.
The defendant cites two cases in support of his claim: Ferguson v. United States,
329 F.2d 923 (10th Cir. 1964) and State v. Howell, 868 S.W.2d 238 (Tenn. 1993). While
these cases do address a defendant’s right to confront his accuser, we do not find them
applicable to the instant case. These cases indicate that an outright denial of a
defendant’s attempt to impeach a witness violates the Sixth Amendment; however, the
trial court did not deny the defendant that opportunity. The defendant wished to show
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that M.K. did not truthfully believe he was abusing his daughter and that M.K. fabricated
the allegations to gain an advantage during the divorce. If, the defendant argues, M.K.
truly believed he was abusing his daughter then she would not have remained in the
marriage.
While the trial court did not allow specific questions about the polygraph, the
defendant was allowed to, and did, question M.K. on her decision to remain in the
marriage after the prior accusations were reviewed by DCS. On cross-examination M.K.
was asked why she stayed with the defendant; she responded that it was because the
allegations were unfounded. If the defendant failed the polygraph but then had been
cleared by DCS, we agree there might have been some impeachment value in allowing
the polygraph results. But the polygraph results were consistent with the DCS findings.
The defendant was permitted to “liberally” pursue their theory on cross-examination even
considering the exclusion of the polygraph results. See Johnson v. State, 477 S.W.2d
221, 223 (Tenn. Crim. App. 1971). Therefore the trial court did not abuse its discretion
in excluding the polygraph results. See id.
While we do not agree the defendant’s ability to liberally cross-examine the
witness was infringed, to the extent it may have been, this constitutes harmless error. A
violation of a right to cross-examination has been characterized as a trial error which is
subject to the harmless error doctrine. Momon v. State, 18 S.W.3d 152, 166 (Tenn.
1999), on reh’g (Mar. 30, 2000). “Harmless error review looks . . . to the basis on which
the jury actually rested its verdict.” Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).
[C]ourts often identify certain factors to aid in discerning the actual
basis on which a jury rested its verdict. For example, in [State v. Howell,
868 S.W.2d 238, 253 (Tenn. 1993)], this Court stated that a reviewing court
determining whether the denial of effective cross-examination is harmless
beyond a reasonable doubt should consider the following factors: (1) the
importance of the witness’s testimony in the prosecution’s case; (2) the
cumulative nature of the testimony; (3) the presence or absence of evidence
corroborating or contradicting the witness on material points; (4) the extent
of cross-examination otherwise permitted; and (5) the overall strength of
the prosecution’s case.
See Howell, 868 S.W.2d 238, 253 (Tenn. 1993) (citing Delaware v. Van Arsdall, 475
U.S. 673, 685-86 (1986)). While M.K.’s testimony was critical to the prosecution’s case,
the consistency of the polygraph results with the DCS’s conclusion points to the
polygraph evidence as cumulative and redundant. To the extent the defendant wished to
know why M.K. stayed in the marriage after the DCS investigation, she stated it was
because she believed the defendant had not abused the victim at that time. She went on
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to clarify though that the circumstances surrounding the December abuse were very
different from the prior accusation. A reasonable jury could conclude that the facts
surrounding the December abuse were sufficiently different from the facts surrounding
the prior accusation to support the defendant’s conviction. Therefore, the defendant is
not entitled to relief.
C. Consecutive Sentencing
We next review the defendant’s allegation that the trial court erred in ordering his
sentence to be served consecutively with his prior sentence. This Court reviews within-
range sentences imposed by the trial court under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The
party appealing a sentence bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Further, in order to
comply with the Sentencing Act, the trial court must state on the record the statutory
factors it considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-
210(e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons
for imposing a particular sentence, however, should not negate the presumption [of
reasonableness].” Bise, 380 S.W.3d at 705-06. Thus, a sentence imposed by a trial court
“should be upheld so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10; State v. Pollard, 432 S.W.3d 851, 859-60
(Tenn. 2013) (applying the abuse of discretion standard with a presumption of
reasonableness to consecutive sentencing).
It is well settled that the trial court “may order sentences to run consecutively if it
finds by a preponderance of the evidence that one or more of the statutory criteria exists.”
State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Here, the trial court found
the statutory criteria existed in the record to warrant consecutive sentencing.
Specifically, “[t]he defendant [was] convicted of two (2) or more statutory offenses
involving sexual abuse of a minor.” Tenn. Code Ann. § 40-35-115(b)(5). The record
supports the trial court’s imposition of consecutive terms.
The trial court outlined its review of the record in accordance with State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995). First, the trial court looked at the relationship
between the defendant and his victims. The trial court stated it was “disturbing to the
[c]ourt that the [d]efendant would do this to a child . . . to which he was brought into
contact with as a result of the friendship [the victim] had . . . with another, and then that
likewise, the same act would . . . occur on his own child . . .” Second, the trial court
discussed the extent of the residual physical and mental damage to the victim stating it
was
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[P]articularly concerning to the court, the statements that [the victim] made
in testimony that she just wanted to know that her father loved her. [That
is] all she wanted. And I find that . . . is . . . residual physical and mental
damage to the victim in this case to have to deal with the fact that one’s
own parent would do this, and then to articulate that the issue that remains
is [the] question about whether the parent loves her.
Upon review, we conclude the trial court properly considered the factors in section 40-
35-115(b)(5) and did not abuse its discretion by imposing consecutive terms.
The defendant also argues that the State chose to pursue the case against the
victim’s friend first because the lack of a special relationship in the first case increased
the likelihood of consecutive sentencing in the instant case. The defendant argues this
tactic “puts too much power in the executive branch.” However, the defendant has failed
to cite any applicable law in support of his claim. We, therefore, deem this argument
waived. See Tenn. R. App. P. 27. Courts have routinely held that the failure to make
appropriate references to the record and to cite relevant authority in the argument section
of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).
However, even if we were to take as true the assertion that the State chose to try
the cases in that order to ensure enhancement, we conclude that is a proper exercise of
prosecutorial discretion. Cf. State v. Culbreath, 30 S.W.3d 309, 313 (Tenn. 2000). A
District Attorney General is an elected constitutional officer whose function is to
prosecute criminal offenses in his or her circuit or district. Tenn. Const. art. VI, § 5;
Ramsey v. Town of Oliver Springs, 998 S.W.2d 207, 209 (Tenn. 1999). The District
Attorney General “[s]hall prosecute in the courts of the district all violations of the state
criminal statutes and perform all prosecutorial functions attendant thereto . . . .” Tenn.
Code Ann. § 8-7-103(1). The prosecutor’s discretion to seek a warrant, presentment,
information, or indictment is extremely broad and subject only to certain constitutional
restraints. Ramsey, 998 S.W.2d at 209. The State acted within its discretion; therefore,
the defendant is not entitled to relief.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgments of
the trial court.
____________________________________
J. ROSS DYER, JUDGE
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