State of Tennessee v. Randall Kelvin Madison

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 18, 2011 Session

STATE OF TENNESSEE V. RANDALL KELVIN MADISON

Appeal from the Criminal Court of Davidson County

No. 2008-D-4188 Steve Dozier, Judge

No. M2010-00059-CCA-R3-CD - Filed May 4, 2012

A jury convicted Randall Kelvin Madison (“the Defendant”) of twenty-two counts of rape,

three counts of aggravated statutory rape, and one count of forgery. The trial court

subsequently merged several of the offenses so as to leave in place twelve counts of rape

and one count of forgery. After a sentencing hearing, the trial court ordered the Defendant

to serve an effective sentence of thirty-five years. In this appeal, the Defendant challenges

(1) the trial court’s ruling under Tennessee Rule of Evidence 404(b) that evidence of his

uncharged bad acts was admissible; (2) the State’s election of offenses; (3) the sufficiency

of the evidence; and (4) his sentence. We hold that (1) the Defendant is not entitled to

relief from the trial court’s Rule 404(b) ruling; (2) the Defendant has not demonstrated that

the State’s election of offenses was fatally deficient; and (3) the evidence is sufficient to

support his convictions. We also affirm the trial court’s sentencing decisions.

Accordingly, we affirm the Defendant’s convictions and sentences. 1

Tenn. R. App. P. 3 Appeal as of Right; Judgments

of the Criminal Court Affirmed; Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,

and J OHN E VERETT W ILLIAMS, J., joined.

Joy S. Kimbrough, Nashville, Tennessee, for the appellant, Randall Kelvin Madison.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant

Attorney General; Victor S. Johnson III, District Attorney General; Sharon Reddick and

Jennifer McMillen, Assistant District Attorneys General; for the appellee, State of Tennessee.

1

We nevertheless remand this matter to the trial court for correction of the judgment orders to reflect

the ordered mergers.

OPINION

Factual and Procedural Background

The Defendant was indicted in December 2008 on twenty-two counts of rape, three

counts of aggravated statutory rape, and one count of forgery. All of the rape counts

involved the minor male victim R. H.2 Counts 1 and 2 each allege that the rape occurred “on

a date between August 1, 2004 and September 30, 2004, in Davidson County” and that the

rape “was accomplished without the consent of” R. H. Counts 3 through 22 each allege that

the rape occurred “on a date between August 1, 2005 and September 30, 2006, in Davidson

County.” Of these charged offenses, Counts 3 through 12 each allege that the rape was

committed with force or coercion, and Counts 13 through 22 each allege, in the alternative,

that the rape was committed by fraud. Count 23 alleges that, on June 8, 2006, the Defendant

forged “a writing purported to be the act of Dr. Theodora Pinnock” with the intent to harm

R. H. Counts 24 through 26 each allege that the Defendant committed aggravated statutory

rape against R. H. “on a date between July 1, 2006 and September 30, 2006, in Davidson

County.”3 The Defendant was tried before a jury on May 18 - 21, 2009.

A brief timeline will assist in placing the proof in context. The victim’s birth date is

October 26, 1989. Accordingly, he turned fourteen on October 26, 2003. The victim’s

freshman year in high school began in the late summer of 2004; his sophomore year began

in the late summer of 2005; his junior year began in the late summer of 2006; and his senior

year began in the late summer of 2007. The victim began working at Academy Sports in the

late summer or early fall of 2006, shortly before he turned seventeen on October 26, 2006.

Counts 1 and 2 of the indictment therefore refer to a period of time when the victim was

fourteen years old and at the beginning of his freshman year in high school. The remainder

of the counts refer to a period of time when the victim was fifteen and sixteen years old.

At trial, the victim testified that he was currently nineteen years old and that he lived

with his mother, T. D.4 The victim has a younger brother and a younger sister whom his

mother adopted several years earlier after foster-parenting them. The victim explained that

his father lived in Antioch but that he had contact with his father only “now and then.”

2

This Court identifies victims of sex crimes only by their initials.

3

Aggravated statutory rape became a crime on July 1, 2006. See 2006 Tenn. Pub. Acts ch. 890 §§

5, 26.

4

In an effort to protect the victim’s identity, we also refer to his mother by her initials.

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The victim testified that he was active in his church, which he had been attending his

“whole life.” He met the Defendant through church when he was in the eighth grade. The

Defendant became a friend of the family and acted as “a mentor to [the victim] and the other

youth in the church.” The victim started spending time with the Defendant outside of church,

including attending the Defendant’s family functions, going to movies, and going out to eat.

When T.D. began traveling overnight for her job, she suggested the victim spend those nights

with the Defendant because she did not want the victim staying at home by himself.

According to the victim, the Defendant lived by himself in a two bedroom house. The

first night the victim spent with the Defendant, he was fourteen years old and a freshman in

high school. It was a Monday night in the early fall of 2004 and they watched football

together. After the game, the victim went to bed in the second bedroom. During the night,

the victim woke up to find the Defendant “on top of [him] with his back facing [him].” The

victim explained that the Defendant was “moving,” which the victim described as “grinding

back and forth.” The victim stated that his (the victim’s) shorts were on, but that his

“privates were out.” The victim described their contact as “[s]kin to skin.” When asked

where his “privates” were in relation to the Defendant’s, the victim responded, “[i]n his anal

region.” When the Defendant realized the victim had awakened, the Defendant left the room.

The victim then got up, went to the bathroom, and went back to sleep. The next day, the

Defendant took the victim to school “as if nothing happened.” They did not speak about the

incident.

The victim returned home that afternoon because his mother was back from her trip.

He did not say anything to her about what had happened. The victim explained his silence:

“Because my mother, she’s the type that when it comes to her children she doesn’t play. She

will take a life for her children. And if I would have told her what happened, she would have

taken his life.” The victim told no one else about the incident.

The victim continued seeing the Defendant as before and did not change his conduct

toward the Defendant because he was concerned that people would “question” a change in

his behavior. Roughly a month later, his mother went out of town again and again suggested

that he spend the night with the Defendant. The victim testified that he did so because he

“didn’t have anywhere else to go.” The victim testified that, as occurred previously, he

awoke to find the Defendant straddling him. When the victim asked him what he was doing,

the Defendant did not reply but left the bedroom. The victim stated that, during the

encounter, his penis was in the Defendant’s anus. The next morning, nothing was said and

the Defendant took the victim to school. The victim testified that he had not consented to

this behavior on either occasion.

The victim spent five to seven additional nights with the Defendant during the ninth

grade (2004-2005), but nothing more occurred that school year.

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Also during his freshman year, and continuing through his sophomore year (2005-

2006), the victim frequently would meet the Defendant after school at the Defendant’s place

of employment in downtown Nashville. On the afternoon of May 9, 2005, while the victim

was still a freshman, the victim told the Defendant that he wanted to use the Defendant’s

work computer to look for a summer job. Instead of looking for a job, however, the victim

used the Defendant’s work computer to visit a pornographic web site (“the Computer

Incident”). The Defendant later confronted him about what had happened, explaining that

his office had scanned the computer and discovered the visit to the website. The victim

acknowledged what he had done, and the victim subsequently spoke with Dr. Pinnock, the

Defendant’s supervisor, about his activities. The victim acknowledged to Dr. Pinnock that

he had used the computer for this purpose, and “signed some paperwork saying that [he] did

it and that [he] agreed that it wouldn’t happen again.” The victim “thought that was the end

of it.” The paperwork that the victim signed was admitted into evidence. It is titled

“Statement” and sets forth the following:

I, [R. H.] on May 9, 2005 sat at the desk of [the Defendant] and enter[ed] the

internet without his permission. Upon entering the internet I went to several

porn websites before he returned to his desk. Once he returned I immediately

closed the sites but he was able to view one and asked what was I doing. He

went on to explain to me that he could lose his job behind [sic] this incident.

I do apologize to [the Defendant] and those involved for the actions taken by

me.

I therefore affix my signature upon this statement this 11th day of May, 2005.

The statement is also signed by a notary public.

That summer of 2005, between the victim’s freshman and sophomore years, the victim

was engaged in volunteer activities and spending time with his family in Mississippi, so he

did not see the Defendant. Their relationship resumed with the new school year, however.

During a weekend early in the new school year (the fall of 2005), the victim was again

spending the night with the Defendant because the victim’s mother was out of town. The

Defendant brought up the Computer Incident and told the victim that the Defendant “could

lose his job” and also that the victim “could go to jail no less than seven years [because he

had] looked up pornography on a State computer.” At this time, the victim’s mother was in

the process of trying to adopt the victim’s younger brother and sister. The Defendant pointed

out to him that, if he (the victim) went to jail, he would not be available to help his mother

with the children. This disturbed the victim because he “would do anything” for his mother.

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He told the Defendant,

no, no, no, you can’t send me to jail. You can’t send me to jail. I have to be

here for my mother. I have to help her raise these two kids. I’m the oldest in

the house. I really need to – she really needs me to help her with these kids.

He testified that he “was basically begging [the Defendant] not to send [him] to jail.”

After this conversation, the victim went to take a shower. While he was in the shower,

the Defendant entered the bathroom and got in the shower with him. The victim assumed

that the Defendant wanted sex and also assumed that he had to acquiesce to the Defendant’s

wishes in order “to be here for [his] mother and these kids.” However, all the Defendant did

was wash the victim’s body.

In addition to this weekend, the victim spent most of his Wednesdays after school

during his sophomore year with the Defendant. The victim would arrive at the Defendant’s

workplace and then spend time at the Defendant’s residence before they would go to evening

church activities. The victim testified, “And while I was at his house pretty much every

Wednesday all of my sophomore year we would have sex every Wednesday at his house.”

The victim described this sex as him penetrating the Defendant. Between five and ten times,

the Defendant would perform oral sex on the victim first in order to give the victim an

erection. After the sexual encounters, the victim would “go wash up and then [they] would

leave and go to the church.”

The victim testified that he did not want to be having sex with the Defendant, but that

every time he tried to end their sexual relationship, the Defendant would threaten him in

some way. The victim stated that the Defendant would bring the Computer Incident “back

up” and that “every time [the victim] would pull away it was always a different threat.” The

victim said, “It was always something like letters would be sent to my house, I would get e-

mails saying you should do this or you need to do that.”

The sexual relationship continued into the summer following his sophomore year. At

the beginning of his junior year, the victim started a job at Academy Sports in the Rivergate

area in Davidson County. The victim testified that he and the Defendant had sex in the

bathroom at the victim’s job site “a couple of times.” Also, when asked if he and the

Defendant ever had sexual relations in Nashville other than at the Defendant’s house, the

victim responded, “I think it’s happened in my house twice.”

When the victim tried to end the sexual relationship at the beginning of his junior year

(the late summer/early fall of 2006), the Defendant told him “whatever is in the dark shall

come to light.” The victim became concerned that the Defendant would tell people at their

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church that the victim was a homosexual. The victim testified, “I didn’t want anybody

thinking I’m a homosexual . . . because I’m not. And I didn’t want anybody looking at me

differently because of this.” The Defendant also claimed to have made tape recordings of

voice mail messages that the victim had left him. The Defendant gave him a tape, which the

victim destroyed after listening to it. The Defendant told him he had made multiple copies,

however, and the victim was afraid the Defendant would use the tapes to convince his mother

and people in the church that he was a homosexual. At about this same time, the victim’s

mother confiscated the victim’s cell phone because of a bad report card. She found a voice

mail message from the Defendant saying that the Defendant “loved [the victim] and stuff like

that.” T. D. confronted the victim and told him to cut all contacts with the Defendant. The

victim did not cut all contacts, however, and although he told the Defendant about his mother

hearing the voice mail, the relationship continued and moved to the victim’s job site and then

outside of Davidson County.

In July 2007, almost a year later, the victim finally told his mother about his

relationship with the Defendant. They then went to the Metro Police Department, taking a

collection of e-mails and other correspondence associated with the Defendant. The victim

answered affirmatively when asked on direct examination if “[t]he nature of those e-mails,

is that the nature of the type – kind of things he would say to you basically from the

beginning after he caught you looking at the pornography?” The victim also explained, “if

I would make him mad, he would be like you need to do this or you need do that or I would

do this or I would do that.” The victim also explained his acquiescence to the Defendant’s

demands: “I was looking for the best thing for me and my family and I feel that I did it

because I was helping my family as well as [my younger brother and sister] ’cause I could

see them going back to children’s services . . . [a]nd so I did that for me and my mother.”

The victim also testified that he believed he would go to jail if he ended his relationship with

the Defendant.

On cross-examination, the victim acknowledged that he stayed with another friend of

the family from church the first time his mother went out of town. He also explained that he

had received e-mails from the Defendant that predated the ones he turned over to the police,

but that he had already deleted those from his inbox. He reiterated that the first sexual

incident occurred during his freshman year. He also clarified that he was sixteen years old,

about to turn seventeen, when he began working at Academy Sports at the beginning of his

junior year.

T. D. testified that she was a computer systems analyst and that her work began taking

her out of town “frequently” during the period September 2003 through March 2004. The

victim was “about 13, 14” during this time. While she was out of town, sometimes the victim

stayed with T. D.’s brother and other times he stayed with the Defendant. She did not

develop any concern about the victim’s relationship with the Defendant for several years.

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She became concerned, however, when a letter dated June 8, 2006, on State letterhead came

in the mail addressed to the victim. She read the letter and, although it purported to be from

a Dr. Pinnock, she became suspicious that it was actually from the Defendant. The letter,

admitted at trial, refers to an “internet violation” made on the Defendant’s computer by the

victim and that the Defendant’s job was thereby at risk. The letter recites that the Defendant

had decided not to pursue the matter against the victim, but asserts that the “division/State

of Tennessee still can feel the need to press charges if found necessary.”

T. D. called Dr. Pinnock and confirmed that Dr. Pinnock had not written the letter.

She then spoke with the Defendant about the letter, and he told her that he suspected a

coworker was responsible for it because they were upset about his high salary. She also had

a conversation with the victim about the letter, and he told her about the Computer Incident

and that he and the Defendant had spoken with Dr. Pinnock about it.

T. D. testified that she also received a letter addressed to her that was signed “B” and

which claimed the victim was attending clubs while visiting his father. T. D. threw this letter

out after she asked one of the victim’s friends, whose name started with “B,” about it and he

denied having written it. She also received a letter that purported to be from a girl that the

victim was dating. T. D. described the letter’s contents as “crazy,” and, when the victim

disavowed any knowledge of why his girlfriend would write such things, they threw the letter

out.

T. D. testified that she became particularly concerned about her son’s relationship

with the Defendant in October 2006, at the time the victim began working for Academy

Sports. She had the victim’s cell phone and listened to a voice mail that the Defendant left

on it. She recalled that the message included the words, “you felt good last night.” She

spoke to the victim about it, but he explained it away. She then called the Defendant and

threatened him “that he better stay away from my child or I would have the police over here

before he knew it.” The Defendant hung up on her and, to her knowledge, her son had no

further contact with the Defendant.

After she discovered another phone call from the Defendant in July 2007, she

confronted the victim and he confessed his sexual relationship with the Defendant. T. D.

testified that the victim told her the relationship started when the victim had accessed the

pornographic website on the Defendant’s computer at work. The victim told her that the

Defendant had threatened him.

T. D. stated that the victim’s freshman year in high school was 2004 to 2005 and he

turned 15 in October 2004. His sophomore year was 2005 to 2006 and he turned sixteen in

October 2005. His junior year in high school was from 2006 to 2007, and his senior year

was 2007 to 2008. She also explained that he was retained a year in the seventh grade.

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On cross-examination, T. D. stated that, after the victim’s father left the family home

in July 2003, the victim saw his father on average about five or six times a year.

Dr. Theodora Pinnock testified that she was employed by the State of Tennessee

Department of Health as its Director of Maternal and Child Health. The Defendant was

under her supervision and was employed as an administrative services assistant. She recalled

the victim’s visiting the Defendant at the workplace and the Defendant’s introducing the

victim to her as his godson. In May 2005, the Defendant told her that the victim had

accessed a pornographic website on the Defendant’s work computer. Dr. Pinnock told the

Defendant that persons other than state employees should not be using state computers. She

spoke with the victim about the incident, and he acknowledged his actions. The victim

apologized and executed a notarized statement of his apology. Dr. Pinnock told the victim

that the incident was then “over.” The Defendant was not disciplined over the incident.

According to Dr. Pinnock, the Defendant told her that he had discovered the website

visit himself. She was not aware of any “scan” of the Defendant’s computer. Dr. Pinnock

denied writing the letter dated June 8, 2006, purporting to be from her. She also denied

having given the Defendant permission to draft the letter and denied having ever given him

permission to sign her name.

Bryan Doersam, a detective with the Metro Police Department Sex Crimes Unit,

testified that he investigated the instant crimes after the victim and the victim’s mother came

to the office in July 2007 and filed a complaint against the Defendant. At that time, the

Defendant was forty-eight years old and the victim was seventeen. The victim provided Det.

Doersam with numerous documents including letters and e-mail correspondence. The victim

also provided voice mails from the Defendant that had been left on the victim’s phone. In

furtherance of the investigation, the victim was outfitted with a wire and then had a

conversation with the Defendant. This conversation was recorded and monitored by Det.

Doersam, who described the conversation as follows:

The nature of that body wire conversation was [R.H.] confronting [the

Defendant] about this relationship; him not wanting to be a part of that; [the

Defendant’s] overall theme was him continuing the fact that this is your fault,

[R. H.], I only did these things, you know, because I wanted you to be truthful

with me.

He admits to calling [R. H.’s] mother at work. He admits to having

someone call his house trying to keep this relationship going. He admits to

sending letters to keep –

-8-

Det. Doersam was interrupted by an objection, but later testified that, during the monitored

conversation, the Defendant admitted that he and the victim had sex “[a]nd that he thought

all this was [R. H.’s] fault; that the stuff with him looking at pornography at his work had

kept him from getting raises, had kept him from getting promotions, that that was all [R.

H.’s] fault.” The Defendant also asserted that the victim was facing jail time.

The Defendant was subsequently taken into custody at his workplace and Detective

Carrigan advised the Defendant of his Miranda rights. Det. Carrigan then walked the

Defendant to the Criminal Justice Center, which was only a couple of blocks away. On the

way, Det. Carrigan asked the Defendant “what he thought we were there for.” The

Defendant asked him “if it was about [R. H.].” Det. Carrigan did not know the victim’s

identity at that time, so he replied, “tell me about [R].” According to Det. Carrigan, “a[t] that

point, [the Defendant] started discussing his relationship with [R. H.] and admitted to a

sexual relationship with him.” Det. Carrigan stated that he audio-recorded this conversation.

Once they reached the Criminal Justice Center, they continued the interview and switched

to a video recording. The video recording was played for the jury, and a transcript was also

provided.

During the interview, the Defendant admitted that, as of the time that R. H. accessed

pornography on his work computer, their sexual relationship had been ongoing for about a

year. He clarified that the first time they had sex was on a Monday night during the fall of

2004 or 2005. It was R. H.’s first visit to the Defendant’s house. He described this initial

sexual contact as “his penis in me.” He later stated that, on this first occasion, the victim first

had anal sex with him and then he had anal sex with the victim. Their sexual relationship

continued into May of the following year when the incident with the Defendant’s work

computer occurred. The Defendant stated that, during this interval, he and R. H. had sex

“about 30” times.

The Defendant explained that the victim came to stay at his house when the victim’s

mother was out of town. The Defendant stated that these visits occurred a couple of times

a month. On a “couple” of occasions, the victim stayed two nights on these visits.

The Defendant said that the victim was lying when he claimed that the Defendant

started their sexual relationship. According to the Defendant, the victim initiated the first

sexual episode. The first episode occurred on the Defendant’s couch, not in the spare

bedroom. The Defendant stated that the last time he had sex with the victim at the

Defendant’s house was in October 2006.

The Defendant stated that the last sexual contact he had with the victim was in a hotel

in Sumner County on July 7, 2007. The Defendant admitted that he and the victim had been

to this hotel about five or six times, the first time being in January 2007. The Defendant

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explained that they moved their sexual relationship to Sumner County because the victim’s

mother had demanded that they stop speaking to each other. The victim had begun working

at Academy Sports in Rivergate and suggested to the Defendant that the Defendant contact

him at his job. The hotel was nearby. The Defendant would visit the victim on the victim’s

lunch break.

The Defendant stated that he performed oral sex on the victim twice over the course

of their relationship. Both of these incidents occurred in Davidson County. The victim

performed oral sex on the Defendant three or four times.

The Defendant admitted that he and the victim exchanged e-mail correspondence.

When confronted with the documents provided by the victim, the Defendant acknowledged

his authorship. He also admitted having written and signed the letter purportedly from Dr.

Pinnock and acknowledged having sent a letter to the victim from a fictitious attorney, again

reminding the victim of the Computer Incident. He sent the victim these letters in an effort

to intimidate him into continuing their sexual relationship. The Defendant also admitted

writing letters that purported to be from a girlfriend of the victim’s and from a “concerned

neighbor.” He wrote these letters to get the victim in trouble with his mother in retaliation

for the victim’s lying to him. When Det. Carrigan asked,

And then the other letters you sent on your own, and other e-mails you sent on

your own were also for that same purpose of intimidating, threatening,

coercing him to continue having sex with you, or else I’m coming out with all

this other stuff[,]

the Defendant replied, “Yes.”

The Defendant explained that he had taped messages that the victim had left on his

voice mail and had threatened the victim with turning the tape over to the victim’s mother

if the victim refused to continue their relationship. He also wanted the tape to prove to the

victim’s mother that “this wasn’t something that was started by me.” The Defendant denied

that he was interested only in continuing the sexual aspect of their relationship and averred

that he had some “pretty deep feelings” for the victim.

The Defendant explained that he felt the victim trying to pull away from him after the

Computer Incident. The Defendant also admitted to having become jealous when he learned

that the victim was spending time with girls. The Defendant wanted the victim to be

“faithful” to him.

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Toward the end of the interview, the following colloquy transpired:

CARRIGAN: November of ‘04 you started to have sex with him at your

house.

[DEFENDANT]: Right.

CARRIGAN: That night he had anal intercourse with you, you had anal

intercourse with him.

[DEFENDANT]: Right.

The Defendant also reiterated that, between November 2004 and May 2005, he and the

victim had sex about thirty times. Between May 2005 and June 2006, they had sex in the

“general range” of one hundred times. The last time they had sex at the Defendant’s house

was in October 2006 when the victim put his penis “in” the Defendant. In January 2007, they

started having sex in Sumner County, about once or twice a week depending on the victim’s

work schedule. The Defendant also admitted that he had sex with the victim once under a

bridge near the victim’s house. This episode consisted of the victim placing his penis in the

Defendant.

In addition to giving a statement, the Defendant consented to a search of his vehicle

and home. In the Defendant’s home, Det. Doersam found “an application for a criminal

arrest warrant that was filled out and had the victim’s . . . information on it.” This document,

admitted at trial, purports to be a form from the Juvenile Court of Davidson County. It

indicates May 9, 2005 as the date of the crime, and bears the purported signatures of Shirley

Hall, Deputy Clerk Notary, and Leon Ruben, Judge. The document also indicates that the

Defendant swore the application out on May 30, 2007. The crime is described as “State

property was used by [the victim] to go on the internet to view several porn websites.” 5 Also

found was a letter dated January 5, 2007, addressed to the victim stating, in part,

[t]his tape consist[s] of some love messages you left for me on either my

home, work or cell phone. It seems that you will never tell your mother the

truth so since I’m the bad guy listen to them closely. I know you don’t want

your mother or friends to hear them. I have 6 more copies but the one for your

mother have all of them and then some, they are all ready to be mailed unless

you give me a call.

5

The victim testified that he never saw the warrant, however.

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Also found in the Defendant’s home were various items of sexual paraphernalia.

Det. Doersam testified that he asked the Defendant about the “tapes” but stated that

the Defendant never produced such a tape to him. On cross-examination, Det. Doersam

acknowledged that they did not have emails from 2004, 2005, or 2006, the period of time

referred to in the indictment.

The victim also provided Det. Doersam with voice mail messages that the Defendant

left on his phone in 2007. These messages were played for the jury over the defense’s

objection. This Court has listened to these messages but found them largely unintelligible.

Although the record indicates that a transcript was made of these messages and provided to

the jury, the record before us does not contain such a transcript.

In addition to the Defendant’s statement and voice mail messages, the trial court

admitted numerous documents that the Defendant had admitted authoring. As set forth in

more detail below, the trial court ruled that these documents were admissible after

conducting a Tennessee Rule of Evidence 404(b) hearing prior to trial. The majority of these

documents consisted of e-mail correspondence between the Defendant and the victim that

took place after the alleged offenses with which the Defendant was charged. This e-mail

correspondence from the Defendant to the victim includes the following excerpts:6

February 1, 2007: . . . I should be your main concern trying to make me

happy to a point so that I will not mail the tapes. . . . [Y]ou have a decision to

make by next Wednesday, you’re either going to love me truthfully or else I’ll

send the tapes out that Thursday. I have nothing to lose . . . . Do you really

realize who I’ll be sending these tapes to, you’ll never have a girlfriend R[],

you’ll be put out [of] your mother’s house and into the BIG house (jail) you

don’t realize the effect these tapes will cause to you and others. . . . I can’t and

will not continue to go back and forth with you and how you feel, you’re

saying you love me, we have sex, you’re kissing me and then you feel that we

should just be friends and work our way up. . . . You have until next

Wednesday to make a decision[.]

A letter attached to the February 1 e-mail included the following:

Your mother knows I will not let it die and more embarrassment will be on you

all instead of me and especially with these tapes. Not only will she put you out

after hearing the tape you’ll also go to jail. I haven’t let anything go

6

The correspondence also included additional messages not here excerpted.

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everything is still in place. I am hating your black ass every second, minute

and hour of the day, I’ve never hated anyone like this before that’s why I need

to get rid of all this hate. I know it’s wrong to even hate someone so that’s

why this proposal is being made to you. You need to love me as you have said

in the pas[t] to make me feel that way again so that I can get rid of this hate

and once I do I’ll give up the tapes and then walk away from it all but I can’t

with all this hatred inside of me. I know you can do it because you do

whatever you want when and how you want to do it and I know that there’s

some fire still down inside of you that really loves me. As I said once I feel

the love for you again I’ll walk away from it all. That Tuesday when we had

sex I was trying to see if I could feel something then but to know [sic] avail.

I walked away sore for four days because I told you it had been a long time and

that it would hurt. When I feel your hard dick I want to feel the sensation of

really wanting to be with you that burning desire and when you are up inside

of me I want to feel that you are search[ing] to hit that spot as you have before

but now all I can fe[e]l is hatred for you. . . . Let me say this your black ass is

living on a time bomb and I don’t give a damn about you R[] in the pas[t] yes

but now it’s really different and you need to understand that, I’m not playing

around. . . . Not only am I going to send the tape to your mother but a copy to

DCS as well now you know what that will do for your mother’s household. So

you’ll be put out and going to jail and your mother will be investigated with

those two children because I have a nice letter to go in with the tape. . . . R[],

there’s not going to be a girlfriend at all in your life if this is not solved. I will

send a copy of these tapes to every girl I think you’re interested in or that

might be interested in you. . . . I use[d] to just sizzle with smiles when I think

of the time I was taking you to Jack in the box when your dick was stiff and

hard and then we went to the house and had sex, the time when your mother

went to the Tom Joyner show early in the morning when you bucked me on the

big chair and made the both of us cum at the same time you were ever so

gentle, the time when you had me sitting on your lap and when you finally hit

that spot you had we [sic] screaming. . . .the time when we made love and

afterwards you held me in your arms and we sleep through the night, the time

when you bucked me in my living room in the wing back chair, the time at the

hotel when you began to undress me and you were able to get two that night

within an hour and the times when you would get two or three when we would

go to my house for an hour before time for you to go to the church. . . . R[],

you’re the only one that can make this change so its best you contact me

tonight or your life will become a living hell beginning on Monday there will

be three tapes that will go out on Monday and I’m sure you can guess which

ones they are now your mother will have to sign for hers at work or whoever

is at the reception area.

-13-

March 21, 2007: . . . You lied to me about your break on Sunday which

isn’t the first time you lied about you[r] break. . . . I had Attorney Burt to call

your manager about your break on Sunday and why you lie so I just don’t

know. You know you can lose your job but you w[o]n[’]t have to worry about

that long. . . . I can’t continue trying to stop what should have been done at

first and that is send your ass to jail and mail those tapes. . . . I hope you realize

that you lying to me wasn’t hurting me at all it was only putting yourself in

danger of being put out and going to jail. . . . Oh by the way I’m up here this

morning to meet with Attorney Burt at 7:30 so its’ almost that time. BYE.

April 3, 2007: . . . If you really wanted to take me to the hotel that is

what would have happen, your interest has to be in taking me to the hotel also

but not thinking about [your prom date] when we’re together. Your interest

is really not in me it’s about making sure that those tapes aren’t mailed and you

going to jail. . . . Now we had better be together at the hotel Wednesday and

Saturday making hot passionate love or you will not have to worry about the

prom at all.

April 5, 2007: . . . I must say that I am some what happy today after last

night. You really put it on me in a good way it was amazing how you were

able to hit it to the left and right with me riding you. Even though I had to take

it out a couple of times due to the hurting but you put it back in. Now that was

making love and not just having sex. . . . I was thinking about how we would

go to the house before taking you to the learning center and I would push you

against the wall and start taking off your clothes now those were some good

days. You were good at making us both cum when you’re on top and playing

in my ear with your tongue.

May 21, 2007: . . . [Y]our time is running out. . . . I’ve said to you I will

not be played, taken advantage of, will not put up with this as long as I have

in the pas[t] and I will not lose this time around. I am holding to that and once

the time table has come and you have not made things happen then I will walk

and things will beg[i]n] to happen, the tape to your mother and Attorney Burt’s

action.

May 30, 2007: . . . I am moving on with my life without you in it. I

deserve some true happiness in my life without not [sic] a bunch of games of

lies and deceit. I can truly say that I tried and did put my best foot forward

with you and did all that I could for and with you. Now I must move on

because I can’t continue to try and protect you any longer you must pay for the

crime you committed. . . . I’m going downtown this morning to put the next

-14-

step of my plan into action. You haven’t taken me serious at all in any of this

but I can have the item mailed to your work address . . . .

June 17, 2007: . . . I don’t care if we don’t see each other again before

July 2 all I know is if those 3 conditions are not me[]t I’ll see you in court. . . .

You don’t think I’m going to go through with it but I can show you better than

I can tell you especially after all you’ve done to me and how you’ve treated

me. I mean nothing to you except just a get over. We’ll see in the end.

June 18, 2007: . . . What I want to feel is that I’M IN LOVE WITH

YOU AND YOU’RE IN LOVE WITH ME that’s all I want. I want to be

happy like I was last Wednesday and you said it can happen.

June 20, 2007: . . . You show me everyday when we’re apart that I’m

not important in your life when with the situation at hand of you going to jail.

. . . I’ve accepted the fact that you got me into this and I deal with it but

throughout all this time we’re only together for an hour 2, 3 and sometimes 4

times out of the week but can never be together outside and then how you lie

and deceive me but want me to continue to be that good old crazy man and

dismiss the application for warrant.

July 17, 2007: . . . Now I did call you yesterday but no more after I left

work so now I take it you have told your mother that I’ve been calling you and

God knows what else. I know you haven’t told her the truth and it’s a good

thing I did save that message you left yesterday morning and now I can add it

to the tape I have since you have destroyed yours. You talking all about

religion and godly things what you did yesterday was not godly and at your

mother’s house, your lying is not godly so it’s about whatever will benefit you

but trust me it’s all going to catch up with you and remember you’ll be

t[ur]ning 18 in October you’ll be an adult.

(Emphases added). In addition to these (and other) e-mails, the admitted documents include

a handwritten letter dated July 17, 2007, that the Defendant acknowledged having written and

sent to the victim’s mother. It is signed with a female name and requests T. D. to “have [the

victim] stop calling me” and accuses the victim of calling her “ugly names” and asking her

to come to his house for sex. Also admitted was a typewritten letter dated July 18, 2007,

addressed to the victim’s mother and from “Concern Neighbors.” This letter claims that the

authoring wife and her husband were walking in the neighborhood and saw the victim and

his girlfriend “caring [sic] on in the front window ceil [sic] of your home.” The author

expressed concern that “that type of caring [sic] on should be in the privacy of ones home

-15-

and not in public view.” The Defendant admitted that he wrote this letter in an attempt to get

the victim in trouble.

Detective Carrigan also testified at the trial as the State’s final witness. He clarified

that it was not a crime to look at pornography on a state computer.

After the State rested, the trial court denied the defense motion for judgment of

acquittal. The State then made to the jury the following election of offenses as to the counts

in the indictment that alleged sex offenses:7

Count 1, rape, lack of consent, refers to the proof that the defendant

penetrated his own anus with the victim[’s] penis on a date in the late summer,

early fall of 2004 at the defendant’s home on Longleaf Court in Davidson

County. This count represents the first incident of sexual abuse recalled by the

victim.

Count 2, rape, lack of consent, refers to the proof that the defendant

penetrated his own anus with the victim’s penis on the date in the late summer,

early fall in 2004 at the defendant’s home on Longleaf Court in Davidson

County. This count represents the second incident of sexual abuse recalled by

the victim.

Counts 3 and 13. Rape by force of [sic] coercion and rape by fraud,

alternative theor[ie]s. Both counts reflecting the proof that the victim

penetrated the defendant’s anus with his penis on a date after the . . . May 2005

porn incident at the defendant’s home in Longleaf Court in Davidson County.

These counts refer to the first incident of sexual penetration after the defendant

caught the victim viewing pornography.

Counts 4 and 14, rape by force or coercion, and rape by fraud,

alternative theories. Both counts reflecting the proof that the victim penetrated

the defendant’s anus with his penis on a date after the May 2005 porn incident

at the defendant’s home on Longleaf Court in Davidson County. These counts

refer to an incident of anal penetration after the defendant performed oral sex

to cause the victim to have an erection.

Counts 5 and 15, rape by force or coercion, and rape by fraud,

alternative theories. Both counts reflecting the proof that the victim penetrated

7

Because there was only one count of forgery, and because the count referred specifically to the

purported letter from Dr. Pinnock, the State was not required to make an election as to this offense.

-16-

the defendant’s anus with his penis on a date after the May 2005 porn incident

at the defendant’s home on Longleaf Court in Davidson County. These counts

refer to the first incident of sexual contact occurring on a Wednesday before

church during the victim’s Sophomore year.

Counts 6 and 16, rape by force or coercion and rape by fraud,

alternative theories. Both counts reflecting the proof that the victim penetrated

the defendant’s anus with his penis on a date after the May 2005 porn incident.

This count refers to an incident of sexual contact occurring under a bridge near

the victim’s home.

Counts 7 and 17, rape by force or coercion, and rape by fraud,

alternative theories. Both counts reflecting the proof that the victim penetrated

the victim’s anus with his penis on a date after the May 2005 porn incident at

the defendant’s home on Longleaf Court in Davidson County. These counts

refer to an incident of sexual contact during the summer prior [to] the victim’s

junior year in high school.

Counts 8 an[d] 18, rape by force or coercion and rape by fraud,

alternative theories. Both counts reflecting the proof that the defendant

performed oral penetration on the victim[’]s penis on a date after the May 2005

porn incident at the defendant’s home on Longleaf Court in Davidson County.

These count[s] refer to the first incident of the defendant performing oral sex

on the victim prior to their engaging in anal sex.

Counts 9 and 19, rape by force or coercion and rape by fraud,

alternative theories. Both counts reflecting the proof that the defendant

performed oral penetration on the victim’s penis on a date after the May 2005

porn incident at the defendant’s home on Longleaf Court in Davidson County.

These counts refer to the last incident of the defendant performing oral sex on

the victim.

Counts 10, 20 and 24 rape by force or coercion, rape by fraud, and

aggravated statutory rape, alternative theories. All counts reflecting the proof

that the victim penetrated the defendant’s anus with his penis on a date in the

late summer or early fall of 2006 prior to the victim becoming employed at

Academy Sports at the defendant’s – at the defendant’s home on Longleaf

Court in Davidson County. These counts refer to the first incident of sexual

contact after the victim received the forged letter from Dr. P[i]nnock.

-17-

Counts 11, 21 and 25, rape by force or coercion, rape by fraud, and

aggravated statutory rape, alternative theories. All counts reflecting the proof

that the victim penetrated the defendant’s anus with his penis on a date in the

late summer, early fall, 2006 prior to the victim becoming employed at

Academy Sports at the defendant’s home on Longleaf Court in Davidson

County. These counts refer to an incident of sexual contact that occurred a

short time prior to the victim’s 16th birthday. This is the last time they had sex

at this location.

Counts 12, 22 and 26, rape by force or coercion, rape by fraud, and

aggravated statutory rape, alternative theories. All counts reflecting the proof

that the victim penetrated the defendant’s anus with his penis on a date in early

fall of 2006 in the unisex bathroom at Academy Sports[.]8

The defense put on no proof.

After deliberating, the jury convicted the Defendant of all counts as charged. After

a hearing, the trial court sentenced the Defendant as a standard offender to eight years each

on Counts 1 and 2 (both counts charging rape); eleven years each on Counts 13 through 22

(all counts charging rape); two years on Count 23 (charging forgery); and four years each on

Counts 24 through 26 (all counts charging aggravated statutory rape). The trial court then

merged Counts 3 through 12 (which charged rape by force or coercion) with Counts 13

through 22 (which charged rape by fraud), respectively; Count 24 (which charged aggravated

statutory rape) with Counts 10 (rape by force or coercion) and 20 (rape by fraud); Count 25

(aggravated statutory rape) with Counts 11 (rape by force or coercion) and 21 (rape by fraud);

and Count 26 (aggravated statutory rape) with Counts 12 (rape by force or coercion) and 22

(rape by fraud).9 The trial court ordered some of the sentences to be served consecutively,

resulting in an effective sentence of thirty-five years.

On appeal, the Defendant challenges (1) the trial court’s 404(b) ruling; (2) the election

of offenses submitted by the prosecution (including a claim of double jeopardy); (3) the

sufficiency of the evidence; and (4) his sentence.

8

This is the election of offenses delivered verbally by the prosecutor to the jury as reflected in the

transcript of evidence. Although the trial court told the jury that the jury charge would also include the

State’s election of offenses, the record on appeal does not contain either a transcript or a copy of the jury

instructions.

9

Because the judgment orders do not reflect the mergers, this matter is remanded to the trial court

for correction of the judgment orders to accurately reflect the ordered mergers.

-18-

Analysis

404(b) Ruling

The Hearing

Prior to trial, the State filed a notice of its intent to elicit testimony at trial of “other

instances of sexual conduct” between the Defendant and the victim that occurred after the

indicted offenses and in a different county. The State asserted that this evidence would be

relevant to (1) establish the nature of the relationship between the Defendant and the victim;

(2) place certain other evidence into context; (3) “establish the [D]efendant’s opportunity,

motive, intent, and scheme or plan to sexually abuse” the victim; and (4) that it would

complete the factual background so as to “avoid a contextual or chronological void.” The

evidence for which the State was seeking a ruling of admissibility included e-mails between

the Defendant and the victim, letters written by the Defendant but purporting to be from other

authors, and an application for arrest warrant from juvenile court. The Defendant’s statement

to the police was not proffered by the State in this context.

The trial court held a hearing, and Detective Carrigan testified. Det. Carrigan

explained that they had been investigating a sexual relationship between the Defendant and

the victim that spanned approximately three years and that began in Davidson County and

then moved to Sumner County. Det. Carrigan described the sex acts occurring in both

counties as “the same types of sex acts.” Det. Carrigan acknowledged that, by the time they

became aware of the alleged offenses, the Defendant and the victim were no longer having

sex in Davidson County. Det. Carrigan also acknowledged that the e-mails and other

documents that he had been provided had been created after the alleged sex acts had moved

to Sumner County. According to Det. Carrigan, however, “some of those e-mails and other

stuff made reference to issues that had occurred in Davidson County.”

Det. Carrigan testified that the Defendant acknowledged his authorship of the

collected documents during the interview and also “acknowledged having made comments

in those e-mails and other items for the purpose of intimidating and coercing the victim into

an ongoing sexual relationship.”

Arguing for the admission of the e-mails and other documents, the prosecutor

explained,

The physical evidence collected is dated outside the time frame specifically of

our indictment, and it’s dated within the time frame of the acts that occurred

in Sumner County. However it’s very much of a similar nature and

-19-

corroborates what the child will be testifying to with regard to how [the

Defendant] manipulated and coerced [the victim] here in Davidson County.

The prosecutor also claimed that, because the victim did not come forward until after the

relationship had moved to Sumner County, “it would leave a conceptual void for the jury to

think that it just stopped here in Davidson County and then some months later the child

disclosed.”

The defense objected to the admissibility of the documents to the extent they

concerned “any activity in Sumner County.” Defense counsel argued that the State was

seeking to use this evidence “to show that [the Defendant] did this so you know he did that”

and to “have a pile-on effect,” all in direct contravention of Tennessee Rule of Evidence

404(b).

The trial court ruled as follows:

I do find that by clear and convincing proof these e-mails, the evidence that

has been introduced here occurred, the statements made by [the Defendant] in

terms of acknowledging sexual acts in Davidson County and Sumner County

occurred. I do think obviously there are material issues other than just piling

on . . . more than just trying to or at all trying to introduce propensity evidence.

I mean, it’s the same type allegations, the same type conduct that’s involved

here in these allegations of the indictment here in Davidson County. The

question is should the jury hear that at any point after September 30th, 2006,

did anything occur between [the Defendant] and the alleged victim in terms of

other sexual acts, other communications, other interplay at all in terms of

conduct between them. Obviously it did. So I don’t think the State is

prohibited from ending any inquiry with the alleged victim or the detectives at

9-30-06 because there obviously are material issues. Is this a violation of the

law? Was there an intentional knowing rape of the alleged victim or an

aggravated statutory rape? Those letters, e-mails that I’ve read could if the

jury believes them – and, again, there’s been no contradictory evidence here

offered today for me to consider – but if they believed that those came from

[the Defendant] to the alleged victim and back and forth, it in the Court’s

opinion would explain quite a bit possibly as to why the alleged victim didn’t

do something sooner or what were these threats about. It explains all of that

to much of a degree. So you have proof of motive of him to prevent the

alleged victim from disclosing intent. [sic] That would show, you know, why

would he do or say those things in the e-mails, [the Defendant], if he weren’t

concerned about the alleged victim reporting any incidents from Davidson

County. It explains all that if believed. Is it prejudicial? Sure. I wouldn’t

-20-

want the jury seeing some of those things in those e-mails if I was on trial. I

understand that. But they’re extremely probative for those reasons I’ve just

explained; motive, intent, explaining the ongoing relationship between the

defendant and the alleged victim. It has in the Court’s opinion admissions that

can be argued or viewed as relevant to the charges on trial for Davidson

County. It corroborates things that the State is alleging in the indictment and

mentions specifically an ongoing two and a half year sexual relationship. So

it’s extremely probative, and that probative value in the Court’s opinion is not

outweighed by the danger of not prejudice but unfair prejudice.

In sum, the trial court ruled admissible two letters written by the Defendant but purporting

to be from someone else; fifteen pieces of e-mail, some including multiple messages, from

the Defendant to the victim (and some of these including messages from the victim to the

Defendant); and an application for an arrest warrant in juvenile court prepared by the

Defendant. All of these items were created after the periods of time referenced in the

indictment.

On appeal, the Defendant argues that the trial court committed reversible error in

admitting this proof because it referred to conduct that was not on trial; it “shed no light on

any offenses alleged to have occurred during the indicted period”; and the admitted e-mails

and documents “could not be used to force, coerce, or [de]fraud [the victim] into engaging

in sexual activity prior to the[ir] construction.”

Analysis

Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other purposes.”

Tenn. R. Evid. 404(b). “Other purposes” include motive, intent, guilty knowledge, identity

of the defendant, absence of mistake or accident, a common scheme or plan, completion of

the story, opportunity, and preparation. State v. Berry, 141 S.W.3d 549, 582 (appx) (Tenn.

2004); see also State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000) (holding that “contextual

background evidence, which contains proof of other crimes, wrongs, or acts, may be offered

as an ‘other purpose’ under Rule 404(b) when exclusion of that evidence would create a

chronological or conceptual void in the presentation of the case and that void would likely

result in significant jury confusion concerning the material issues or evidence in the case”);

State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).

Even where the evidence is offered for “other purposes,” however, several conditions

must be satisfied for its admission:

-21-

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record the

material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear and

convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Where the trial court substantially complies with this procedure, we

will not overturn its decision to admit the evidence absent an abuse of discretion. See State

v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In this case, the trial court substantially

complied with Rule 404(b)’s procedure and ruled that “motive, intent, and to explain the

ongoing relationship between the Defendant and the victim” were the purposes for which the

evidence of his subsequent conduct was admissible.

Initially, we address the State’s argument that this evidence of other crimes, wrongs,

or acts was “apparently admitted” pursuant to the hearsay exception for admissions by a party

opponent. See Tenn. R. Evid. 803(1.2). The State asserts in its brief that “[i]t is questionable

whether Rule 404(b) may be invoked to exclude a defendant’s statements,” and alleges that

it “has been unable to locate a case that says it can.” To the contrary, this Court has stated

clearly and unequivocally that “[t]he fact that the prior bad acts evidence is contained within

a defendant’s statement to the police concerning the offense at trial does not relieve the trial

court of the duty to conduct a Rule 404(b) hearing to determine the admissibility of the

admissions.” State v. Michael Bailey, No. W2005-01815-CCA-R3-CD, 2007 WL 763212,

at *3 (Tenn. Crim. App. Mar. 13, 2007); State v. Debra Elaine Kirk, No. E2004-01263-CCA-

R3-CD, 2005 WL 2402921, at *11 (Tenn. Crim. App. Sept. 30, 2005) (same). See also, e.g.,

State v. Thacker, 164 S.W.3d 208, 239 (appx) (Tenn. 2005) (noting that, “while [other bad

acts] evidence usually does not come in the form of statements or confessions made by the

defendant, there exists no valid reason to make an exception to the requirements [of Rule

404(b)] for prior bad act evidence disclosed in a defendant’s confession”); State v. Cyntoia

Denise Brown, No. M2007-00427-CCA-R3-CD, 2009 WL 1038275, at *24 (Tenn. Crim.

App. Apr. 20, 2009) (reviewing admissibility of the defendant’s statements under Rule

404(b)). And, we point out that the text of the relevant hearsay exception provides that

admissions “are not excluded by the hearsay rule.” Tenn. R. Evid. 803 (emphasis added).

Admissions are subject to being excluded by other rules of evidence. State v. Lewis, 235

S.W.3d 136, 145 (Tenn. 2007) (recognizing that a defendant’s statements are admissible

pursuant to Rule 803(1.2) but are “subject to exclusion . . . by other rules of evidence”). For

-22-

instance, if an admission is irrelevant, it is subject to being excluded pursuant to Tennessee

Rule of Evidence 402. Rule 404(b) may also require the exclusion of a defendant’s

admission.

Furthermore, as set forth above, the trial court in this case conducted a 404(b) hearing

and admitted the e-mails etc. pursuant to that Rule. Because the trial court complied

substantially with the procedural requirements of 404(b), we may reverse its decision only

upon finding that the trial court abused its discretion in ruling the evidence admissible. See

Dubose, 953 S.W.2d at 652.

Turning to our review of the trial court’s ruling, it is helpful to distinguish between

the “crimes, wrongs, or acts” to which the admitted evidence refers. The e-mails from the

Defendant to the victim established two distinct types of “other crimes, wrongs, or acts”:

(1) the Defendant’s 2007 threats to the victim; and (2) sexual acts between the Defendant and

the victim other than those charged.10 We agree with the trial court that the evidence of the

Defendant’s threats to the victim was not offered to establish the Defendant’s character and

action in conformity therewith. Rather, the proof of the Defendant’s 2007 threats to the

victim was offered to demonstrate the Defendant’s underlying motives and intentions with

regard to his relationship with the victim. It also was offered to establish how the Defendant

had been able to conduct a sexual relationship with a teenaged victim who was otherwise in

a position to avoid or defend himself against the Defendant’s advances. Proof of the

Defendant’s threats delivered after the charged offenses was also relevant to explaining the

significant gap in time between the date of the last charged offense and the date on which the

victim finally reported the Defendant’s crimes to the police.

The more troubling aspect of this evidence is its numerous references to sexual

penetration between the Defendant and the victim that occurred outside the time frame

charged in the indictment. As this Court has previously observed, one danger of admitting

evidence of uncharged acts is that a jury will convict of charged behavior on the basis that,

if the defendant engaged in similar conduct at a different time, he must have committed the

crimes on trial. See, e.g., State v. Gilley, 297 S.W.3d 739, 757 (Tenn. Crim. App. 2008);

State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995); see also State v. James, 81

S.W.3d 751, 762 (Tenn. 2002) (recognizing that “[t]here can be little doubt that a trier of fact

will view an individual with a substantial criminal history as more likely to have committed

a crime than an individual with little or no past criminal history”). Indeed, our Supreme

Court explicitly has recognized that

10

The letters and application for arrest warrant were also evidence of threatening behavior that the

Defendant engaged in after the indicted offenses.

-23-

The general rule excluding evidence of other crimes is based on the

recognition that such evidence easily results in a jury improperly convicting a

defendant for his or her bad character or apparent propensity or disposition to

commit a crime regardless of the strength of the evidence concerning the

offense on trial. Such a potential particularly exists when the conduct or acts

are similar to the crimes on trial.

State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994) (citation omitted). See also Spicer v.

State, 12 S.W.3d 438, 448 (Tenn. 2000) (recognizing that “a real probability exists that the

jury could be overwhelmed by the sheer volume of prejudicial evidence and that the jury

could be tempted to convict based upon a defendant’s propensity to commit crimes rather

than convict solely upon evidence relating to the charged offense”).

A second danger is “that the admission of other-acts evidence poses a substantial risk

that a trier of fact may convict the accused for crimes other than those charged.” State v.

James, 81 S.W.3d 751, 758 (Tenn. 2002). And, as our Supreme Court has recently

emphasized, “[a]lthough ‘propensity evidence’ is relevant, the risk that a jury will convict

for crimes other than those charged – or that, uncertain of guilt, it will convict anyway

because a bad person deserves punishment – creates a prejudicial effect that outweighs

ordinary relevance.” State v. Rodriguez, 254 S.W.3d 361, 375 (Tenn. 2008) (quoting Old

Chief v. United States, 519 U.S. 172, 181 (1997)).

In this case, however, the vast majority of the Defendant’s messages to the victim

concern his feelings about the victim and his attempts to manipulate the victim into

continuing their sexual relationship. These writings assisted the jury to understand why the

victim – a teenager rather than a young child, and who did not live with his abuser – did not

take measures to stop or avoid the abuse. They also assisted the jury to understand that the

victim did not sit idly by for many months after the charged offenses stopped before turning

to authorities, but that the victim was still under the Defendant’s influence until mere days

before he reported the offenses.

Moreover, even if the trial court abused its discretion in admitting the e-mail

documents (or portions thereof) that referred to uncharged sexual acts, the Defendant is not

entitled to relief if the error is harmless. See Rodriguez, 254 S.W.3d at 371-72. It is the

Defendant’s burden to demonstrate that the error “more probably than not affected the

judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b); see

Rodriguez, 254 S.W.3d at 372. In determining the effect of a 404(b) evidentiary error, we

consider the entire record on appeal, and “[t]he greater the amount of evidence of guilt, the

heavier the burden on the defendant to demonstrate that a non-constitutional error involving

a substantial right more probably than not affected the outcome of the trial.” Rodriguez, 254

-24-

S.W.3d at 372. Further,

When an appellate court undertakes a harmless error analysis its

purpose is to ascertain the actual basis for the jury’s verdict. An inquiry into

harmless error does not turn upon the existence of sufficient evidence to affirm

a conviction or even a belief that the jury’s verdict is correct. To the contrary,

the crucial consideration is what impact the error may reasonably be taken to

have had on the jury’s decision-making. Where an error more probably than

not had a substantial and injurious impact on the jury’s decision-making, it is

not harmless.

Id. (citations omitted).

In this case, the jury heard not only the victim’s testimony about the charged acts of

sexual penetration between him and the Defendant, but also had before it the Defendant’s

lengthy statement to law enforcement in which he confessed to repeated sex acts with the

victim over the period of time charged in the indictment.11 The evidence against the

Defendant simply was overwhelming without regard to the Defendant’s e-mail messages to

the victim. We are confident that the evidence admitted pursuant to Rule 404(b) had, in the

final analysis, little impact on the jury’s decision-making. Therefore, we hold that any error

by the trial court with respect to the admissibility of the contested documents was harmless

and entitles the Defendant to no relief.

11

As to those portions of the Defendant’s statement that referred to unindicted sex acts, the trial

court delivered the following contemporaneous instruction to the jury:

[I]f from this . . . statement, you find that the defendant has committed any alleged crime or

crimes other than that for which he is on trial here in this jurisdiction or any mention about

any other jurisdiction, you may not consider that evidence to prove his disposition that he

committed the alleged crimes that he’s on trial for. This evidence, if you consider it at all,

may only be considered by you for the limited purpose of determining whether it provides

motive. That is, such evidence may be considered by you if it is evidence to show a motive

for the defendant for the commission of the offense[s] presently charged, or of defendant’s

intent. That is, such evidence may be considered by you if it tends to establish that the

defendant actually intended to commit the crime for which he is presently charged or to

explain the ongoing or past relationship between the defendant and the alleged crime [sic]

during the periods of time that you have heard about during the course of this trial.

So that evidence mentioning other alleged events, if considered by you for any

purpose, must not be considered for any purpose other than what I’ve specifically stated

here.

-25-

Election of Offenses and Double Jeopardy

The Defendant also raises challenges to the State’s election of offenses. First, the

Defendant complains that the State’s election “significantly and effectively alter[ed] the

indictment as to time, place, and act.” The Defendant grounds this argument on a

comparison between the indictment and the State’s alleged response to the Defendant’s

motion for bill of particulars. The record on appeal, however, does not contain the State’s

response. Although the Defendant attached to his brief a copy of a document titled “State’s

Response to Request for Bill of Particulars,” attachments to a brief are not part of the

appellate record. See Tenn. R. App. P. 24(a); Willis v. Tenn. Dep’t of Corr., 113 S.W.3d

706, 709 n.2 (Tenn. 2003); State v. Price, 46 S.W.3d 785, 812 (Tenn. Crim. App. 2000).

Tennessee Rule of Appellate Procedure 24 provides that it is the appellant’s duty to

“have prepared a transcript of such part of the evidence or proceedings as is necessary to

convey a fair, accurate and complete account of what transpired with respect to those issues

that are the bases of appeal.” Tenn. R. App. P. 24(b). When the record does not contain the

information necessary for our review, we presume that the trial court’s ruling on the issue is

correct. See State v. Griffis, 964 S.W.2d 577, 592-93 (Tenn. Crim. App. 1997). We,

nevertheless, have compared the State’s election of offenses with the indictment, both of

which are in the record on appeal, and discern no significant alteration as to time, place, or

act. While we note that the State’s election did not refer to specific dates other than the

Computer Incident, and, perhaps, could be problematic, the Defendant has failed to

demonstrate that he was thereby prejudiced because the record contains neither the closing

arguments nor the trial court’s charge to the jury, either of which may have clarified this

omission. The Defendant is not entitled to relief on this issue.

Second, the Defendant asserts that

[t]he Election of Offenses served to expose the Defendant to being tried

and/or sentenced twice for the same offenses listed within the Election, as well

as expose him to risk of being tried in another County for the same offenses

alleged in this cause. The counts lack particularity and specificity and appear

to be patched together.

This assertion attempts to raise two issues: election of offenses and double jeopardy. The

Defendant has waived these issues by failing to cite to any legal authority whatsoever. Tenn.

Ct. Crim. App. R. 10(b); see also State v. Watson, 227 S.W.3d 622, 648 (Tenn. Crim. App.

2006); State v. McCary, 119 S.W.3d 226, 242-3 (Tenn. Crim. App. 2003); State v. Chance,

778 S.W.2d 457, 462 (Tenn. Crim. App. 1989). We also fail to understand how the State’s

election of offenses regarding crimes committed in Davidson County could expose the

-26-

Defendant to prosecution in another county for the same crimes. Pursuant to article I, section

9 of the Tennessee Constitution, an accused must be tried in the county in which the crime

was committed. See State v. Young, 196 S.W.3d 85, 101 (Tenn. 2006); see also Tenn. R.

Crim. P. 18(a). The Defendant has not demonstrated that he is entitled to relief on these

issues.

Finally, the Defendant contends that “the Prosecutor erred in making the oral and anal

penetration two separate counts, even though the testimony adduced at trial shows that the

oral sex was used simply to help facilitate [the victim] getting an erection.” Again, the

Defendant has failed to cite to any legal authority. See Tenn. Ct. Crim. App. R. 10(b).

Moreover, our Supreme Court has made clear that different types of sexual penetration, even

if committed during a single episode between perpetrator and victim, are separate offenses

for double jeopardy purposes. See State v. Phillips, 924 S.W.2d 662, 664-65 (Tenn. 1996).

The Defendant is entitled to no relief on this issue.

Sufficiency of the Evidence

The Defendant contends that the evidence is not sufficient to sustain Counts 1 and 3

through 26 of the indictment. The State disagrees.

Our standard of review regarding sufficiency of the evidence is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds

a defendant guilty, the presumption of innocence is removed and replaced with a presumption

of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant

has the burden on appeal of demonstrating why the evidence was insufficient to support the

jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does

not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits

the testimony of the witnesses for the State and resolves all conflicts” in the testimony and

all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence

and all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation

omitted). This standard of review applies to guilty verdicts based upon direct or

circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State

v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

As charged in Count 1, the Defendant was convicted of rape consisting of the

“unlawful sexual penetration . . . of the defendant by a victim” where the penetration “is

accomplished without the consent of the victim and the defendant knows or has reason to

-27-

know at the time of the penetration that the victim did not consent.” Tenn. Code Ann. § 39-

13-503(a)(2) (2003). Sexual penetration is statutorily defined as including anal intercourse.

Id. § 39-13-501(7) (2003). At trial, the victim testified that his first episode of sexual contact

with the Defendant began while he was asleep. He awoke in the Defendant’s spare bedroom

to find the Defendant on top of him, facing away, and “grinding back and forth” while the

victim’s “privates were out” and “[i]n [the Defendant’s] anal region.” The victim described

the contact as “[s]kin to skin.” The Defendant argues to this Court that the victim’s

testimony does not establish sexual penetration. However, when asked by the police about

his initial sexual encounter with the victim, the Defendant described their contact as “his

penis in me.” (Emphasis added). He also admitted to Det. Carrigan that his initial sexual

contact with the victim included anal intercourse. Together, this proof is sufficient to

establish sexual penetration. The victim’s testimony that he was asleep when the Defendant

began his sexual assault satisfies the element that the Defendant had reason to know that the

victim did not consent. In sum, the proof is sufficient to establish the crime of rape.

Therefore, we affirm the Defendant’s conviction of rape as charged in Count 1 of the

indictment.

The Defendant does not contest the sufficiency of the evidence supporting his

conviction of rape accomplished without the victim’s consent as charged in Count 2 of the

indictment, which referred to the second episode of anal sex between the Defendant and the

victim. The victim’s testimony was specific as to this incident and is sufficient to support

the conviction. We therefore affirm the Defendant’s conviction of rape as charged in Count

2 of the indictment.

As to his convictions for rape by force or coercion and rape by fraud, the Defendant

argues that “[t]here was no proof that the Defendant used force, coercion, or fraud to

unlawfully sexually penetrate [the victim] in Davidson County, Tennessee.” As to Counts

6 and 16, the Defendant also contends that the State failed to prove venue. The Defendant

makes no particular argument as to the sufficiency of the evidence supporting his remaining

convictions.

In the crime of rape by force or coercion, coercion is statutorily defined as the “threat

of kidnapping, extortion, force or violence to be performed immediately or in the future.”

Tenn. Code Ann. § 39-13-501(1) (Supp. 2005, 2006). This Court has held that this definition

is satisfied when a defendant threatens to expose a victim’s activities that could result in

criminal prosecution. See State v. McKnight, 900 S.W.2d 36, 50 (Tenn. Crim. App. 1994).

In this case, the victim testified that, after the Computer Incident, the Defendant told him that

he “could go to jail no less than seven years” for looking at pornography on a state computer.

The victim thereafter resumed his sexual relationship with the Defendant the following

school year, explaining that they had sex every Wednesday after school. The proof

-28-

established that the Defendant threatened the victim with the Computer Incident repeatedly

during the course of the sexual relationship. According to the victim, he understood the

Defendant as making these statements in order to have the victim cooperate with their sexual

relationship. The Defendant continued to threaten him every time the victim tried to end

their sexual relationship. We hold that these threats satisfy the definition of “coercion” as

used in the rape statute. Moreover, at the time the victim began working at Academy Sports,

the Defendant had threatened to expose the victim’s homosexual activities with him. This

formed an additional factual basis for a finding of coercion as to the offenses committed

during that time frame. See McKnight, 900 S.W.2d at 50; State v. Steven Craig Fults, No.

M2004-02092-CCA-R3-CD, 2006 WL 1896356, at *12 (Tenn. Crim. App. 2006).

Rape by fraud is committed when the accused accomplishes sexual penetration with

the victim by fraud. Tenn. Code Ann. § 39-13-503(a)(4) (Supp. 2005, 2006). Fraud is

defined for purposes of our criminal code as follows: “‘Fraud’ means as used in normal

parlance and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge,

and shall be broadly construed to accomplish the purposes of this title.” Id. § 39-11-

106(a)(13) (2006). This Court has held that a person commits rape by fraud

when he or she engages in sexual penetration that is accomplished by fraud.

The fraudulent conduct could have included trickery, subterfuge, or some other

misrepresentation by the [accused] that gave the victim[] a false impression

and allowed or aided [the accused] in the accomplishment of the sexual

penetration.

State v. Raymond Mitchell, No. M1996-00008-CCA-R3-CD, 1999 WL 559930, at *6 (Tenn.

Crim. App. July 30, 1999). This Court also has recognized that “[t]he fraud may go directly

to the sexual penetration itself, or may relate to the inducement of the sexual act.” Id. (citing

Tenn. Code Ann. § 39-11-106(a)(9)(A) (1991); State v. Tizard, 897 S.W.2d 732, 741-42

(Tenn. Crim. App. 1994)). This Court recently affirmed convictions of rape by fraud where

the defendant told the fourteen-year-old victim “that she needed to have sex with him to

grant him sufficient [magical] power to heal her mother and [sister] after they had surgery

[and that] otherwise they would be crippled or die” and also promised that he could give the

victim “magic powers through sex.” State v. Marcos Enrique, Sr., No. M2009-02319-CCA-

R3-CD, 2011 WL 4529643, at *16 (Tenn. Crim. App. Sept. 29, 2011).

In this case, the Defendant repeatedly threatened the victim with prosecution and jail

because of the Computer Incident. As set forth above, the victim testified that the Defendant

told him that he “could go to jail no less than seven years” for the Computer Incident. Det.

Carrigan testified that there is no criminal offense for viewing pornography on a state

computer. We have confirmed that, based upon state law, the victim – who was a minor at

-29-

the time – was not at risk of being imprisoned for seven years or more because he looked at

pornography on the Defendant’s work computer. Accordingly, we hold that the Defendant’s

threatening the victim with jail for the Computer Incident was fraudulent.

Aggravated statutory rape is defined as “the unlawful sexual penetration of a victim

by the defendant, or of the defendant by the victim when the victim is at least thirteen (13)

but less than eighteen (18) years of age and the defendant is at least ten (10) years older than

the victim.” Tenn. Code Ann. § 39-12-506(c) (2006). In this case, the proof established that

the victim was sixteen years old at the time of the aggravated statutory rapes and the

Defendant was in his forties.

Turning to the Defendant’s specific convictions, the jury convicted the Defendant of

rape by force or coercion on Count 3 and of rape by fraud on Count 13. According to the

State’s election, both of these Counts referred to the first instance of the victim penetrating

the Defendant’s anus with his penis at the Defendant’s home after the Computer Incident.

The victim testified that, after the Computer Incident, he resumed having sex with the

Defendant. The victim described these encounters as occurring on Wednesdays during his

sophomore year and taking place at the Defendant’s residence. The Defendant’s statement

provided similar details. Additionally, this episode was alleged to have occurred after the

Computer Incident, upon which the Defendant’s threats were based. The Defendant’s threats

to have the victim jailed constituted coercion and were also fraudulent because the alleged

basis for the threat – the victim’s accessing pornography on the Defendant’s computer – was

not a felony offense. We therefore hold that the proof is sufficient to support the Defendant’s

convictions of Count 3 and 13.

The jury also convicted the Defendant of rape by force or coercion on Count 4 and of

rape by fraud on Count 14. Both of these Counts referred to, according to the State’s

election, the victim penetrating the Defendant’s anus with his penis after the Computer

Incident, occurring at the Defendant’s home, and “after the [D]efendant performed oral sex

to cause the victim to have an erection.” In addition to the proof set forth above, the proof

in support of this offense consisted of the victim’s testimony that the Defendant performed

oral sex on him between five and ten times, and the Defendant’s admission in his statement

that he performed oral sex twice on the victim while they were at the Defendant’s house.

Therefore, the proof is sufficient to support each of these convictions.

We are constrained to point out that the State’s election as to Counts 4 and 14, insofar

as the incomplete record before us reflects, was ineffective to narrow the jury’s consideration

to a single incident of anal sex because the proof established up to ten incidents of

preliminary oral sex. As our Supreme Court has made clear, “when the evidence indicates

[that] the defendant has committed multiple offenses against a victim, the prosecution must

-30-

elect the particular offense as charged in the indictment for which the conviction is sought.”

State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999) (emphasis added). This requirement is

founded in part upon the Tennessee Constitution. State v. Kendrick, 38 S.W.3d 566, 568

(Tenn. 2001). Additionally, our Supreme Court has emphasized that

there should be no question that the unanimity of twelve jurors is required in

criminal cases under our state constitution. A defendant’s right to a unanimous

jury before conviction requires the trial court to take precautions to ensure that

the jury deliberates over the particular charged offenses, instead of creating a

“patchwork verdict” based on different offenses in evidence.

State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993) (quotation marks and citation omitted).

Because the victim testified that the Defendant performed oral sex on him between

five and ten times, it is possible that the jurors could have been individually considering as

many as ten different offenses for Counts 4 and 14. It is also possible, however, that the

State eliminated this risk during its closing argument. This Court has recognized that a State

may effectively elect its offenses via closing argument. See, e.g., State v. Warren Curnutt,

No. M2006-00552-CCA-R3-CD, 2007 WL 1482390, at *6 (Tenn. Crim. App. May 22,

2007); State v. William Dearry, No. 03C01-9612-CC-00462, 1998 WL 47946, at *13 (Tenn.

Crim. App. Feb. 6, 1998). Because the Defendant has failed to include the closing arguments

in the record on appeal, we presume that the trial court’s actions were correct in this regard.

See Griffis, 964 S.W.2d at 592-93.

Moreover, the record is inadequate to allow our review under the plain error doctrine.

We may grant relief for plain error only where five prerequisites are satisfied: “(1) the

record clearly establishes what occurred in the trial court, (2) a clear and unequivocal rule

of law was breached, (3) a substantial right of the accused was adversely affected, (4) the

accused did not waive the issue for tactical reasons, and (5) consideration of the error is

necessary to do substantial justice.” State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010) (quoting

State v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008)) (emphasis added). Additionally, “[i]t is

the defendant’s burden to convince this Court that plain error exists, and we need not

consider all five factors ‘when it is clear from the record that at least one of them cannot be

satisfied.’” Id. (quoting State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). In this case,

the record on appeal does not clearly establish what occurred in the trial court because the

transcript of some of the relevant proceedings is not before us.12 Accordingly, the first of the

12

The record on appeal in this case was supplemented by the Defendant twice, the first time on May

3, 2011, and the second time on December 27, 2011 – after oral argument. In spite of these

supplementations, the record remains incomplete.

-31-

five plain error prerequisites is not satisfied, and the Defendant therefore is not entitled to

relief under plain error for any inadequacy in the State’s election as to the offense for which

it was seeking a conviction in Counts 4 and 14.

The jury also convicted the Defendant of rape by force or coercion on Count 5 and of

rape by fraud on Count 15. According to the State’s election of offenses, the State described

this crime as “the victim penetrated the defendant’s anus with his penis on a date after the

[Computer] [I]ncident” at the Defendant’s home, adding that the counts referred to “the first

incident of sexual contact occurring on a Wednesday before church during the victim’s

Sophomore year.” The proof in support of this offense consisted of the victim’s testimony

that he was at the Defendant’s house “pretty much every Wednesday all of [his] sophomore

year” and that he and the Defendant “would have sex every Wednesday at [the Defendant’s]

house.” This episode was alleged to have occurred after the Computer Incident, and the

Defendant’s threats to have the victim jailed constituted coercion and were also fraudulent

because the alleged basis for the threat – the victim’s accessing pornography on the

Defendant’s computer – was not a felony offense. We hold that this proof is sufficient to

support the Defendant’s convictions of Counts 5 and 15. We recognize that this election

appears to refer to the same incident elected for Counts 3 and 13 and that a single instance

of rape cannot be elected to support multiple (independent) charges of rape because

principles of double jeopardy prohibit the imposition of multiple punishments for a single

offense. See State v. Watkins, __ S.W.3d __, __, 2012 WL 758912, at *7, 12 (Tenn. 2012).

As with the election for Counts 4 and 14, however, the State may have cured this problem

during its closing argument. For the same reasons set forth above, the Defendant is not

entitled to relief for any inadequacy in the State’s election as to the offense for which it was

seeking a conviction on Counts 5 and 15.

The jury also convicted the Defendant of rape by force or coercion on Count 6 and of

rape by fraud on Count 16. The Defendant claims that the State failed to prove venue as to

these two counts. Both of these counts referred to, according to the State’s election, “an

incident of sexual contact [consisting of the victim penetrating the Defendant’s anus with the

victim’s penis] occurring under a bridge near the victim’s home” after the Computer

Incident. The Defendant admitted to the police that the victim placed his penis in him while

they were near a bridge near the victim’s house. The letter purporting to be from Dr. Pinnock

was addressed to the victim at his house on North Summerfield Drive in Madison,

Tennessee. We take judicial notice that Madison, Tennessee, is located in Davidson County.

Venue need be established by only a preponderance of the evidence. Tenn. Code Ann. § 39-

11-201(e) (2006); Young, 196 S.W.3d at 101. We hold that the evidence is sufficient to

establish venue as to these convictions. We also hold that the proof is sufficient to establish

that the Defendant accomplished sexual penetration by coercion, as charged in Count 6, and

by fraud, as charged in Count 16. This episode was alleged to have occurred after the

-32-

Computer Incident, and the Defendant’s threats to have the victim jailed constituted coercion

and were also fraudulent because the alleged basis for the threat – the victim’s accessing

pornography on the Defendant’s computer – was not a felony offense. Therefore, we affirm

the Defendant’s convictions on Counts 6 and 16 of the indictment.

The jury also convicted the Defendant of rape by force or coercion on Count 7 and

rape by fraud on Count 17. In its election of offenses, the State described this crime as the

victim penetrating the Defendant’s anus with his penis at the Defendant’s home and which

occurred “during the summer prior [to] the victim’s junior year in high school.” According

to the victim, his sexual relationship with the Defendant continued into the summer following

his sophomore year. This episode was alleged to have occurred after the Computer Incident,

and the Defendant’s threats to have the victim jailed constituted coercion and were also

fraudulent because the alleged basis for the threat – the victim’s accessing pornography on

the Defendant’s computer – was not a felony offense. We hold that the proof is therefore

sufficient to support the Defendant’s convictions of Count 7 and Count 17. For the reasons

set forth above, we must presume that the trial court’s ruling on the State’s election of these

offenses was correct.

The jury also convicted the Defendant of rape by force or coercion on Count 8 and

rape by fraud on Count 18. The offense elected for these counts was “the first incident of the

defendant performing oral sex on the victim prior to their engaging in anal sex.” And, again,

this offense was alleged to have occurred after the Computer Incident and at the Defendant’s

home. The Defendant admitted to having performed oral sex on the victim. The victim also

testified that the Defendant performed oral sex on him. Sexual penetration sufficient to

constitute rape includes fellatio. Tenn. Code Ann. §39-13-501(7) (Supp. 2005, 2006). For

the same reasons set forth above, the proof is sufficient to establish that the Defendant

performed fellatio on the victim at the time and place alleged. Also, for the same reasons set

forth above, the proof is sufficient to establish that the Defendant committed the fellatio by

coercion and fraud. Accordingly, we affirm the Defendant’s convictions on Counts 8 and

18 of the indictment. We also hold that the State’s election as to this offense was effective

because it referred to the single “first” episode of oral sex.

The jury also convicted the Defendant of rape by force or coercion on Count 9 and

rape by fraud on Count 19. According to the State’s election of offenses, these counts

referred to the “last incident” of the Defendant performing oral sex on the victim at the

Defendant’s home and after the Computer Incident. As set forth above, the victim testified

about the Defendant performing oral sex on him and the Defendant admitted to doing same.

We hold that the proof is sufficient to support these convictions. We also hold that the

State’s election as to this offense was effective because it referred to the single “last” episode

of oral sex.

-33-

The jury also convicted the Defendant of rape by force or coercion on Count 10, rape

by fraud on Count 20, and aggravated statutory rape on Count 24. The State’s election of

offenses described this incident as anal sex at the Defendant’s home “on a date in the late

summer or early fall of 2006 prior to the victim becoming employed at Academy Sports” and

as “the first incident of sexual contact after the victim received the forged letter from Dr.

P[i]nnock.” The proof established that the victim was employed by Academy Sports shortly

before he turned seventeen years old in October 2006. The letter purportedly from Dr.

Pinnock was dated June 8, 2006. This description of the alleged crime therefore narrows the

time frame to several weeks and specifies the incident further as the “first” after the victim

got the forged letter. The victim testified generally that his Wednesday sexual encounters

with the Defendant occurred during his sophomore year and the following summer. We hold

that the proof is sufficient to support these convictions and that the State’s election was

adequate.

The jury also convicted the Defendant of rape by force or coercion on Count 11, rape

by fraud on Count 21, and aggravated statutory rape on Count 25. In its election of offenses,

the State described this offense as anal sex at the Defendant’s home “on a date in the late

summer, early fall, 2006 prior to the victim becoming employed at Academy Sports” and,

further, as occurring “a short time prior to the victim’s 16th birthday. This is the last time

they had sex at this location.” The proof established that (1) the victim turned sixteen in

October 2005 and (2) the victim became employed by Academy Sports shortly before he

turned seventeen in October 2006. Thus, the election referred to a single event as occurring

in two different years. However, the election clarified that the episode referred to was the

“last time they had sex at this location.” Moreover, as with the election for Counts 4 and 14

and Counts 5 and 15, the State may have further clarified the incident during its closing

argument. We hold that the proof is sufficient to support these convictions and, further, that,

for the same reasons set forth above, the Defendant is not entitled to relief for any inadequacy

in the State’s election as to these offenses. Therefore, we affirm the Defendant’s convictions

on Counts 11, 21, and 25.

Finally, the jury convicted the Defendant of rape by force or coercion on Count 12,

rape by fraud on Count 22, and aggravated statutory rape on Count 26. In its election, the

State described this incident as “the victim penetrated the defendant’s anus with his penis on

a date in early fall of 2006 in the unisex bathroom at Academy Sports[.]” The victim testified

that he and the Defendant had sex at this location on two occasions. The election does not

specify which occasion the State was electing, but, again, the State may have corrected this

problem during its closing argument. We hold that the proof is sufficient to support these

convictions and that the Defendant is not entitled to relief on his argument that the State’s

election as to these offenses was inadequate. Accordingly, we affirm the Defendant’s

convictions on Counts 12, 22, and 26.

-34-

The Defendant makes no argument and cites to no authority regarding the sufficiency

of the evidence as to Count 23, upon which the Defendant was convicted of forgery. We,

nevertheless, hold that the evidence is sufficient to support this conviction. “A person

commits an offense who forges a writing with intent to defraud or harm another.” Tenn.

Code Ann. § 39-14-114(a) (2006). To forge a writing means to “[a]lter, make, complete,

execute or authenticate any writing so that it purports to . . . [b]e the act of another who did

not authorize that act.” Id. § 39-14-114(b)(1)(A)(I). The proof at trial established that the

Defendant forged a letter purporting to be from Dr. Pinnock. The proof also established that

the Defendant created the letter with the intent of enabling him to engage in illegal sexual

penetration with the minor victim, conduct harmful to the victim. Therefore, we affirm the

Defendant’s conviction of forgery.

Sentencing

The Defendant complains that his sentences are excessive because (1) the trial court

gave “inordinate weight” to enhancement factors and (2) the enhancement factors applied by

the court are not supported by the evidence. The Defendant also contends that his sentences

on Counts 4, 5, and 8 violate double jeopardy because “[t]he evidence adduced at trial is

insufficient to conclude that counts 4, 5, and 8 are separate incidents.” The Defendant is not

entitled to relief on this latter issue because we have determined, as set forth above, that the

evidence is sufficient to support the Defendant’s convictions on Counts 4, 5 and 8.

We also note that the record on appeal contains a transcript of the witnesses’

testimony at the sentencing hearing but does not contain any of the exhibits thereto, including

the presentence report and the victim’s written statement.13 As set forth above, it is the

appellant’s responsibility to compile an adequate record that allows meaningful review on

appeal.

Proof and Findings from Sentencing Hearing

Mark Madison, one of the Defendant’s younger brothers, testified that the Defendant

“is a caring human being who has a great, great compassion for people.” He described the

Defendant as “totally remorseful” about the events that led to his convictions. According to

Mr. Madison, the Defendant “acknowledged that he should have never did what he did” with

respect to his relationship with the victim. Mr. Madison testified that the Defendant’s family

“stands willing to stand behind him as he takes responsibility” for his crimes.

13

After oral argument, this Court allowed the Defendant to supplement the record with additional

material from the sentencing proceedings. The record, nevertheless, remains incomplete.

-35-

The victim testified that he had suffered emotionally from the Defendant’s crimes and

that he had enrolled in counseling to deal with his emotional problems. On cross-

examination, the victim acknowledged that he had been in treatment with a psychologist prior

to meeting the Defendant. He explained that this earlier counseling was the result of his

“making bad grades in middle school.”

Bobby Denegal testified that he was the Defendant’s uncle. Mr. Denegal accused the

Defendant of having forged a signature to a family will. Mr. Denegal sought a warrant

against the Defendant for “[f]raudulently having the will probated” but admitted that he had

been unsuccessful in obtaining the warrant. He also testified that, in conjunction with the

dispute over the will, the Defendant had threatened to have him arrested for raping one of the

Defendant’s sisters. Mr. Denegal testified that it had been his experience that the Defendant

is “an evil, conniving individual that ha[s] swindled [Mr. Denegal’s mother] and others out

of their life savings.”

Reverend Menjou C. Miller, Sr., testified that he met the Defendant through the

Sulphur Springs AME Church several years previously. Rev. Miller testified that, during the

time that he had known the Defendant, he had “presented himself . . . as a perfect

gentleman.”

The Defendant gave an allocution during which he acknowledged that he “should

have behaved as an adult,” that, as the adult, he was “responsible,” that he was “deeply sorry”

and “regret[ted] any harm or pain [he had] caused the victim, the victim’s family, [his]

family, and [his] church.” The Defendant also denied the allegations levied against him by

Mr. Denegal. He emphasized that he engaged in no inappropriate conduct during the twenty

months he was on bail awaiting trial. He asked for the opportunity to be rehabilitated and

to “earn back [his] self-respect.” He stressed that he was “not a predator.”

After the sentencing hearing, the trial court sentenced the Defendant as a standard

Range I offender. The trial court sentenced the Defendant to the minimum term of eight

years on each of his rape convictions14 on Counts 1 and 2.15 The trial court sentenced the

14

Rape is a Class B felony. Tenn. Code Ann. § 39-13-503(b) (2003, 2006). The sentencing range

for Range I offenders convicted of Class B felonies is eight to twelve years. Id. § 40-35-112(a)(2) (2003,

2006).

15

The trial court explained its decision to impose the minimum sentence on Counts 1 and 2 as

follows:

Although not addressed at the sentencing hearing, the Court notes that counts one

and two occurred prior to the amendment by 2005 Tenn. Pub. Act Chapter 353 Section 18

which made enhancement factors advisory for sentencing purposes on crimes occurring on

(continued...)

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Defendant to the midrange term of eleven years on each of his remaining rape convictions,

and to the maximum four year term on each of the aggravated statutory rape convictions,16

relying on enhancing factors for “particularly great” injuries suffered by the victim and for

the Defendant’s abuse of a position of trust. See Tenn. Code Ann. § 40-35-114(6), (14)

(Supp. 2005, 2006). The trial court sentenced the Defendant to the maximum sentence of

two years on the forgery conviction, a Class E felony,17 relying upon the same enhancement

factors. The trial court then merged Counts 3 through 12 (rape by force or coercion) with

Counts 13 through 22 (rape by fraud), respectively; merged Count 24 (aggravated statutory

rape) with Counts 10 and 20; merged Count 25 (aggravated statutory rape) with Counts 11

and 21; and merged Count 26 (aggravated statutory rape) with Counts 12 and 22.

Initially, we note that the judgment orders on the Defendant’s convictions do not

reflect the mergers ordered by the trial court. We therefore remand this matter to the trial

court for correction of the judgment orders to reflect the ordered mergers.

As to manner of service, the trial court found that “confinement is necessary in this

case to avoid depreciating the seriousness of the offenses and [to] provide deterrence to the

defendant and other individuals.” The court found further that the Defendant

continues to minimize his role in the events and maintains in his evaluation

that “he was coerced into [the sexual incidents with the victim] by the boy.”

He claims the teenage victim threatened him if he were to stop the relationship.

The [D]efendant continued to sexually abuse the victim in Sumner County

after the incidents in this indictment and threatened the victim and his mother

with jail (a type of extortion). The defendant also made veiled threats against

the victim’s life (e.g., “you have put yourself in danger. . . . your last spring

break, . . . your time is running out.”) The defendant also obtained a forged

arrest warrant against the victim. Having heard the trial testimony, the Court

does not find this version of events credible and finds the [D]efendant is not

amenable to treatment or probation.

15

(...continued)

or after June 7, 2005. There was no proof presented to the jury for enhancement purposes

of these two counts, therefore the Court must place the sentence at the minimum in the

range.

16

Aggravated statutory rape is a Class D felony. Tenn. Code Ann. § 39-13-506(d)(3) (2006). The

Range I sentencing range for Class D felonies is two to four years. Id. § 40-35-112(a)(4).

17

See Tenn. Code Ann. § 39-13-114(c).

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As to whether the Defendant should serve his sentences concurrently or consecutively,

the trial court first referred to Tennessee Code Annotated section 40-35-115(b)(5), which

allows for the imposition of consecutive sentences when

[t]he 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 . . . , 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[.]

Tenn. Code Ann. § 40-35-115(b)(5) (2006). In view of this statutory provision, the trial court

found as follows:

[The sexual abuse] occurred over a three year time span with acts of abuse

occurring weekly which included at least twenty occasions of anal sex

beginning when the victim was fourteen years old and the defendant was forty-

six years old. The Court finds the nature and scope of the offenses, which

included anal intercourse of the defendant and oral penetration of the victim

and the viewing of pornography with the minor victim 18 further demonstrates

the aggravated nature of the offenses. Additionally, the Court finds that the

extent of mental damage to this victim was great as the evidence indicated the

victim suffered extensive emotional trauma necessitating counseling and

continues to suffer confusion about his own sexuality because of the abuse at

the hands of the defendant.

(Footnote added). In light of its findings, the trial court ordered the eleven-year sentence

imposed on Count 4 to be served consecutively to the eleven-year sentence imposed on

Count 5, the eleven-year sentence imposed on Count 5 to be served consecutively to the

eleven-year sentence imposed on Count 8, and the eleven-year sentence imposed on Count

8 to be served consecutively to the two-year sentence imposed on Count 23, for a total

effective sentence of thirty-five years.19

18

The proof at trial included references to the Defendant and the victim viewing pornography

together.

19

The sentences imposed on the rape convictions must be served at 100%. See Tenn. Code Ann.

§ 40-35-501(i)(1), (2)(G), (3) (2006).

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Analysis

In making its sentencing determination, 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 §§ 40-35-113 and 40-35-114;

(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 wishes to make in the defendant’s own behalf

about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006). The trial judge should also consider “[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.” Id. § 40-35-103(5)

(2006).

Where the record affirmatively shows that the trial court considered the statutory

sentencing principles and all relevant facts and circumstances, our review is de novo with a

presumption that the trial court’s determinations are correct. See Tenn. Code Ann. § 40-35-

401(d) (2006); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). And, where the trial court

gave “due consideration and proper weight to the factors and principles which are relevant

to sentencing under the Act, and [the record establishes] that the trial court’s findings of fact

. . . are adequately supported in the record, then we may not disturb the sentence even if we

would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.

Crim. App. 1991). When the record does not demonstrate that the trial court gave due

consideration to the requisite criteria, our review of the sentence is purely de novo. Ashby,

823 S.W.2d at 169. The appealing party, here the Defendant, bears the burden of

establishing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n

Cmts; see also Ashby, 823 S.W.2d at 169. The record in this case establishes that the trial

court considered the statutory sentencing principles and all relevant facts and circumstances

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and that its findings are supported by the proof. Therefore, our review is de novo with a

presumption that the trial court’s determinations are correct.

As to the substantive aspects of the trial court’s sentencing decisions, we first consider

the trial court’s application of enhancement factors. We emphasize that, as to offenses

committed after June 6, 2005, enhancement factors are advisory only and that, while a trial

court is required to consider them, the trial court is not bound by them. Tenn. Code Ann. §

40-35-114 (2006). When the proof supports application of an enhancement factor, the weight

to be afforded the factor is left to the trial court’s discretion. See State v. Carter, 254 S.W.3d

335, 344-45 (Tenn. 2008); State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD,

2011 WL 900053, at *10 (Tenn. Crim. App. Mar. 16, 2011).

With respect to enhancement factor (6), applicable where the victim’s personal

injuries are “particularly great,” Tenn. Code Ann. § 40-35-114(6), we reiterate that the record

before us is incomplete as to the trial court’s assessment that the victim suffered particularly

great injuries. The transcript of the portion of the sentencing hearing conducted on October

1, 2009, reflects that the victim submitted a written statement. That statement is not in the

record.20 Nor is the presentence report or any of the other materials admitted as exhibits to

the sentencing hearing. It is the appellant’s responsibility to compile the record on appeal

that will allow this Court to address the issues raised. Tenn. R. App. P. 24(b). When the

necessary materials are not included in the record on appeal, we presume the trial court’s

ruling was correct. Griffis, 964 S.W.2d at 592-93. Therefore, the Defendant is entitled to

no relief as to his claim that the trial court erred in applying enhancement factor 6.

We next consider enhancement factor 14, which may be applied when the defendant

abuses a position of trust. According to our Supreme Court, when the defendant is an adult

and the victim is a minor,

application of [this] factor requires a finding, first, that defendant occupied a

position of trust, either public or private. The position of parent, step-parent,

babysitter, teacher, coach are but a few obvious examples. The determination

of the existence of a position of trust does not depend on the length or

formality of the relationship, but upon the nature of the relationship. Thus, the

court should look to see whether the offender formally or informally stood in

a relationship to the victim that promoted confidence, reliability, or faith. If

20

See footnotes 12 and 13, supra.

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the evidence supports that finding, then the court must determine whether the

position occupied was abused by the commission of the offense.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).

We hold that the proof supports the trial court’s application of this factor. The victim

testified that he met the Defendant at the church that the victim had been attending his

“whole life.” The Defendant was active in the church and became a friend of the family.

The victim testified that he considered the Defendant to be his mentor. They spent

considerable time together, including attending the Defendant’s family functions together.

The victim’s mother trusted the Defendant sufficiently to suggest the victim spend the night

with him when she had to travel out of town for her work. The victim testified that he

“believed everything that [the Defendant] told [him] because . . . everything he told [him]

was always the truth. So [he] was lead [sic] on [by] a pretty good and complete person.”

This proof established that the Defendant stood in a position of private trust vis-a-vis the

victim.

Relying on these two enhancement factors, the trial court imposed eleven-year terms,

one year short of the maximum, for the Defendant’s convictions of rape by force or coercion

and rape by fraud. The record reflects no error by the trial court in imposing these terms.

Similarly, we find no error in the trial court’s imposition of the maximum four year term on

each of the Defendant’s three convictions of aggravated statutory rape, or in its imposition

of the maximum two year term on the Defendant’s conviction of forgery on Count 23.

Accordingly, we affirm the length of the sentences imposed on the Defendant’s convictions

on Counts 3 through 26. We also affirm the Defendant’s sentences on Counts 1 and 2, for

which the trial court imposed the minimum term of eight years.

The Defendant raises no specific argument as to the trial court’s imposition of

consecutive sentences, and we see no issue based upon our review. Accordingly, we hold

that the trial court did not err in ordering that the Defendant serve some of his sentences

consecutively.

Conclusion

We affirm the Defendant’s convictions and sentences. This matter is remanded to the

trial court for correction of the judgment orders as set forth above.

_________________________________

JEFFREY S. BIVINS, JUDGE

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