State of Tennessee v. William Pillars

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 9, 2016
STATE OF TENNESSEE v. WILLIAM PILLARS
Appeal from the Circuit Court for Franklin County
No. 20449 J. Curtis Smith, Judge
No. M2015-01032-CCA-R3-CD – Filed April 7, 2016
The defendant, William Pillars, appeals his Franklin County Circuit Court jury
convictions of rape of a child and aggravated sexual battery, claiming that the evidence
was insufficient to support his convictions, that the trial court erred by improperly
admitting and excluding certain evidence, that the trial court erred by admitting into
evidence the defendant‟s prior convictions, and that the sentence imposed was excessive.
Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT L. HOLLOWAY, JR., JJ., joined.
B. Jeffrey Harmon, District Public Defender, and Kandi Nunley, Assistant District Public
Defender, for the appellant, William Pillars.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; J. Michael Taylor, District Attorney General; and Steve Blount,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In November 2012, the Franklin County Circuit Court grand jury charged
the defendant with three counts of rape of a child and one count of aggravated sexual
battery. The trial court conducted a jury trial in November 2013.
The State‟s proof at trial showed that the victim, M.C.,1 was 10 years old
and in the fourth grade at the time of trial. When the victim was in Kindergarten, she
1
It is the policy of this court to refer to minors by initials.
lived in a three-bedroom mobile home with her mother, her infant sister, and her
stepfather, the defendant. The victim recalled that the defendant engaged in “bad
touch[ing]” with her on several occasions when the victim‟s mother was not at home. On
one such occasion, the victim and the defendant were on the bed in the master bedroom.
The defendant removed his shirt and pushed his shorts and underwear below his knees,
and the victim removed her clothing as well. The defendant told the victim “that [she]
was pretty.” The defendant then touched the victim‟s chest with “[h]is mouth, his hand
and his boy part” and touched her “girl part,” which she described as her vagina, with his
tongue. The victim drew a picture of the defendant‟s “boy part,” which was entered into
evidence and resembled a penis, and the victim described the defendant‟s penis as
“bec[oming] hard” and having hair.
The victim testified about another occasion, on which the defendant rubbed
her vagina with both his fingers and his penis “[o]n the inside” of her vagina. The victim
stated that it felt “[n]asty” when the defendant did these things to her.
When the victim was in the second grade, the family moved to a duplex.
The victim recalled an occasion in the master bedroom of the duplex when the defendant
again pushed his shorts and underwear below his knees and the victim removed her
clothing. The defendant touched the victim‟s “chest and [her] girl part” with his “mouth
and his tongue, his hand and his boy part.” On still another occasion at the duplex, the
defendant told the victim to touch his “boy part” with her hand and her mouth. The
victim testified that when she touched the defendant‟s penis, “[i]t became hard,” and that
“[l]iquid came out of it” onto a towel the defendant had brought to the bed with him.
The victim testified that she never told her mother about the abuse because
she feared that her mother “wouldn‟t do anything about it” because her mother “really
never listened to” her. The vicitm was also afraid to tell her biological father because “it
was embarrassing and [she] didn‟t think [she] should talk to him about this kind of stuff.”
The victim eventually informed her counselor, Jennifer Loh, about the abuse after the
victim‟s father gained custody of her on July 31, 2012.
On cross-examination, the victim stated that “[n]othing” went inside her
body during the episodes of abuse. On redirect examination, the victim clarified that, on
the occasions when the defendant touched his tongue and fingers to her vagina, the
defendant “moved [his tongue and hand] around” and that it felt like the defendant‟s hand
and penis “[w]ent inside” her vagina.
-2-
The victim‟s father, S.S.C.,2 testified that he and the victim‟s mother
divorced when the victim was less than one year old. In the summer of 2012, the
victim‟s mother “[a]bandoned” the victim and her sister and moved out of the county.
S.S.C. learned of this when someone from the victim‟s school contacted him to pick up
the victim. S.S.C. gained custody of the victim at that time and made arrangements for
her to speak with a counselor to address any abandonment issues. Following one of the
early counseling sessions, S.S.C. had a conversation with Ms. Loh, which resulted in his
contacting the Franklin County Sheriff‟s Department (“FCSD”). Prior to the victim‟s
counseling sessions with Ms. Loh, S.S.C. had been completely unaware of any
allegations of sexual abuse.
The victim‟s mother, N.L.P., divorced S.S.C. in 2004 and married B.L.
thereafter, divorcing him in 2007. N.L.P. met the defendant online in 2007 and married
him in 2008. During the time she was married to the defendant, N.L.P. would often leave
the victim alone with him while she was at work.
In the summer of 2012, N.L.P. left home to undergo treatment for bipolar
disorder. Prior to September of 2012, N.L.P. had no knowledge of the victim‟s
allegations of sexual abuse at the hands of the defendant. On cross-examination, N.L.P.
confirmed that she had obtained a divorce from the defendant in the summer of 2013.
Jennifer Loh, a private therapist and certified counselor, testified that she
began meeting with the victim in August of 2012. Ms. Loh recalled that S.S.C. had
arranged the counseling sessions because S.S.C.‟s “sister had died and [the victim] was
transit[ion]ing from living with mom to dad.” At the end of her second session with the
victim, the following exchange occurred:
[The victim] looked at me and asked if anything she told me
would be private, if I had to tell dad, and I explained it to her
that if it was something really bad I had to tell dad, and then
on the next visit she disclosed being molested by [the
defendant].
At the beginning of the third session, Ms. Loh brought out dolls to use as play therapy.
Using the dolls, the victim reenacted “being at [the defendant‟s] house in his bedroom
and the things that [the defendant] did to her.” Following the session, Ms. Loh met with
S.S.C. and disclosed the abuse to him. According to Ms. Loh, “[i]t was very apparent”
that S.S.C. was unaware of the abuse until she told him. Ms. Loh then contacted the
2
To protect the anonymity of the minor victim, we will refer to her relatives by their initials.
-3-
Department of Children‟s Services (“DCS”), and S.S.C. contacted the sheriff‟s
department.
FCSD Investigator George Dyer began investigating the allegations of
sexual abuse after speaking with S.S.C. He observed the victim‟s interview with a DCS
case worker, and he later spoke with the defendant over the telephone, advising him that
“some allegations had been made” and inviting him to come to the sheriff‟s department to
speak with him. Investigator Dyer did not inform the defendant of the nature of the
allegations.
When the defendant arrived for his interview at the sheriff‟s department on
September 11, 2012, he brought “some paperwork” with him. Investigator Dyer
provided the defendant with his Miranda warnings, and the defendant signed a waiver of
his rights and agreed to speak with Investigator Dyer. The defendant then handed the
investigator a three-page, typewritten letter, which was entered into evidence and stated,
in pertinent part, as follows:
I never did anything that I saw as molestation. Yes I
have seen her naked many times sense [sic] I knew her.
Washed her hair while she was in a bath several times at her
mother‟s request while she didn‟t feel good. Put lotion on her
back after a bath/shower before at her request because she
couldn‟t reach it. She either had her panties or PJs on or a
towel on. The last time I seen her with out cloths [sic] was on
my birthday because she came to visit. She and [her sister]
were in the pool and when she came in she started to freeze
due to how cold I keep the place. In my room she stood stiff
due to how cold she was. She lifted her arms and asked me to
help get the wet stuff off. I pulled her shirt off and she
pushed her shorts down half way without bending over and I
took them rest of the way and then she put a dry towel around
her and I got her dry cloths [sic] and she shut the door and got
dressed. . . .
Now yes she has seen me naked also. She has walked
in while I was dressing before. She has opened the shower
Curtin [sic] while I was in it and saw me washing. Not sure
why she did and it was more than once. Nothing I really
wanted to speak about because someone might think
something like they do now. One time she came in the
bathroom while I was showering and looked in at me and I
-4-
was standing there with my eyes closed masturbating and
enjoying the moment. Not sure how long she was standing
there but she saw me [ejaculate] and that is when I saw her
standing there watching. She shut that Curtin [sic] and left
after I saw her. I asked her what did she want after words
[sic] and she said she had a question but forgot it. Told her
next time holler at me. Didn‟t want to talk about what she
saw because I didn‟t want to have that conversation. Kept it
between us because I didn‟t want her in trouble for coming in
because I always tried to protect her. She had a thing about
lotion. She would want to lotion my feet and legs sometimes
after she did her self. She even told her mom once after she
did it because neither of us thought anything of it. Well at
least I didn‟t. There was one time she was going up my leg
and I think slipped because her hand went strait [sic] up my
shorts fast and her hand ended up with my bare privates in her
hand for a second. I was surprised and she acted as if she was
but it took her a second before she released it and pulled her
hand back. I figured it was because it caught her off guard so
much she froze for a moment. I slid back in my seat in shock
when it happened. She laughed and said she slipped and
asked if I was ok. I said yes and she went to a foot and ended
there. We didn‟t talk about it. I guess we should of [sic].
There was random times she was showing herself to
me. Once on Vine st. [sic] she walked up and lifted her night
gown and said her privates were burning and was showing me
with her hands down there and holding it open. I got up and
got her some medicine we had for that and asked if her mom
showed her how to put it on and said said yes and went to the
bathroom and did it. Let‟s just say she never had a problem
being nude around me from the beginning to this year.
. . . . Once in our Belvidere home she was hugging me
with her legs wrapped around my waist and I was holding her
up. She started to slide down but I didn‟t foresee what would
happen. As she slid over my waist my shorts came down. I
felt them moving but could [sic] do anything because I was
holding her up. As she landed on the ground so did my
shorts. Her face was just inches from my penis until I stepped
back and pulled them back up. It was like that for a brief
-5-
second. I even told her I was sorry that happened and I
couldn‟t stop it unless I dropped her on the wood floor. She
told me not to worry about it and it was ok and wanted to
jump on me again but I didn‟t. . . .
....
Back with another memory that I forgot all about. I
think she was 7 and it was here where I live now, that‟s what
I‟m seeing in my mind. We were on the floor wrestling and
she was sitting on my chest. Then she moved forward
pushing her crotch against my face (yes dressed) and moved a
couple of times like a grind before I pushed her off. She just
laughed about it. I remembered it bothered me because she
did something that she saw or did before I felt. I debated on
calling her moms attention to it because it wasn‟t right. I
knew I had no proof and I could be wrong and she could just
have thought it was funny and that was all it was. But now I
do remember that moment and how unsettling it was.
With this evidence, the State rested. Following a Momon colloquy and the
trial court‟s denial of the defendant‟s motion for judgments of acquittal, the defendant
elected to testify.
The defendant admitted that he had a prior conviction of larceny and an
unspecified drug conviction. With respect to his care of the victim during his marriage to
N.L.P., the defendant stated that the victim had asked him to assist her with washing her
hair, with which he complied, but the defendant denied engaging in any sort of
inappropriate touching while the victim was bathing. The defendant also stated that he
would assist the victim in applying lotion to her back.
In early September of 2012, N.L.P. informed the defendant that the victim
was accusing him of “molestation.” At that point, the defendant prepared his typewritten
letter. In response to the inquiry of his motivation to write the letter, the defendant
testified as follows:
I wanted to show that throughout our life and this is five year
span. It isn‟t like what was read in here was like a month of
incidents. We‟re talking a five year span, and I wanted to
show that there was no way things that happened in our life
could be classified. Now, I never imagined the actual claims
-6-
were totally different than what I was talking about in here,
because they are against me, but I went in there because when
I went in there to see the detective I never foresaw this. I
never seen anything legally like this. My only thought was I
wanted my child, and this is what was stopping me. I didn‟t
see any actual legal type of stuff like this coming from it,
because my whole thought was just go in there and try to
show him how with [N.L.P.] leaving and the timing and
everything, this just happens to come up with the counselor
she just met, and just the time alone, I was trying to show
them there is no way through our life that this kind of stuff
could have happened, which I didn‟t know what kind of stuff
he was talking about.
The defendant testified that the segment in the letter regarding his
“masturbating in the shower” was false, explaining that he had included that part “to
know if what [the detective] was going to tell me was going to be true.” The defendant
believed that if the detective read the entire letter and responded, “oh, yeah, we know all
of this,” then the defendant would know the detective was lying. The defendant
categorically denied engaging in any sexual contact with the victim.
Based on this evidence, the jury convicted the defendant as charged of three
counts of rape of a child and one count of aggravated sexual battery. Following a
sentencing hearing, the trial court sentenced the defendant as a standard offender to a
term of 12 years‟ incarceration for the aggravated sexual battery conviction and 25 years‟
incarceration for each of the three child rape convictions, all to be served at 100 percent
by operation of law. The court ordered the aggravated sexual battery conviction and the
first two child rape convictions to be served consecutively to one another and ordered that
the third child rape conviction be served concurrently with the second child rape
conviction but consecutively to the other two convictions, for a total effective sentence of
62 years.
Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the evidence is
insufficient to support his convictions, that the trial court improperly excluded evidence
on the basis of hearsay, that the trial court erred by permitting the State to question the
defendant about his religious beliefs, that the trial court improperly allowed sexual abuse
testimony under the fresh complaint doctrine, that the trial court erred by admitting into
evidence the defendant‟s prior convictions, and that the sentence imposed was excessive.
We will address each issue in turn.
-7-
I. Sufficiency
The defendant contends that the evidence is insufficient to support his
convictions of rape of a child and aggravated sexual battery. We disagree.
We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
As charged in this case, “[r]ape of a child is the unlawful sexual penetration
of a victim by the defendant or the defendant by a victim” if the victim is between the
ages of three and 13. T.C.A. § 39-13-522(a). “Sexual penetration” is defined as “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). Aggravated sexual battery “is unlawful sexual contact
with a victim by the defendant or the defendant by a victim” when “[t]he victim is less
than thirteen (13) years of age.” T.C.A. § 39-13-504(a)(4). “Sexual contact” is defined
as including “the intentional touching of the victim‟s, the defendant‟s, or any other
person‟s intimate parts, or the intentional touching of the clothing covering the immediate
area of the victim‟s, the defendant‟s, or any other person‟s intimate parts, if that
intentional touching can be reasonably construed as being for the purpose of sexual
arousal or gratification.” Id. § 39-13-501(6). “„Intimate parts‟ includes the primary
genital area, groin, inner thigh, buttock or breast of a human being.” Id. § 39-13-501(2).
In the instant case, the proof at trial established that, while living in the
mobile home, the defendant touched the naked victim‟s chest with his mouth, hand, and
-8-
penis and that he touched her vagina with his tongue. This sexual contact is clearly
sufficient to establish the defendant‟s conviction of aggravated sexual battery. With
respect to the convictions of child rape, the victim testified that, while living at the
mobile home, the defendant touched her vagina “[o]n the inside” with his fingers and
tongue, which sufficiently satisfies the requirement of sexual penetration. Likewise, the
victim testified to two separate incidents that occurred at the duplex: one in which the
defendant touched her vagina with his tongue, hand, and penis, and one in which the
defendant forced the victim to engage in fellatio. On redirect examination, the victim
clarified that, on the occasions when the defendant touched his tongue and fingers to her
vagina, the defendant “moved [his tongue and hand] around” and that it felt like the
defendant‟s hand and penis “[w]ent inside” her vagina. Again, this testimony cogently
established the defendant‟s sexual penetration of the victim. Although the defendant
denied all abuse and questioned the victim‟s conflicting testimony about penetration,
such matters of witness credibility and evidentiary weight are within the exclusive
province of the trier of fact, and this court will not reweigh such evidence. See Dorantes,
331 S.W.3d at 379.
Viewing this evidence in the light most favorable to the prosecution, we
find that the evidence adduced at trial more than sufficiently established the defendant‟s
convictions of aggravated sexual battery and rape of a child.
II. Hearsay
Next, the defendant contends that the trial court erred by sustaining the
State‟s objection to certain hearsay. During the cross-examination of Investigator Dyer,
defense counsel sought to inquire whether N.L.P. had told the defendant about the
allegations of sexual abuse, and the State objected on hearsay grounds. The court
sustained the objection on the basis of hearsay. On appeal, the defendant argues that this
decision constitutes reversible error.
The defendant‟s argument on this issue, however, contains no citation to
authority or legal argument. “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.”
Tenn. R. Ct. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7) (stating that the
appellant‟s brief must contain an argument “setting forth . . . the contentions of the
appellant with respect to the issues presented, and the reasons therefor . . . with citations
to the authorities . . . relied on”). Because the defendant failed to comply with these
rules, he has waived our consideration of this issue.
-9-
III. Religious Beliefs
The defendant next asserts that the trial court erred by permitting the State
to question him about his religious beliefs, in violation of Tennessee Rules of Evidence
403 and 610. We disagree.
Prior to trial, the defendant filed a motion in limine, seeking to prevent the
State from introducing into evidence “references to angels or demons or the like in letters
allegedly written by the [d]efendant.” At the hearing on the motion, the State informed
the trial court that it intended to cross-examine the defendant at trial – if the defendant
chose to testify – about statements he had made in five separate letters about battling
“demonic oppression.” The trial court reserved ruling on the admissibility of the letters
until trial.
When the defendant indicated his intention to testify following the close of
the State‟s proof at trial, the trial court revisited the issue. The State argued that it should
be allowed to question the defendant about whether alleged demonic possession caused
him to sexually abuse the victim. The defendant then objected on the basis of both
Tennessee Rule of Evidence 610 and 403, contending that the defendant‟s religious
beliefs were inadmissible to attack his credibility and that, in any event, the probative
value of such evidence was substantially outweighed by the danger of unfair prejudice.
The trial court found that Rule 610 was not applicable and, following extensive analysis
of the letters, ruled that the State could inquire about specific statements in the letters that
the court deemed probative.
On cross-examination, the State chose not to question the defendant about
any of the specific statements in his letters. The State did, however, question the
defendant as follows:
Q: Mr. Pillars, are you a religious man?
A: Yes, I am, sir.
Q: Did you get God in November of 2012, when you were
indicted for this charge, or these charges that we‟re
here now?
A: No, I did not get God. I stopped running from God.
Q: Stopped running from God. Did you have urges
before you accepted God?
- 10 -
A: You‟d have to define the word urges.
Q: Sexual urges.
A: I was married and I produced a child.
[Defense Counsel]: Your Honor, I‟m objecting. It‟s still a
vague question.
A: Yes.
[Defense Counsel]: He doesn‟t say what type of sexual
urges.
[Prosecutor]: That will be my next question.
The Court: All right.
Q: Did you have sexual urges that you put away once you
got God in November of 2012?
[Defense Counsel]: Again, the same objection, Your Honor.
He‟s not saying what type of sexual urges.
[Prosecutor]: That‟s the next question.
The Court: Overruled. Let him ask.
Q: I‟m going to ask it one more time. Sir, did you have
sexual urges that went away, that you sent away when
you got God in November of 2012?
[Defense Counsel]: Your Honor, once again, same objection.
[Prosecutor]: Judge, I‟ll ask it again. The next question is
specific. This is a general question.
[Defense Counsel]: Well, he can‟t answer the question.
The Court: I‟ve overruled your objection, Counsel.
- 11 -
Q: Answer the question. I‟m not going to ask it again.
Surely you‟ve heard it, it‟s been the third time it‟s been
overruled.
A: Due to the fact that I was set free from my wife and I
wasn‟t having another woman at this moment, yes, sir,
because in my belief that is wrong to be lusting after a
woman when you‟re not with a woman in marriage, so,
yes, sir.
The defendant argues on appeal that the trial court “committed reversible
error by allowing the State to question him in regards to any matter of a religious nature
when they were irrelevant and prejudicial in nature, in violation of Tennessee Rules of
Evidence 403 and 610.” The record is clear, however, that the defendant objected to this
line of “religious” questioning on the basis that it was vague, not that the questions asked
were violative of Rules 610 or 403. “A party cannot assert a new or different theory to
support the objection in the motion for a new trial or in the appellate court.” State v.
Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994); see also State v. Aucoin, 756
S.W.2d 705, 715 (Tenn. Crim. App. 1988) (holding that a party cannot object on one
ground at trial and assert new basis on appeal). In any event, we determine that these
minor references to God and religion did not inure to the defendant‟s prejudice.
IV. Fresh Complaint
Although the argument is somewhat convoluted, it appears that the
defendant contends that the trial court erred by permitting the victim to testify on direct
examination that she told her counselor, Ms. Loh, about the sexual abuse. The defendant
bases his argument on the theory that this testimony was inadmissible under the fresh
complaint doctrine.
The fresh complaint doctrine permits the fact, but not the details, of a
complaint of rape in the case of an adult victim to be admitted during the State‟s case-in-
chief. State v. Kendricks, 891 S.W.2d 597, 603 (Tenn. 1994). In child rape cases,
however, neither the fact nor the details of the complaint may be admitted in the State‟s
case-in-chief, unless admissible under a hearsay exception or to corroborate a prior
consistent statement. State v. Livingston, 907 S.W.2d 392, 395 (Tenn. 1995).
In the instant case, the defendant argued prior to trial that the State should
not be permitted to present the testimony of Ms. Loh regarding the victim‟s alleged
disclosures of sexual abuse. The trial court agreed, finding that “any reference by Ms.
- 12 -
Loh . . . of sexual abuse would be a conclusion based on comments made to her,
statements made to her, by the alleged victim, so I believe that that is – would be
essentially fresh complaint, which . . . is not admissible.” The trial court then went on to
say that “if the child‟s credibility is attacked then the [S]tate can come back and offer
bolstering testimony.”
On appeal, however, the defendant contends that the trial court erred by
permitting the victim to testify on direct examination that she disclosed the sexual abuse
to Ms. Loh. The defendant did not object to this particular testimony at or prior to trial.
It is well-established that a litigant may not advance one theory for inadmissibility of
evidence at trial and another on appeal. See, e.g., Adkisson, 899 S.W.2d at 635; Aucoin,
756 S.W.2d at 715. Furthermore, the defendant‟s failure to lodge a contemporaneous
objection to the victim‟s testimony results in a waiver of plenary review of this issue. See
Tenn. R. Evid. 103 (“Error may not be predicated upon a ruling which admits . . .
evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is
one admitting evidence, a timely objection or motion to strike appears of record, stating
the specific ground of objection . . . .”); Tenn. R. App. P. 36(a) (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.
1988) (waiver applies when the defendant fails to make a contemporaneous objection);
State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987). In consequence, we
must conclude that this issue has been waived.
V. Prior Convictions
Next, the defendant argues that the trial court erred by admitting into
evidence the defendant‟s prior convictions of larceny and drug possession.
Tennessee Rule of Evidence 609 provides, in pertinent part:
(a) General Rule. For the purpose of attacking the credibility
of a witness, evidence that the witness has been convicted of
a crime may be admitted if the following procedures and
conditions are satisfied:
....
(2) The crime must be punishable by death or imprisonment
in excess of one year under the law under which the witness
- 13 -
was convicted or, if not so punishable, the crime must have
involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal
prosecution, the State must give the accused reasonable
written notice of the impeaching conviction before trial, and
the court upon request must determine that the conviction‟s
probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues. The court may rule on the
admissibility of such proof prior to the trial but in any event
shall rule prior to the testimony of the accused. If the court
makes a final determination that such proof is admissible for
impeachment purposes, the accused need not actually testify
at the trial to later challenge the propriety of the
determination.
(b) Time Limit. Evidence of a conviction under this rule is
not admissible if a period of more than ten years has elapsed
between the date of release from confinement and
commencement of the action or prosecution; if the witness
was not confined, the ten-year period is measured from the
date of conviction rather than release. Evidence of a
conviction not qualifying under the preceding sentence is
admissible if the proponent gives to the adverse party
sufficient advance notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest
the use of such evidence and the court determines in the
interests of justice that the probative value of the conviction,
supported by specific facts and circumstances, substantially
outweighs its prejudicial effect.
Tenn. R. Evid. 609(a)-(b).
Prior to trial in the instant case, the State filed a notice of intent to use the
defendant‟s 1989 larceny conviction and 2003 felony drug possession conviction for
impeachment purposes if the defendant were to testify. The trial court conducted a
hearing on November 5, 2013. The defendant argued that the larceny conviction was
stale, which would require the court, under Rule 609(b), to determine whether the
probative value of the conviction outweighed any prejudicial effect. The State responded
that, because larceny is a crime involving dishonesty, its admission was probative of the
defendant‟s credibility. With respect to the drug conviction, the defendant cited State v.
- 14 -
Waller, 118 S.W.3d 368 (Tenn. 2003), for the proposition that drug convictions do not
involve dishonesty and are accordingly “only slightly probative” of the defendant‟s
credibility. Waller, 118 S.W.3d at 372-73. The State argued that the felony drug
conviction was admissible under Rule 609(a)(2). At the conclusion of the parties‟
arguments, the trial court simply stated, “[Y]ou have two cases, not one, and a long hiatus
of nothing, so I‟m going to allow both of those [convictions] in.”
Without question, the defendant‟s 1989 larceny conviction was beyond the
10-year time limit contemplated by Rule 609(b), but in any event, the trial court failed to
make an appropriate determination that the probative value of either conviction
outweighed its prejudicial impact. See Tenn. R. Evid. 609(a)(3), (b). As a result, we
hold that the trial court erred by admitting these prior convictions into evidence at trial.
However, given the overwhelming evidence of the defendant‟s guilt, any error
occasioned by the admission of these convictions was harmless. See Tenn. R. App. P.
36(b) (“A final judgment from which relief is available and otherwise appropriate shall
not be set aside 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.”).
VI. Sentencing
Finally, the defendant contends that the trial court erred “by imposing a
sentence that was both excessive and improperly applied.” Again, we disagree.
Our standard of review of the trial court‟s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to „place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence 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.
With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
- 15 -
sentences, “giving deference to the trial court‟s exercise of its discretionary authority to
impose consecutive sentences if it 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. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013).
Following a sentencing hearing, the trial court took the matter under
advisement and later issued a comprehensive sentencing memorandum, in which the
court based its decision on a consideration of all required factors. The court found no
mitigating factors and only one enhancement factor to be applicable: that the defendant
abused a position of public or private trust. See T.C.A. § 40-35-114(14). The trial court
“place[d] great weight on this enhancing factor.” The court then imposed the minimum
sentence of 25 years for each of the three child rape convictions and the maximum
sentence of 12 years for the conviction of aggravated sexual battery. Because the trial
court considered all relevant principles associated with sentencing, no error attends the
imposition of these within-range sentences.
With regard to sentencing alignment, the trial court based its imposition of
partially consecutive sentencing on the fact that the defendant was convicted of two 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
. . ., 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.” See
T.C.A. § 40-35-115(b)(5). The trial court found that the defendant abused his
relationship with the victim, his stepdaughter, and referenced the length of that
relationship. In addition, the court considered the victim impact statements introduced
into evidence at the sentencing hearing, in which S.S.C. recounted the “many nights with
[the victim] screaming, crying, and hitting pillows to try to let out some of her anger” and
opined that the victim would require therapy for the rest of her life. Although the
defendant posits that the record “contained absolutely no proof that the [d]efendant was a
danger to the public” or “that he had ever made improper advances toward anyone other
than his stepdaughter,” no such findings were required under the requisite statute.
Because the trial court considered the appropriate statutory principles, we cannot say that
the court abused its discretion by ordering partially consecutive sentences.
Conclusion
Based upon the foregoing analysis, the judgments of the trial court are
affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
- 16 -
- 17 -