State of Tennessee v. Carlos Wilson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
June 2, 2015 Session
STATE OF TENNESSEE v. CARLOS WILSON
Appeal from the Criminal Court for Shelby County
No. 12-03231 John W. Campbell, Judge
No. W2014-01388-CCA-R3-CD - Filed September 30, 2015
A Shelby County jury convicted the Defendant of aggravated sexual battery and
especially aggravated sexual exploitation of a minor. The trial court sentenced him to an
effective sentence of twenty-one years, to be served at 100%. On appeal, the Defendant
contends that: (1) the trial court erred when it required that he be represented by counsel
at trial; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court
erred when it ordered consecutive sentences. After a thorough review of the record and
the applicable authorities, we conclude that there exists no error in the judgments of the
trial court. Accordingly, we affirm the trial court‟s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J. delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ. joined.
Andre B. Mathis (on appeal), and J. Jeffrey Lee (at trial), Memphis, Tennessee, for the
appellant, Carlos Wilson.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Douglas Gregory
Gilbert and Abby Wallace, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Facts
This case arises from interactions between the Defendant and the child of the
Defendant‟s girlfriend, B.B.1, who alleged that the Defendant began giving her
1
In order to protect the minor victim‟s privacy, we will refer to her by her initials only.
inappropriate “massages” when she was eleven. For these interactions, a Shelby County
grand jury indicted the Defendant for aggravated sexual battery and especially aggravated
sexual exploitation of a minor.
A. Pretrial
1. Motion to Suppress
Before trial, the Defendant‟s attorney, J. Jeffrey Lee, filed a motion to suppress
several videos that the State had recovered from the Defendant‟s cell phone. At the
suppression hearing, the Defendant was represented Mr. Lee. At the hearing, B.B.‟s
mother, Lavon Redmond, testified that the Defendant was her ex-boyfriend. She said that
in June 2011 she and the Defendant were friends but no longer in a romantic relationship.
The two had dated for approximately seven years and had lived together for five of those
years. Ms. Redmond testified that she received a call from someone in Florida who had
found the Defendant‟s cell phone. The phone identified Ms. Redmond‟s number as the
last person to whom a call from the cell phone was placed. She informed the caller that
she did not have an address for the Defendant, and the caller arranged to mail the phone
to Ms. Redmond.
Ms. Redmond testified that she called the Defendant and informed him that his
phone had been found and that it was being mailed to her. The Defendant insisted that
she not look at the phone before she returned it to him. Ms. Redmond said that the
Defendant was “so insistent” that it made her curious about what the Defendant did not
want her to see. When she received it, she looked through the phone and saw a video of
the Defendant caressing B.B.‟s bottom with her underwear and pants pulled down. She
heard the Defendant ask B.B. if she was uncomfortable.
Ms. Redmond said that, after seeing this video, she called the police and provided
them with the Defendant‟s cell phone.
During cross-examination, Ms. Redmond testified that the Defendant did not want
the cell phone mailed to him because he was living in a hotel. She agreed that she told
the Defendant that she would not open the phone when she received it, but she opened it
despite her promise.
Myron Lawrence, a lieutenant with the Memphis Police Department, testified and
confirmed that after he received the Defendant‟s cell phone he took it into evidence,
tagged it, and then obtained a search warrant for the phone. After obtaining the warrant,
Lieutenant Lawrence searched the phone and found an image of a man touching a child‟s
buttocks.
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The Defendant testified that he lost his cell phone on April 10, 2011, while he was
in Miami, Florida. He said that, after he realized his cell phone was missing, his friend
called the Defendant‟s cell phone. Whomever answered asked his friend inappropriate
questions and would not give back the phone. The person who took his cell phone also
posted statuses to his Facebook page speaking ill of the Defendant. The same person also
contacted the Defendant‟s older sister and at least one of the Defendant‟s friends. The
Defendant said that he reported his cell phone stolen and that he purchased a new cell
phone.
Two months later, Ms. Redmond, his ex-girlfriend, called him and asked him
about some names in his phone, so he knew that she was in possession of the phone. The
Defendant said that when Ms. Redmond brought his cell phone to him at the hotel where
he stayed, she was accompanied by three police officers. When he opened the door, he
was talking on his new cell phone. One of the officers told him to get off the phone;
another officer had his gun drawn; and the police took him into custody.
The Defendant testified that when he was in the police car one of the officers
showed him his lost cell phone. The officer asked the Defendant about the contents of
his phone, and the Defendant made a statement in response to the questioning. The
officer placed him under arrest and then went back into his hotel room. In his hotel
room, the officers found marijuana.
The Defendant‟s sister, Lastasia Wilson, testified and confirmed that Ms.
Redmond had told her facts that were consistent with Ms. Redmond‟s trial testimony.
After the hearing, the trial court denied the Defendant‟s motion to suppress. The
trial court found that Ms. Redmond was credible, based in part upon the fact that Ms.
Redmond had told Ms. Wilson the same version of events. The trial court found that the
fact that Ms. Redmond violated her promise not to look at the phone did not give rise to a
Fourth Amendment violation. Further, the trial court found there was no proof that Ms.
Redmond was acting as an agent of the State when she obtained or looked at the phone.
The trial court found that there was no Fourth Amendment violation, and it denied the
Defendant‟s motion to suppress.
2. Pro Se Representation
After the conclusion of the suppression hearing, the Defendant expressed his
desire to represent himself. The Defendant said that he had “issues as far as the search
warrant” and that he did not think that his attorney, (“Counsel”), was attacking the
warrant effectively. The trial court informed the Defendant that it was not a good idea
for the Defendant to represent himself. The trial court told him that if Counsel thought
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that some motions were not likely meritorious then Counsel likely had a sound
justification for that opinion. The Defendant said that, while there had been a motion to
suppress the video found on the cell phone, he did not believe that the search warrant
itself had been effectively attacked. He said that the search of his phone was not
constitutional.
The Defendant further contended that he felt that Counsel was not representing
him to the best of his abilities because the Defendant owed Counsel money. The trial
court informed the Defendant that Counsel did not have to proceed on a motion that
Counsel did not think was valid. The trial court offered the Defendant the opportunity to
hire new counsel. The Defendant told the trial court that he wanted to proceed pro se.
The trial court then questioned the Defendant in an effort to determine whether he
could effectively represent himself. Upon questioning, the Defendant said that he had
never studied the law and had never represented himself or any other defendant in a
criminal action. The Defendant said that he understood that he had been charged with
two Class B felonies that carried a range of punishment between eight and thirty years.
The trial court ensured that the Defendant understood that he could be sentenced
consecutively depending on his background and the presentence report. The trial court
also ensured that the Defendant understood that the trial court would not advise the
Defendant about how to try his case should the Defendant proceed pro se. The Defendant
said that he was familiar with the rules of evidence and acknowledged that he would be
required to follow the requirements of those rules. The trial court informed the
Defendant that it felt that he would be better represented by an attorney, and the
Defendant said he understood.
Based upon the Defendant‟s answers, the trial court found that the Defendant
could represent himself, and it appointed Counsel as a standby counsel.
3. Motion Hearing
The Defendant filed a motion to suppress the evidence found on his phone. At the
hearing on the motion the trial court informed the Defendant that he had not supplied the
necessary documentation to support his motion. The Defendant asked about his Fifth
Amendment right to not incriminate himself with the statements he made that officers
used to support the search warrant. The trial court informed the Defendant that the Fifth
Amendment was not relevant to the search warrant. It further stated that the trial court
had ruled on the motion to suppress in favor of the State, accrediting the testimony of the
State‟s witnesses. The trial court found that the Defendant had not laid an adequate
foundation for his motion, and it denied the motion. The Defendant informed the trial
court that his motion was actually about the statements he gave to police.
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The trial court turned to address the Defendant‟s motion to suppress his statements
to police. The court noted that, after police had seen the videos and engaged the
Defendant at the hotel, the Defendant told officers that he did make the videos but that he
did so to prove to Ms. Redmond that he was not doing anything wrong. The Defendant
told the trial court that, when he gave his statement to police, he was in custody, had not
been given Miranda warnings, and had recently had a weapon aimed at him by police.
The trial court granted the Defendant‟s request for a hearing.
At the suppression hearing on the Defendant‟s statements to the police, Officer
Jermaine Simpson, with the Memphis Police Department, testified that he was dispatched
to a complaint that came from Ms. Redmond‟s address. Upon arriving, he spoke with
her, and she informed him that the Defendant‟s phone had been mailed to her address.
She said that she had gone through the phone and had found a video of the Defendant
massaging her nude, minor daughter. Ms. Redmond showed the officer the video and
told him where to find the Defendant.
Officer Simpson testified that he and other officers accompanied Ms. Redmond to
the hotel where the Defendant was staying. She knocked on the door, the Defendant
opened the door, and the Defendant invited the officers inside to speak with him. Officer
Simpson said that no officer had a weapon drawn at this time and that he was dressed in
his police uniform.
Officer Simpson said that he entered the hotel room and informed the Defendant
that the police had been called about a video on his phone that had been mailed to Ms.
Redmond. The officer told the Defendant that a face of the man massaging could not be
seen on the video and that only a voice could be heard. The voice repeatedly asked B.B.
if he was hurting her. The Defendant admitted that it was his voice on the video
recording. He explained that he was coaching the victim in basketball and that, after
practice, her muscles were sore, so he removed her pants to massage the sore area.
Officer Simpson said that, after speaking with the Defendant in his hotel room, he
placed the Defendant in a police car. He noted that, beside the bed in the hotel room,
there was marijuana and drug paraphernalia. Officers arrested the Defendant for the
marijuana. They created a memo of what had happened and tagged the phone and turned
it into property and evidence.
During cross-examination by the Defendant, Officer Simpson testified that the
Defendant was not taken into custody when officers first arrived at the hotel. He noted
that, because the Defendant‟s face could not be seen on the video, they spoke with him to
get his side of the story. Officer Simpson agreed that, at the time the Defendant made his
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statements he was not free to leave. He said that the Defendant was, however, only
“detained” and not “in custody.” The Defendant accused Officer Simpson of lying.
At this point, the trial court informed the Defendant that he could not represent
himself. The following exchange then occurred between the trial court and the
Defendant:
[THE TRIAL COURT:] All right. Look, here‟s what we‟re going to
do. At this point in time I‟m going to be real honest with you. You can‟t
handle this. It‟s too personal. You want to interject yourself saying this is
not true. It‟s not proper in front of a jury. I‟m not going to let you
represent yourself. I‟m going to let [Counsel] represent you.
....
And all you‟re going to do is you‟re going to make a mess of things.
THE DEFENDANT: I don‟t want to make a mess of things. . . . I‟m
just saying [the officer is] making a mess of things because he‟s not telling
the truth.
THE COURT: Well here‟s the thing. [Counsel] is going to be your
attorney. You cannot handle this obviously because it‟s too emotional and
too close, you understand me? And you can‟t get up there and tell the jury
while you‟re questioning a witness he‟s not telling the truth. That‟s not
proper. A lawyer can‟t do that. You‟re not a witness. You‟re asking
questions. But you‟re making yourself a witness.
THE DEFENDANT: Your Honor, may I say something? The jury
is not here and I‟m just talking to you, Your Honor.
THE COURT: I know that. But I‟m just looking at how you‟re
acting.
THE DEFENDANT: I‟m talking to you but you heard Ms.
Redmond say she was there and she came and knocked on the door in the
suppression hearing and you credit her testimony.
THE COURT: Here‟s what we‟re going to do. I‟m going to let your
lawyer, I‟m going to let – [Counsel], you‟re now going to be handling this
matter.
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[Defendant], just have a seat. Discuss this with your attorney and
I‟ll let him ask the questions. He knows what‟s pertinent and what‟s
allowable. Have a seat, sir.
Do you want a minute, [Counsel]?
Counsel then further cross-examined Officer Simpson. Officer Simpson said that
the hotel room in which the Defendant was staying was small. He and another officer
were inside the room, and two other officers were in the doorway. He said that he spoke
with the Defendant inside the room for approximately ten minutes, during which time the
Defendant made the statements about why he had taken the video recording. The officer
then asked the Defendant if he would pull down his own daughter‟s clothing and massage
her bare bottom, and the Defendant responded that he would not. Officer Simpson
agreed that he did not have a warrant for the Defendant‟s arrest. The Defendant was
taken to a police car, and Officer Simpson showed him the video. Officer Simpson said
that, at one point, he asked the Defendant if the Defendant had a daughter, and the
Defendant responded, “Yes.”
During argument, the State informed the trial court that it was not seeking to admit
into evidence any statements made by the Defendant while he was in the police car.
The trial court ruled that the Defendant‟s statements made in the car were not
admissible. The trial court found that the Defendant was not “in custody” with regard to
the statements he made in the hotel room and that those statements were admissible.
B. Trial
Ms. Redmond testified that the victim in this case was her daughter, B.B. Ms.
Redmond recalled that she had dated the Defendant for six or seven years. The
Defendant and Ms. Redmond began dating when B.B. was seven years old. Ms.
Redmond and the victim lived in a house with the Defendant for almost three years. The
three then moved to an apartment when the victim was ten years old, and Ms. Redmond
and the victim left the apartment to live apart from the Defendant when the victim was
about twelve-and-a-half years old.
Ms. Redmond said that the victim and the Defendant had a “pretty close
relationship.” She said the Defendant took the victim to play basketball and to parks.
Ms. Redmond said that playing basketball was the most important thing in the victim‟s
life, and she said that the victim still played basketball at the time of trial. Ms. Redmond
said that the Defendant participated in the victim‟s interest in basketball. He was always
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at the victim‟s games, taught her how to dribble, and shoot, and about different exercises.
The Defendant also took the victim to the gym to practice.
Ms. Redmond recalled that her relationship with the Defendant ended in February
2011. While the two were no longer a couple, they still spoke frequently and “d[id]
things together.” The Defendant, she said, still went out of town with her and the victim
to basketball tournaments. The Defendant still sometimes took the victim to her practice.
On June 4, 2011, while she was living apart from the Defendant, the Defendant‟s
cell phone was mailed to her. Ms. Redmond explained that the Defendant had lost his
phone in Florida and someone found the phone. The person who found the phone called
Ms. Redmond because she was the last person to whom a call from the cell phone was
placed. During this phone conversation, she agreed to have the Defendant‟s cell phone
returned to her address.
Ms. Redmond said that she contacted the Defendant and told him that his cell
phone had been found and was being sent to her. The Defendant told her “[s]everal
times” not to look at his phone. He told her it was not her phone and not to look at it. He
also told her that whatever she found on the phone she “deserve[d]” to find. Ms.
Redmond said that, before this conversation, she had no intention of looking at the phone.
After the conversation, however, she looked at the phone.
Ms. Redmond testified that, on the Defendant‟s cell phone, she found a video of
the Defendant massaging B.B. with her pants down. She said that he was massaging “all
in between [B.B.‟s] legs.” Ms. Redmond said that after seeing this video she contacted
the police.
Ms. Redmond said that she was unaware that the Defendant was giving her
daughter “massages” and that he was recording these interactions. She recalled one
occasion where she did see the Defendant rubbing the victim‟s back. She said that they
were both fully clothed, so the incident did not draw her concern.
During cross-examination, Ms. Redmond testified that after she and the Defendant
broke up he remained a father figure in the victim‟s life.
Jermaine Simpson, an officer with the Memphis Police Department, testified that
Ms. Redmond had told him that the Defendant had lost his phone in Miami and that it had
been mailed to her. She went through the phone and found a video. When she asked the
victim about the video, the victim told her that these interactions had been going on for
“quite some time” and that she was afraid to tell Ms. Redmond about it. Officer Simpson
said that Ms. Redmond showed him the phone and the video, and she told him that she
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recognized the Defendant‟s voice as being the one heard throughout the video asking the
victim if he was hurting her.
Officer Simpson testified that Ms. Redmond told him that the Defendant was
staying at the InTown Suites. The officer called his supervisor, who told him to make
contact with the Defendant, and the officer asked for backup. Officer Simpson said that,
when he knocked on the door of the Defendant‟s room, the Defendant opened the door.
Officer Simpson and his partner entered the room, and two other officers remained
outside.
Officer Simpson testified that he asked the Defendant about the video, and the
Defendant acknowledged that it was his voice heard on the video. He explained to the
officer that he trained the victim in basketball. He said that, after practice, she got sore,
so he massaged her buttocks and her hamstrings.
Myron Lawrence, a lieutenant with the Memphis Police Department, testified that,
after he received information from Officer Simpson about the evidence on the phone, he
obtained a search warrant for the phone. On the Defendant‟s phone, he found video
recordings of a man massaging a child‟s buttocks. He downloaded the videos, which
were entered into evidence.
During cross-examination, Lieutenant Lawrence testified that he found several
videos and that they seemed to be from different occasions because the child‟s panties
were different colors.
B.B. testified that she was sixteen years old at the time of trial and that she was in
tenth grade in school. She said that she enjoyed playing basketball, a sport that she had
played since she was about seven years old. B.B. said that, for basketball, she would
practice and also work on her own conditioning herself for the sport. She worked with a
trainer at the gym, sometimes running track or lifting weights.
B.B. testified that she first met the Defendant when she was about nine or ten and
that he helped her with basketball training for a period of time. The two, she said, had a
father-daughter relationship and were “pretty close.”
B.B. testified that, when she was about eleven, the Defendant started massaging
her “body parts and it made [her] uncomfortable.” He massaged her legs and her
buttocks. She said that she told the Defendant that she was uncomfortable, and he told
her that everything would be “okay” and that he would not hurt her.
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B.B. recalled the first time that the Defendant massaged her when she was eleven
years old. She said that she was lying on the floor of their apartment in Laurelwood
Apartments. He touched her legs and thighs over her clothing. After a while, the
Defendant started massaging her under her clothes, then he pulled down her shorts, and
eventually he pulled her underwear down. B.B. said that the Defendant also massaged
the tops of her thighs, her shoulders, her breasts, and the tip of her vagina. B.B. testified
that, at first, the Defendant used two hands to massage her. Later, he began using one
hand. B.B. said that she saw that the Defendant had his phone in his hand, and he told
her that he was texting. B.B. said she was unaware that he was recording the massages.
B.B. testified that the massages continued despite the fact that she told the
Defendant she was uncomfortable. They occurred a “few times a week” and after every
practice. B.B. said that her mother was not present during the massages and was usually
in her room asleep.
B.B. said that she moved with the Defendant and her mother to The Windsor Place
apartments when she was twelve and that the massages continued while they lived there.
After the Defendant and her mother ended their relationship when B.B. was twelve, the
Defendant was still involved in her life. He would pick her up from school some days,
when her mother had to work. On these occasions, B.B. would go to the Defendant‟s
hotel room, where the two would work out using a weight bench the Defendant had in his
room. The Defendant would then give her a massage. B.B. recalled that, one time, the
Defendant told her that he was going to use a remote control to massage her. She said
that the object he touched her with did not feel like a remote control. B.B. said that,
during almost every massage, the Defendant touched the tip of her vagina with his thumb
when he was massaging her between her thighs.
B.B. was shown the DVD of the videos of the massage. She recognized herself
and her clothing, and she said that it was the Defendant who was massaging her. B.B.
recalled that, after her mother received the Defendant‟s phone, she asked B.B. about the
video. Her mother then called the police.
During cross-examination, B.B. testified that the Defendant trained her in
basketball, helping her work out and playing against her. He attended her games and
cheered for her. B.B. agreed that the massages were conducted so that she would not be
as sore and that her mom was in the next room when many of the massages occurred.
She agreed that she could have called out to her mother, and she did not tell the
Defendant to stop.
B.B. said her mother knew about the massages at first, but Ms. Redmond told the
Defendant not to touch B.B. inappropriately. B.B. said that she trusted the Defendant.
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She said that the Defendant asked her if she was okay during the massages and that she
told him “yes.”
During redirect examination she said that she was not okay during the massages
but she did not think that the Defendant was doing anything to hurt her. She thought he
was trying to help her. She testified that it made her uncomfortable when the Defendant
touched her private areas.
Wilton Cleveland, a supervisor for the Memphis Police Department Sex Crimes
Bureau, introduced the video recordings taken from the Defendant‟s cell phone. The
videos were shown to the jury. The first video, created January 16, 2011, at 7:31 p.m.
was less than a minute in length and showed a weight bench and then the Defendant
briefly appears in the frame. Most of the video was of the ceiling or a blank screen. The
second video, created January 16, 2011, at 7:36 p.m. lasted less than two minutes and
showed the Defendant‟s bed and the Defendant intermittently. It was apparent that a
television in the room was on. Most of the video showed a blank screen.
The third video, created January 29, 2011, at 7:55 p.m., was a seventeen minute
video, and it showed the Defendant briefly and then depicted the ceiling for several
minutes. About ten minutes into the video, B.B.‟s buttocks appeared clothed in pink-
edged underwear. The underwear was pulled up to expose much of B.B.‟s buttocks. The
Defendant‟s hand was massaging B.B.‟s buttocks. The Defendant‟s thumb traveled close
to the area between B.B‟s legs. The camera zoomed in on the area between B.B.‟s legs
while the Defendant‟s hand massaged her buttocks. The screen went blank and stayed
blank for the duration of the video. The fourth video, created January 29, 2011, at 8:02
p.m. lasted approximately four minutes. B.B.‟s buttocks appeared in the same pink-
edged underwear and the underwear was again pulled up. The Defendant‟s hand was
massaging the buttocks, and he slipped his hand under her underwear. The screen went
blank for a minute, and then B.B.‟s buttocks was seen with the underwear pulled below
her bottom. The Defendant‟s hand massaged the buttocks for several minutes while the
video was being recorded. His thumb again went near the area between her legs.
Lieutenant Cleveland agreed that many of the videos on the Defendant‟s phone
were of irrelevant activity: monster truck races or other events. Skipping forward, the
State showed the jury a video created on February 20, 2011, at 8:57 p.m. In the video,
there were several minutes that showed the ceiling or wall. Around seven-and-a-half
minutes into the video, B.B.‟s buttocks in blue underwear was visible. The underwear
was pulled up to expose much of her buttocks. The Defendant‟s hand was seen in the
video massaging the buttocks and then slipping below B.B.‟s underwear.
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A video created February 23, 2011, at 1:18 p.m., showed B.B.‟s buttocks in white
underwear. The Defendant‟s hand was seen massaging the buttocks and B.B.‟s thighs
between her legs.
Three videos taken sequentially March 5, 2011, at 10:00 a.m., showed the
Defendant‟s hand massaging B.B.‟s buttocks. B.B. wore white underwear that were
pulled up to expose much of her buttocks. The video went blank for several minutes and
then showed B.B.‟s underwear pulled below her buttocks, exposing her entire buttocks.
The Defendant‟s hand was seen massaging the bare female buttocks. Much of the video
recording was blank. Intermittently, the Defendant‟s hand can be seen massaging B.B.‟s
buttocks and between her thighs.
Videos created on March 11, 2011, at 6:42 a.m., showed the Defendant‟s hand
massaging B.B.‟s buttocks. B.B. was wearing blue-edged underwear pulled up to expose
her buttocks. Her white jeans are pulled down, exposing her buttocks and tops of her
thighs. The Defendant‟s hand was seen massaging B.B.‟s buttocks, and his hand slipped
under her underwear. The video went blank and then B.B.‟s buttocks appeared
unclothed, with her underwear pulled below her buttocks. The Defendant‟s hand
continued to massage. The video again went blank for several minutes. B.B.‟s bottom
then appeared in view, and it was clothed again in underwear with the Defendant‟s hand
massaging it. The video again went blank, and then on the screen appeared a female
lying face down on a bed, her bottom clothed in underwear.
A video created April 3, 2011, at 6:17 p.m., showed the Defendant wearing a
whistle around his neck. B.B. was lying on a bed in what appeared to be work-out
clothing. The Defendant began massaging her legs over her clothing. The Defendant
then pulled down B.B.‟s shorts, exposing her white underwear. The Defendant continued
his massage. The Defendant was seen massaging B.B.‟s buttocks and between her thighs
while B.B. was still clothed in underwear. The Defendant took the phone in one hand
and brought the camera closer to B.B.‟s buttocks, massaging B.B. with his other hand.
B.B.‟s underwear was pulled up exposing her buttocks. The Defendant placed the phone
back down and began massaging B.B. with both his hands, sliding them under her
underwear. He also massaged B.B. between her legs. The Defendant then pulled down
B.B.‟s underwear and massaged her bare buttocks. The Defendant then pulled B.B.‟s
underwear back up over her buttocks. He massaged her again between her legs in a
rhythmic manner. At one point, B.B. raised her hips, and the Defendant‟s hands went
further between her legs, continuing his rhythmic massage. Later in the video, the
Defendant pulled down B.B.‟s underwear and continued to massage her between her legs.
During cross-examination, Lieutenant Cleveland agreed that the videos appeared
to have been recorded while the lights and television were both on. The female in the
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video was partially clothed and the male depicted appeared to be fully clothed in some
sort of athletic clothing. During redirect examination, Lieutenant Cleveland testified that
during a number of frames of the video the buttocks that appeared were unclothed or
covered only in underwear.
The Defendant testified that he and Ms. Redmond had dated for five or six years.
He viewed B.B. as a stepdaughter, and he helped her with basketball and to get into a
private school. The Defendant said he taught B.B. to shoot the ball, dribble the ball, and
how to be better-conditioned than her peers. The Defendant described himself as an
“awesome trainer” and said that he had B.B. doing squats, running miles, leaping over
fences, and doing push-ups. The Defendant said that he took B.B. to practice and
attended her basketball games. The Defendant felt proud of B.B. and the promise that
she showed for basketball.
The Defendant testified that the videos showed him giving B.B. massages. He
said that she would complain about pain in her legs, so he massaged her to try to loosen
“everything up.” The Defendant said that he had B.B. remove her clothing because her
clothing was getting in the way. He conceded that “it wasn‟t really the right thing to do”
but that he did not have “any kind of sexual intent” during the massage. The Defendant
said that he never forcefully removed B.B.‟s clothing and that the decision to remove her
clothing was “mutual.” The Defendant said that the videos showed him massaging her
buttocks primarily because, when she did squats, her pain was primarily in her hips,
buttocks, and thighs.
The Defendant testified that he video-recorded the massage sessions to document
that he was not inappropriate. He maintained that the videos were not sexual in nature
and said that he did not view B.B. in a sexual way. The Defendant agreed that one of the
videos showed B.B. wearing jeans. He said that B.B. would sometimes wear jeans over
her work out shorts. The Defendant said that he sometimes massaged B.B. with one hand
and sometimes with two hands. He said that, when he massaged her with one hand, he
was holding the phone with the other hand. He said that he was never touching himself
while massaging B.B. He said that he was never aroused and reiterated that the massages
were not sexual.
During cross-examination, the Defendant agreed that he was like a father to B.B.
He said that he supported her love for basketball and taught her different things. He said
that he started these massages when B.B. was eleven or twelve years old. The Defendant
agreed that there were no videos of B.B. doing pushups or squats, but he said that he took
them and the recordings were on his phone. The Defendant said that he did not tell B.B.
or Ms. Redmond that he was taking videos of B.B.‟s bare bottom, and he did not show
either of them the videos. The Defendant said that he did not want Ms. Redmond to see
13
the videos. The Defendant said that, while unclothing was a “mutual” decision, he was
the one who pulled down B.B.‟s pants before he gave her a massage. He maintained that
he only took the videos to prove he was doing nothing wrong.
On redirect examination, the Defendant testified that he did not want Ms.
Redmond to look through his phone because there were text messages between “female
friends” and him. He said that, while the two were not in an exclusive relationship, he
did not want her aware that there were other women who were texting him. The
Defendant said that if B.B. had ever indicated that she was uncomfortable or asked him to
stop massaging her that he would have stopped.
The State elected facts to support the charges. The trial court informed the jury
that to support the aggravated sexual battery charge, the State elected the offense
described by the Defendant‟s alleged pulling down the victim‟s pants and underwear and
touching her buttocks and vagina, skin to skin, for the first time, which occurred in 2009,
when the victim was twelve years old and living at Laurelwood Apartments. The trial
court informed the jury that to support the aggravated sexual exploitation of a minor
charge, the State had elected the video dated January 29, 2011, at 8:02 p.m., which
showed the Defendant touching the buttocks of the victim while she was wearing pink
patterned underwear and again when her panties were pulled below her bottom. Based
upon this election and this evidence, the jury found the Defendant guilty of aggravated
sexual battery and especially aggravated sexual exploitation of a minor.
C. Sentencing
At the sentencing hearing, the trial court stated that the State had filed a notice of
enhancement factors and also a motion for consecutive sentencing. The State presented
the presentence report and no other evidence. The Defendant chose to make a statement
rather than be questioned by his attorney. In his statement, the Defendant expressed the
belief that he had been forgiven by God for his crime. He then said that he had not
received a fair trial because he was convicted based upon the “perjury testimony” from a
policeman. He expressed his desire to get a good attorney on appeal so the appellate
judges could “exonerate [him].”
The Defendant noted that Ms. Redmond and B.B. were both not present at the
hearing, so he could not ask them for forgiveness for any wrong that they thought he had
done. He said that he believed B.B. would be successful because of the basketball
coaching he had provided to her.
The parties presented arguments after which the State informed the trial court that
a sample of the Defendant‟s DNA sample, obtained upon his arrest, had been submitted
14
to CODIS, and there was a match to the Defendant for a home invasion and rape that
occurred in 2010. The State said that it had submitted that evidence for indictment.
The trial court found that the Defendant was a Range I offender. For the
aggravated sexual battery conviction, a Class B felony, he was subject to a punishment of
between eight to twelve years. The trial court found that enhancement factor (1), that the
Defendant had a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the range applied based upon the Defendant‟s two prior
convictions for misdemeanor drugs as well as some driving offenses and also a failure to
appear conviction. T.C.A. § 40-35-114 (1) (2014). The trial court found that
enhancement factor (14) applied, that the Defendant abused a position of public or private
trust that significantly facilitated the commission of an element of the offense. T.C.A. §
40-35-114 (14). The trial court noted that the victim was a minor child and was in the
Defendant‟s custody and control during the commission of these offenses.
In mitigation, the trial court found that mitigating factor (1) applied because the
Defendant‟s conduct neither caused nor threatened serious bodily injury. T.C.A. § 40-35-
113 (1) (2014). The trial court also took into account that the Defendant had strong
family support pursuant to mitigating factor (13). T.C.A. § 40-35-113 (13).
The trial court stated:
As to count one, the Court finds that based on the testimony in this
case, the proof that was adduced, which the Court before sentencing has
reviewed the Court‟s notes as to the testimony at the trial, as well as
considering the memorandums filed by the defense and the presentence
report, which has been considered in full, regarding the [D]efendant‟s
background.
The Court finds that this case involved a number of incidents that
were mentioned in the indictment, as well as were testified to, at trial.
There was an elected offense, which the jury found beyond a
reasonable doubt was proven by the State, which was the conviction
offense for aggravated sexual battery.
However, the testimony was such that this conduct clearly persisted
over a number of years, ending at such time after the victim turned thirteen,
but was then being video-taped by the [D]efendant.
15
The Court finds that based on that, the proper sentence in this case
would be twelve years.
As to the other count, which is aggravated sexual exploitation of a
minor, this dealt with the [D]efendant filming the victim. The filming was
proven at trial, as well as the videos, which were presented to the jury.
The Court finds that under the circumstances, especially that this
occurred towards the end of the criminal episode the Court will sentence
the [D]efendant to nine years on this offense, at the Department of
Correction.
The trial court then addressed consecutive sentencing. It stated:
That the [D]efendant is 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 [D]efendant and
the victim, or victims;
The time span of the [D]efendant[‟]s undertaking in 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.
The Court is considering that consecutive sentencing factor. In this
particular case we have a long history of several years, several locations.
The fact that the relationship, again, between the [D]efendant and the
victim, the victim trusted the [D]efendant, the [D]efendant was helping the
victim in coaching and trying to help the victim with her basketball, that
she was very, very interested in and apparently was very successful at. The
[D]efendant used that relationship to commit these offenses for many years.
The scope of the sexual acts, again, this was a very regular and
ongoing thing and the Court, based on the testimony of the victim finds that
there was residual damage, though it was not physical, it was mental and
feels that consecutive sentencing would be appropriate in this case,
considering all of the factors that are set out.
For that reason, count one will be served and count two will be
served, consecutively, to count one.
It is from these judgments that the Defendant now appeals.
16
II. Analysis
On appeal, the Defendant contends that: (1) the trial court erred when it required
that he be represented by counsel at trial; (2) the evidence is insufficient to sustain his
convictions; and (3) the trial court erred when it ordered consecutive sentences.
A. Self-Representation
The Defendant contends that the trial court improperly denied him his right to self-
representation. He contends that the trial court based its decision on the fact that he
improperly impeached a witness and because he was “too emotional” about the subject
matter. He asserts that these were not proper bases for the trial court‟s decision. The
State counters that the trial court properly reappointed the Defendant counsel after the
Defendant repeatedly demonstrated that he was too emotionally charged to conduct
himself within the constraints of proper courtroom decorum.
The Sixth Amendment to the United States Constitution and article I, section 9 of
the Constitution of Tennessee guarantee the accused a right to the assistance of counsel.
Lovin v. State, 286 S.W.3d 275, 284 (Tenn. 2009). Likewise, the accused has a right to
self-representation. State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). The right to
self-representation and right to counsel are rights in the alternative, and the defendant
cannot, for obvious reasons, assert both at the same time. Lovin, 286 S.W.3d at 284.
“The determination of whether a defendant has exercised his or her right of self-
representation and has concurrently waived his or her right to counsel is a mixed question
of law and fact.” State v. Hester, 324 S.W.3d 1, 29 (Tenn. 2010) (citing United States v.
Kimball, 291 F.3d 726, 730 (11th Cir. 2002); United States v. Robinson, 913 F.2d 712,
714 (9th Cir. 1990); Spencer v. Ault, 941 F. Supp. 832, 851 (N. D. Iowa 1996); State v.
Jordan, 118 Conn. App. 628, 984 A.2d 1160, 1166 (2009); 1 Kevin F. O‟Malley et al.,
Federal Jury Practice & Instructions § 5:6 (6th ed.2009)). Accordingly, on appeal, we
apply a de novo standard of review, granting the trial court the presumption that its
findings of fact are correct. Id. at 29-30 (citing State v. Holmes, 302 S.W.3d 831, 837
(Tenn. 2010)). An error in denying the right to exercise self-representation is a structural
constitutional error that is not subject to harmless error review and requires automatic
reversal. Id. at 30 (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)); see
also State v. Herrod, 754 S.W.2d 627, 630 (Tenn. Crim. App. 1988) (holding that “[t]he
accused is not required to establish prejudice when his right to self-representation has
been wrongfully denied”).
“When balancing the right of self-representation against the right to counsel at the
trial stage of proceedings, the courts have assigned a constitutional primacy to the right to
17
counsel over the right to self-representation.” Helster, 324 S.W.3d at 30. Thus, “courts
should indulge every presumption against waiver of the right to counsel.” Id.
For a defendant to exercise his or her right of self-representation at the trial stage
of the proceedings, (1) a defendant must make the request in a timely manner, (2) the
assertion of the right of self-representation must be clear and unequivocal, and (3) the
assertion of the right of self-representation must reflect a knowing and intelligent waiver
of the right to counsel. Id. at 30-31 (citations omitted). In accordance with Tennessee
Rule of Criminal Procedure 44(b)(1)(A), before accepting a defendant‟s waiver of the
right to counsel, the trial court must “advise the accused in open court of the right to the
aid of counsel at every stage of the proceedings.” Id. at 30. The Court must also
“determine whether there has been a competent and intelligent waiver of such right by
inquiring into the background, experience, and conduct of the accused, and other
appropriate matters.” Id. (quoting Tenn. R.Crim. P. 44(b)(1)(B)). The defendant must
waive his or her right to counsel in writing, Tennessee Rule Criminal Procedure 44(b)(2),
and this writing must be included in the record, Tennessee Rule Criminal Procedure
44(b)(3).
Even where the invocation of the right of self-representation meets these
requirements, the effectiveness of the defendant‟s invocation and waiver is not
necessarily a foregone conclusion. Id. The right of self-representation is not absolute.
Id. (citing Indiana v. Edwards, 554 U.S. 164, 171 (2008)). Among other limitations, the
United States Supreme Court has recognized the absence of a right of self-representation
when a defendant seeks to abuse the dignity of the courtroom or to engage in serious
obstructionist misconduct. Id. (citing Edwards, 554 U.S. at 171). Defendants are “not
entitled to use the right of self-representation as a tactic for delay, for disruption, for
distortion of the system, or for manipulation of the trial process.” Id. (citations omitted).
In the case under submission, after the hearing on the motion to suppress, the
Defendant requested that he be allowed to represent himself. He claimed that Counsel
was not effectively representing him because he owed Counsel money. The trial court
questioned the Defendant, warned the Defendant against self-representation, and allowed
the Defendant to represent himself, appointing Counsel as “advisory counsel.” The
Defendant then filed several motions, again attacking the evidence obtained by police.
The trial court informed the Defendant that his motions were not properly prepared.
After speaking with the Defendant for some time, the trial court explained that it had
ruled on the motion to suppress and that it had credited the testimony of the officers.
After further argument by the Defendant, the trial court allowed the Defendant to have a
hearing on the limited issue of whether he was in custody while he gave statements to
police.
18
During the hearing on that issue, the Defendant attempted to relitigate issues
already decided by the trial court. The Defendant then openly accused the police officer
of lying. When the trial court reminded the Defendant that he had already credited the
officer‟s testimony, the Defendant then again accused the officer of lying. At this point,
the trial court noted that the Defendant was “too emotional” to handle representing
himself. At the hearing on the motion for new trial, the trial court stated:
During the motion to suppress the [D]efendant, you know . . . was
very emotional and got into an argument with the witness and started
making statements.
As I told him the first time I admonished him is that you‟re not
allowed to do this in front of a jury. It wasn‟t a jury in the box at that time,
it was a hearing before the Court, but he kept saying oh, the witness is
lying. He just kept – he would stop and say, Judge, he‟s lying.
And as I told him I said you can‟t do that. And it got to the point
where it was constant and I finally said to him, I said this is too emotional
for you. And I said I think I‟m going to go ahead and require you to
acquire [Counsel] to come on the case, and at that time he indicated he
understood the reason that he was emotional and he was having a hard time
being able to do that.
So I went ahead and at that point had [Counsel] come back on. I had
him sitting in the courtroom at the time as stand-by counsel, and I went
ahead and put him back on the case.
Based on everything I saw I . . . do not believe that that was an
erroneous decision on my part, and I‟m going to deny those parts of [the]
motion [for new trial].
From our reading of the transcript, it appears that the Defendant‟s self-
representation was disruptive. The Defendant‟s repeatedly accusing a witness of lying,
after being admonished by the trial court, and being unable to accept the trial court‟s
ruling and move forward with the case, show that he was using his representation to
disrupt the legal process. The record evinces that the trial court was patient, often
repeating instructions to the Defendant, and that it attempted to allow the Defendant to
represent himself. We were not present in the courtroom. We did not hear the
Defendant‟s tone or see the Defendant‟s demeanor when he accused the officer
repeatedly of lying. We, therefore, rely on the trial court‟s assessment that the Defendant
could not handle his own representation because he was too emotional about the case and
19
disruptive to the legal process. We conclude that the trial court did not commit
constitutional error by denying the Defendant‟s request to represent himself. The
Defendant is not entitled to relief on this issue.
B. Sufficiency of Evidence
The Defendant contends that the evidence is insufficient to sustain his convictions.
He asserts that the evidence does not support his aggravated sexual battery conviction
because, as he testified, he had no sexual intent when he touched B.B. The Defendant
further contends that the evidence is insufficient to support his conviction for especially
aggravated sexual exploitation of a minor because the recordings from his phone do not
show the victim engaging in “sexual activity.” The State counters that the evidence is
sufficient to sustain the Defendant‟s convictions. We agree with the State.
When an accused challenges the sufficiency of the evidence, this Court‟s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “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 Tenn. R.
App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.
1973). The jury decides the weight to be given to circumstantial evidence, and “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the
jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). “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)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “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. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); Liakas, 286 S.W.2d at 859. “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
20
favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978);
State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court 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.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable
inferences which may be drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000).
In this case, the Defendant was convicted of one count of aggravated sexual
battery and one count of aggravated sexual exploitation of a minor. Aggravated sexual
battery is defined as “unlawful sexual contact with a victim by the defendant or the
defendant by a victim [where] . . . [t]he victim is less than thirteen (13) years of age.”
T.C.A. § 39-13-504(a)(4) (2014). “„Sexual contact‟ includes the intentional touching 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[.]” T.C.A. § 39-13-501(6) (2014). “„Intimate parts‟ includes the primary
genital area, groin, inner thigh, buttock or breast of a human being[.]” T.C.A. § 39-13-
501(2) (2014). “The requirement of a particular purpose, to arouse or gratify sexual
desire, distinguishes the crime of sexual battery from an ordinary assault and from
noncriminal touching or contact.” State v. Santos Medardo Funes Romero, No. E2013-
02137-CCA-R3-CD, 2014 WL 7010815, at *16 (Tenn. Crim. App., at Knoxville, Dec.
12, 2014) (citing State v. Anthony Lee Hill, No. E2003-02998-CCA-R3-CD, 2005 WL
623244, at *5 (Tenn. Crim. App., at Knoxville, Mar. 17, 2005), perm. app. denied (Tenn.
Oct. 10, 2005)), no Tenn. R. App. P. 11 application filed. The aggravated sexual battery
statute does not require that the defendant become sexually aroused or gratified by the
sexual contact, only that the touching can be “„reasonably construed as being for the
purpose of sexual arousal or gratification.‟” State v. Mahlon Johnson, No. W2011-
21
01786-CCA-R3-CD, 2013 WL 501779, at *12 (Tenn. Crim. App., at Jackson, Feb. 7,
2013) (quoting State v. Roy Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL
12177118, at *3 (Tenn. Crim. App., at Nashville, June 3, 2004) sub history), perm. app.
denied (Tenn. Aug. 14, 2013).
In the case under submission, the evidence shows that the Defendant began
massaging B.B. when she was eleven years old. The massages were initially over her
clothing, but they eventually occurred against her bare skin with her underwear pulled
below her bottom. The Defendant massaged B.B.‟s bare buttocks, her inner thighs, and
the tip of her vagina. Later, after the victim was older than thirteen, the Defendant began
video taping these massages. He zoomed the camera close to her bottom while he
rhythmically rubbed her buttocks and between her legs. The jury heard the Defendant‟s
testimony that these massages were non-sexual in nature; however, by their verdict, they
did not credit the Defendant‟s account of the massages. We conclude that this evidence
supports the jury‟s finding that the contact between B.B. and the Defendant was “sexual
contact,” that the victim was less than thirteen when this contact occurred, and that the
touching could be reasonably construed as being for the purpose of sexual arousal or
gratification.
Especially aggravated sexual exploitation of a minor occurs when a person
knowingly promotes, employs, uses, assists, transports, or permits a minor to participate
in the performance of, or in the production of, acts or material that includes the minor
engaged in: “(1) Sexual activity; or (2) Simulated sexual activity that is patently
offensive.” T.C.A. § 39-13-1005 (a) (2014). A minor is defined as “any person who has
not reached eighteen (18) years of age.” T.C.A. § 39-17-1002 (3). “Material” is defined
as:
(A) Any picture, drawing, photograph, undeveloped film or film negative,
motion picture film, videocassette tape or other pictorial representation;
(B) Any statue, figure, theatrical production or electrical reproduction;
(C) Any image stored on a computer hard drive, a computer disk of any
type, or any other medium designed to store information for later retrieval;
or
(D) Any image transmitted to a computer or other electronic media or video
screen, by telephone line, cable, satellite transmission, or other method that
is capable of further transmission, manipulation, storage or accessing, even
if not stored or saved at the time of transmission . . . .
22
T.C.A. § 39-17-1002 (2). “Patently offensive” means that which goes
substantially beyond customary limits of candor in describing or representing such
matters. T.C.A. § 39-17-1002(4).
The State elected facts to support the conviction relying on a video of the
Defendant massaging B.B.‟s buttocks while she was wearing pink-edged underwear. The
Defendant pulled B.B.‟s underwear below her buttocks and video-recorded himself
massaging her bare bottom with his thumbs traveling between her legs. This is sufficient
evidence to support the Defendant‟s conviction. See State v. Tolbert Cates Kail, No.
W2011-01474-R3-CD, 2013 WL 2152144, at *1-2, *8-9 (Tenn. Crim. App., at Jackson,
May 17, 2013), perm. app. denied Tenn. Sept. 10, 2013). The victim was under eighteen
and qualified as a “minor” pursuant to the statutory definition. The Defendant video-
recorded himself massaging the victim in a manner that depicted her engaging in sexual
activity. He is not entitled to relief on this issue.
C. Consecutive Sentencing
The Defendant next contends that the trial court erred when it ordered that his
sentences run consecutively. He asserts that consecutive sentences were not warranted
because he was not convicted of two or more statutory offenses of sexual abuse of a
minor and because the aggravating circumstances for imposition of consecutive sentences
were not present. The Defendant bases his first contention upon the fact that B.B. was
not a “minor” when he filmed her engaged in sexual activity. About his second
contention, he asserts that there was no evidence that B.B. had any residual physical or
mental damage and the nature and scope of his sexual acts does not weigh in favor of
consecutive sentences. The State disagrees, stating that the trial court properly sentenced
the Defendant. We agree with the State.
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 (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
23
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
sentences within the appropriate range and properly applies the purposes and principles
of the Sentencing Act, its decision will be granted a presumption of reasonableness. Id.
at 707.
Our Supreme Court extended the Bise standard to appellate review of the manner
of service of the sentence and consecutive sentencing. The Court explicitly held that “the
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing, including the questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). In State v. Pollard,
the Court held, “the appropriate standard of appellate review for consecutive sentencing
is abuse of discretion accompanied by a presumption of reasonableness.” 432 S.W.3d
851, 860 (Tenn. 2013). We also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant's own behalf about
sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The trial court must also consider the potential or lack of potential for
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 (2014).
Consecutive sentencing is a matter addressed to the sound discretion of the trial
court. Pollard, 432 S.W.3d at 860. A trial court may order multiple sentences to run
consecutively if it finds, by a preponderance of the evidence, that at least one of the seven
statutory factors exists. T.C.A. § 40-35-115 (b)(1)-(7) (2014). One of those factors is
that: “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. T.C.A. § 40-35-115
(b)(5). In addition to these criteria, consecutive sentencing is subject to the general
24
sentencing principle that the length of a sentence should be “justly deserved in relation to
the seriousness of the offense” and “no greater than that deserved for the offense
committed.” T.C.A. § 40-35-102 (1), -103 (2) (2014); see also State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002).
In the case under submission, the trial court based its decision upon 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 the Defendant‟s undetected sexual
activity, the nature and scope of the sexual acts and the extent of the residual, physical
and mental damage to the victim. See T.C.A. § 40-35-115 (b)(5). The trial court stated:
The Court is considering that consecutive sentencing factor. In this
particular case we have a long history of several years, several locations.
The fact that the relationship, again, between the [D]efendant and the
victim, the victim trusted the [D]efendant, the [D]efendant was helping the
victim in coaching and trying to help the victim with her basketball, that
she was very, very interested in and apparently was very successful at. The
[D]efendant used that relationship to commit these offenses for many years.
The scope of the sexual acts, again, this was a very regular and
ongoing thing and the Court, based on the testimony of the victim finds that
there was residual damage, though it was not physical, it was mental and
feels that consecutive sentencing would be appropriate in this case,
considering all of the factors that are set out.
We conclude that the evidence supports the trial court‟s findings. The Defendant
first contends he was not convicted of two or more offenses involving a minor victim
because the victim was not a “minor” in that she was more than thirteen when he video
recorded her. We find this argument unpersuasive. The relevant statute defines minor as
one under the age of eighteen. While in other contexts a minor may be defined
differently, we use the definition provided by the statute relevant to the Defendant‟s
conviction. He was therefore convicted of two or more offenses involving a minor
victim.
We further conclude that the trial court did not err when it determined that the
factors to be considered by the statute weighed in favor of consecutive sentences. The
Defendant‟s sexual abuse went undetected for years and was only discovered after the
Defendant‟s ex-girlfriend looked through his phone against his wishes. The Defendant
abused the victim‟s trust in him as a father figure and a basketball mentor. The
Defendant massaged the victim between her legs starting when she was eleven years old
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and ending years later. The massages became more intense, as shown by the videos
retrieved from the Defendant‟s cell phone. The trial court heard the victim‟s testimony at
trial and determined that she had residual mental damage. We conclude that the trial
court did not err when it ordered that the Defendant serve his sentences consecutively
based upon its weighing of the relevant factors. The Defendant is not entitled to relief on
this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court‟s judgments.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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