State of Tennessee v. Jim Gerhardt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 4, 2008 Session

STATE OF TENNESSEE v. JIM GERHARDT

Appeal from the Circuit Court for Madison County

No. 05-600 Roy B. Morgan, Jr., Judge

No. W2006-02589-CCA-R3-CD - Filed January 23, 2009

In October 2005, a Madison County grand jury indicted the defendant, Jim Gerhardt, on one count

of child abuse and neglect, a Class A misdemeanor. Following a July 2006 jury trial, the defendant

was acquitted of the offense as charged in the indictment but convicted of attempted child abuse and

neglect, a Class B misdemeanor. Following a sentencing hearing, the defendant received a six-

month sentence, with the defendant to serve sixty days in the county jail and the balance of the

sentence on probation. As part of the defendant’s probation, the trial court instituted a 8:00 p.m. to

7:30 a.m. curfew, ordered the defendant to have no contact with the victim, and required that the

defendant receive counseling. On appeal, the defendant argues that: (1) the evidence produced at

trial was insufficient to support his conviction; (2) the trial court erred by failing to require the state

to elect offenses; (3) the trial court erred by failing to answer a question posed by the jury during its

deliberations; (4) the trial court erred by allowing the prosecuting attorney to ask the defendant and

his wife whether a particular witness was lying; (5) the trial court erred by allowing the prosecuting

attorney to make improper statements during the state’s closing argument; (6) the trial court

improperly denied the defendant the transcript of the sentencing hearing; (7) the trial court imposed

an excessive sentence; (8) the defendant received the ineffective assistance of counsel at trial; and

(9) the cumulative effect of these and other errors prejudiced him. After reviewing the record, we

conclude that the defendant’s issues are without merit and affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and

NORMA MCGEE OGLE , JJ., joined.

Jim Gerhardt, Wildersville, Tennessee, (on appeal) pro se; Daniel J. Taylor, Jackson, Tennessee (at

trial), for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

James G. Woodall, District Attorney General; and Rolf S. Hazlehurst, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Initially, we note that the statement of facts of this case has been the subject of much dispute

on the part of both parties. Generally, a defendant tried for a misdemeanor offense is not

automatically provided with a court reporter at state expense. See Tenn. Code Ann. § 40-14-307(a)

(2006) (court reporter shall attend “every stage of each criminal case before the court”); id. § 40-14-

301(3) (“criminal case” defined in pertinent part as “the trial of any criminal offense which is

punishable by confinement in the state penitentiary”). “In other words, a court reporter [is] not

provided at state expense for a misdemeanor unless a defendant [is] unable to afford one based upon

indigency.” State v. Nail, 963 S.W.2d 761, 764 (Tenn. Crim. App. 1997). In this case, the defendant

was not declared indigent until December 2006, after the jury trial had concluded.1 Furthermore, in

his “Motion to Amend Order to Prepare Transcripts,” one of the numerous post-trial motions the

defendant filed in this case, the defendant noted that “[d]uring a break in one of the [pre-trial]

hearings in this matter,” which the defendant believed took place in May 2006, trial counsel

instructed the court reporter, who had apparently been present at all proceedings to that point,2 to

stop recording the proceedings.3 In that same motion, the defendant stated that he was declared

indigent at a December 6, 2006 hearing and that the court reporter was present to record all hearings

after that point. Therefore, although not explicitly stated anywhere in the record, it appears that no

court reporter was present to record the trial proceedings, the sentencing hearing, or the hearing on

the defendant’s motion for new trial.

When no verbatim transcript is available, the appellant may prepare “a statement of the

evidence or proceedings from the best available means, including the appellant’s recollection. The

statement should 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(c). The state may file objections to

the statement of evidence; if such objections are filed, the trial court shall decide what may be

properly included within the statement of evidence on appeal. See Tenn. R. App. P. 24(c) & (e).

In this case, the defendant recorded portions of the trial testimony and, after the trial court declared

him indigent, he petitioned the trial court to order the court reporter to prepare a transcript based on

these recordings. The court ordered that the defendant submit these recordings to the state for its

review; after reviewing the recordings, the state filed an objection, noting that the testimony of

1

The defendant claims that he would have qualified as indigent as early as April 2005 and that he asked trial

counsel move to have him declared indigent at that time, but trial counsel made no such motion. This alleged failure to

seek indigency status is one of the numerous bases for the defendant’s ineffective assistance of counsel claim.

2

No transcripts from any pre-trial hearings appear in the record. The defendant filed a motion to have these

transcripts prepared, but the trial court denied this motion.

3

The defendant claims that he “asked [trial counsel] to request that a court reporter be provided for him at trial”

and that he and trial counsel “argued about this fact minutes before the commencement of Defendant’s trial.” However,

the defendant ultimately “relied on the statements made to him by [trial counsel]” and did not pursue the court reporter

issue at the time of trial.

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several witnesses was missing,4 the “quality of the audiotape varie[d] greatly,” and the state “ha[d]

no assurance that the tape is a verbatim recital of the evidence and the proceeding.” A protracted

series of motions, counter-motions, and hearings followed. In the end, the trial court refused to order

the court reporter to prepare a transcript from the defendant’s tape, but it did allow the defendant to

file, pursuant to Rule 24, a statement of the evidence, based largely upon his own transcription of

the audio recordings. The trial court also ordered that the state’s objection to the defendant’s

statement of evidence, which incorporated by reference an “Amended Bill of Particulars” it had filed

in June 2006, be incorporated into the statement of evidence.

Trial Testimony

The first witness to testify at trial was the victim, T.R.,5 who was twelve years old at the time

of the events which form the basis of these proceedings. The victim’s testimony does not appear in

the statement of evidence;6 according to the state, at trial T.R. said that the defendant abused him on

an almost daily basis between November 1, 2004, and the date he was removed from the custody of

his mother7 and the defendant, who was T.R.’s stepfather. According to the victim, these events

took place at the Jackson residence shared by the defendant, his wife (the children’s mother), the

victim, and his sister. In its summary of T.R.’s testimony, the state noted that T.R. “suffered from

fear and humiliation, which was caused by the . . . actions of [the defendant].”

According to the state, T.R. testified that the defendant excessively disciplined him, including

what the state called “extensive write offs.”8 The defendant also restricted the victim’s reading

privileges, prevented him from taking part in physical activities such as karate, in which the victim

had participated before these events, and forbade him from watching television for three months.

The victim also testified that the defendant submitted him to “[a]cts of interrogation,” which

included writing “confession statements” detailing his supposed transgressions. At trial,

approximately thirteen pages of these statements were introduced into evidence.

T.R. testified that he was routinely locked in his room, with the door being locked from the

4

In a later filing, the defendant claimed that the absence of these witnesses from the recording resulted from trial

counsel’s “mov[ing] and tamper[ing] with Defendant’s digital recorder during the jury trial in this matter.”

5

As the victim and his sister, who also testified at trial, are juveniles, we will reference them by their initials.

6

The state’s amended bill of particulars summarizes the victim’s testimony on direct examination; the statement

of evidence summarizes the victim’s testimony on cross-examination, and it also summarizes the victim’s direct

examination testimony in lesser detail.

7

Lorria Gerhardt, the children’s mother, was indicted as a co-defendant in this case. Prior to trial, her case was

severed from the defendant’s. She ultimately entered a best interest plea to attempted child abuse and neglect and was

sentenced to six months probation. She was married to the defendant at the time of these events, but according to the

defendant the couple are no longer married.

8

Although the state does not define the term, an exhibit introduced at trial indicates that T.R. was, on one

occasion, required to write “I will not lie to Mother or Jim ever again” 1000 times.

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outside. On at least one occasion, T.R. was left at home alone, locked in his room. The victim said

that in addition to locking him in his room, the defendant required him to either sit or lie down on

the bed or stand in one particular spot while in his bedroom. The victim testified that he was not

allowed to go the bathroom except when permitted to do so by the defendant and his mother, despite

any physical problems the victim had. According to medical records, the victim suffered from

various “gastrointestinal complications including lactose intolerance, constipation, and encopresis.”

According to the state, T.R. testified that was “only fed a very limited amount of bread and

bologna and occasionally ham and cheese. His fluid intake was primarily limited to water.” The

victim said that he was ordered “not to speak with or have contact with his younger sister,” his

mother, or his friends, and that he was not allowed to speak to anyone regarding his treatment at the

defendant’s home.

According to the state, the victim testified that the defendant “committed acts of physical

abuse on an almost daily basis including striking, kneeing, hitting and kicking [him] in various parts

of his body, head and face.” The victim also testified that the defendant hit him on the buttocks with

a belt and a two-by-four wooden board on several occasions. The victim also testified that the

defendant “used physical force to subdue [him],” which included applying force on “pressure points

throughout [his] body.” Furthermore, the victim said that the defendant “threatened and intimidated”

him through threats of physical violence and depriving him of food and water.

Before the children’s Christmas 2004 break began, T.R. and his sister spent a significant

amount of time with their grandparents. During the week, either the defendant or his wife

transported the children from Jackson to their respective schools in Chester County. After school,

the children would take the bus to the home of Charles and Clessie Stovall, their maternal

grandparents. The defendant or his wife would then return the children to the family home in

Jackson, where they would spend the night. According to T.R., the defendant instructed the Stovalls

to impose the same rules and system of punishments upon T.R. as existed at the defendant’s home.

If the grandparents refused to follow these instructions, T.R. would not be allowed to see his

grandparents.

According to the defendant’s statement of evidence, on direct examination T.R. said that the

defendant beat him on an almost daily basis between November 2004 and January 2005. T.R. said

that the defendant used a two-by-four board or his fist, and that as a result of the beatings, he

suffered bruises to his face and body. T.R. also testified that his mother and the defendant gave him

nothing to eat except bread, bologna, Kool-Aid, and water. On cross-examination T.R. admitted that

during the period when either his mother or the defendant transported him and his sister from the

defendant’s house to their respective Chester County schools, he ate breakfast each morning. T.R.

said that he either ate breakfast at the defendant’s house or at a McDonald’s on the way to school.

T.R. also said that he ate lunch daily at school and also ate supper at his grandparents’ house around

4:30 p.m each day. T.R. also testified that after arriving at the defendant’s house each evening, he

was provided with another meal at around 7:00 p.m. T.R. also said that during Christmas break, he

ate meals and snacks provided by Mrs. Hibbits, his day care provider. He also testified that his

mother and the defendant took him and his sister to dinner on several occasions during the Christmas

break.

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Dr. William Woods, T.R.’s pediatrician, testified regarding the victim’s medical history and

symptoms. The defendant did not transcribe or summarize the physician’s testimony, while the state

summarized the physician’s testimony as follows:

The victim suffered from severe constipation and encopresis. Encopresis includes

an involuntary loss of control of the bowels caused by severe constipation. In eight

out of ten times constipation in cases such as [T.R.’s] is caused by holding the

bowels. If a child with encopresis was forced to hold his bowels that would

adversely affect the child’s health and welfare.

The testimony of several other witnesses was not summarized or transcribed by the defendant

and summarized only briefly by the state. Mr. and Mrs. Stovall, the victim’s maternal grandparents,

“testified regarding noticeable changes in the child’s health and behavior during the relevant time

periods.” Officer Larry Scandrett with the Jackson Police Department testified that when he

inspected the defendant’s home, he observed that “the door to the victim’s bedroom contained a lock

on the outside of the door and an alarm.” Maryland Davis, one of T.R.’s teachers, and Sabrina

Anderson and Johnny Dodd, two persons whom T.R. met through the Boys and Girls Club, all

testified that they observed bruises on the victim. Furthermore, Lorria Gerhardt testified on the

defendant’s behalf, but neither party’s statement of the evidence summarized her testimony.

The defendant transcribed the trial testimony of four witnesses: himself, Dr. Christie Brooks,

Officer Cathy Ferguson, and S.R., the victim’s sister. Dr. Brooks, a psychologist at Le Bonheur

Children’s Medical Center in Memphis, conducted a psychological evaluation of T.R. in June 2005.

Dr. Brooks testified that as part of her work with Le Bonheur’s Center for Children and Parents, she

interviews children referred to the Center by the Department of Children’s Services (DCS) for

suspected abuse and neglect and that T.R. was one of the children referred to her. Dr. Brooks said

that after evaluating T.R., she made a “general diagnosis of physical abuse and neglect of the child.”

She said she made the evaluation based on her interview with the victim and his grandparents, as

well as “through discussions with other team members involved in the case.”

Dr. Brooks testified that in her report, which was introduced into evidence, she noted that the

victim expressed concerns about his mother’s relationship with the defendant. According to Dr.

Brooks, T.R. “said that, in his belief . . . he got along with his [m]om pretty well before getting his

stepfather but after his mother and stepfather got married, he felt things had gotten worse. . . . [The

defendant] favored [S.R.]. [T.R.] felt that he was punished for anything and everything.”

Specifically, T.R. told Dr. Brooks that he was grounded, not allowed to watch television, and locked

in his room without food and water. Dr. Brooks also testified that T.R. claimed that “he had gotten

bruises and a black eye from [h]is stepfather.” Dr. Brooks said that T.R.’s treatment adversely

affected his health and welfare on both physical and psychological levels.

On cross-examination, Dr. Brooks stated that she became involved in this case after T.R. was

referred to Le Bonheur by DCS. She noted that while she reviewed DCS records as part of her

report, she did not interview the defendant, his wife, or any of T.R.’s teachers. She also testified that

while she reviewed the victim’s medical records as part of her evaluation, she said that she did not

“know[] personally whether they were actually true or not.” She admitted that in her report, she

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noted that T.R. “gets angry when he’s provoked,” and that he had told her that he did not care what

happened to his mother and stepfather. Later, Dr. Brooks said that T.R. had told her that he wished

for his stepfather to remain in jail “for a long time” and for his mother “to get away from her

husband” and “get on with her life.”

Dr. Brooks testified that she believed T.R. was a credible witness. She noted that in her

experience, in most cases where a child she interviewed retracted an allegation of abuse, the child

“retracted [the statement] for reasons other than that it didn’t occur. . . . Most of the case[s] where

children retract criminal statements . . . [occur when] they want to go back with the family or

somebody they love has gotten in trouble.” However, Dr. Brooks noted that while she believed T.R.

was a credible witness, it was possible that he could have fabricated these allegations.

Dr. Brooks testified that T.R. indicated that he had not been fed over a five-to-six-day period

during his 2004-05Christmas break from school. She said that T.R. indicated that he was only given

water during this period. Dr. Brooks said that T.R. said nothing to her “about going anywhere else

and having any other meals” during that time. She said that T.R. had not reported any physical

abuse between his mother and the defendant, and he also said that the defendant had never abused

S.R. Dr. Brooks also said that T.R. did not indicate that the defendant had sexually abused him.

According to Dr. Brooks, T.R. indicated that the defendant “watched him in the bathroom

to make sure he bathed correctly” because the defendant “did not feel [T.R.] was washing himself

very well.” T.R. also said that he occasionally got constipated and had encopresis. According to

Dr. Brooks, T.R. reported that a doctor had told him that he was “the most clogged up child he had

ever seen.” On redirect examination, Dr. Brooks testified that she did not interview T.R.’s parents

because she was not assigned to do so.

Officer Ferguson, testifying for the defendant, said that she did not interview the victim, his

sister, the children’s grandparents, or anyone at the Boys and Girls Club. She testified that she

attempted to interview the defendant and his wife but was unable to do so after they invoked their

right to counsel. She said that her investigation in this case consisted largely of reviewing the DCS

investigation of the abuse and neglect allegations. She noted that while in most instances DCS made

audio recordings of parental interviews when the parent is the focus of an abuse and neglect

investigation, no audio recordings existed of DCS’s interviews of the defendant and his wife.

Officer Ferguson said she was unsure as to why no recordings existed in this case.

The defendant testified that he met his wife in May 2003 and married her in September 2004.

He said that from the beginning of the relationship, he also tried to develop a relationship with S.R.

and T.R. The defendant said that early on in the relationship, he discovered that T.R. “had this

problem of [defecating] on himself.” The defendant said that T.R. did this act several times,

including once in a video store, at least once while playing video games, once while taking a bath

at his grandmother’s house, and once in his bedroom at the house his mother and the defendant

shared. The defendant testified that he “believed that at least three fourths of the time it was

voluntary.” After the incident where T.R. defecated on himself in his bedroom, the defendant and

his wife made T.R. go to the restroom at certain points during the day.

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The defendant testified that he and his wife checked on T.R. while he was bathing to make

sure he was bathing properly. The defendant denied standing in the bathroom the entire time while

T.R. was bathing.

The defendant denied giving T.R. only bread and water. Regarding the children’s eating

habits, he said that until December 17, 2004, the defendant or his wife would take the children from

the family home in Jackson to Chester County, where they would attend school and spend time with

their grandparents before his wife picked up the children and returned to Jackson. The defendant

said that the children would always have breakfast before school; the defendant said that sometimes

the children were given cereal, a sandwich, or a toaster pastry at home, and other times the children

would eat breakfast at McDonald’s. The defendant said that the children would eat a small meal at

their grandmother’s house after school, and once the children returned to the defendant’s house, the

family would eat dinner together. The defendant denied that he forced T.R. to eat in his bedroom

while the rest of the family ate together.

The defendant denied hitting T.R., stating that because T.R. was not his child, he did not

spank T.R. or his sister. Rather, he said that his wife or the children’s grandparents would spank the

children. He also denied ordering the children not to speak to one another. Regarding his

relationship with T.R., the defendant said that he got along well with T.R. until he married the

child’s mother, at which point his relationship with T.R. deteriorated. The defendant said that T.R.

threatened to report the defendant to the juvenile court judge, and T.R. also told the defendant that

Mrs. Gerhardt was cheating on the defendant.

The defendant said that at some point in January 2005, he noticed that T.R. had scratches and

bruising on his face. When questioned, T.R. said that he had exited the house the evening of January

3 and climbed some trees behind the house. The defendant said that this news concerned him

because the family’s house was located in what he deemed “a very high crime area.” In light of this

episode, the defendant reversed the doorknob on T.R.’s bedroom door so that the door locked from

the outside. The defendant said he locked the door when he went to bed, which was usually between

midnight and 2:00 a.m., and he unlocked the door when he awoke at 6:00 a.m. The defendant said

that after rearranging the lock, he made T.R. use the restroom before going to bed each night. If T.R.

had to use the restroom after the door was locked, he would knock on the wall between his bedroom

and S.R.’s bedroom, and S.R. would unlock the door. The defendant testified that around January

16, he bought a door alarm and placed it on T.R.’s bedroom door. The defendant said that he placed

the alarm on T.R.’s door on Tuesday, January 18, and he did not lock T.R.’s door that night.

The defendant recalled that next day, January 19, DCS and the Jackson police began their

investigation. Officer Scandrett with the Jackson Police Department and William McCrary, a DCS

employee, inspected the house. According to the defendant, both men commented on how neat and

orderly the house was. The defendant said that he and his wife then met with McCrary for five hours

at the Madison County DCS office. The defendant testified that T.R. and S.R. were removed from

his and his wife’s custody on January 19.

The defendant testified that T.R. and S.R. spent the weekend of December 3-5 with their

grandparents. Before the weekend, the defendant learned that T.R. had received two poor grades;

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the defendant said that T.R. “messed up his grades on purpose.” Given these poor grades and the

“power struggle” between the defendant and his wife and his wife’s parents over disciplining the

children, the defendant instituted a list of restrictions which T.R. was to follow while staying at his

grandparents’ house. The defendant e-mailed these restrictions to his wife; this e-mail was

introduced into evidence at trial. According to the e-mail, T.R. was to go to bed at 7:00 p.m. on

Friday night and was not permitted to watch television or play video games. T.R. was permitted to

watch one hour of television before lunch on Saturday and one hour after lunch; at all other times,

T.R. was to “study all the time in the room” and refrain from “read[ing] any books other than direct

schoolwork. . . . [H]e cannot come out of the room unless he has to use the bathroom or is eating (10

minutes to eat).” The e-mail also noted, “EVEN IF HE IS TOLD BY ANYONE HE CAN

BREAK ANY OF THE RULES (HE KNOWS THEM ALL) He knows not to and WILL be

Punished ANYWAY.” (caps and bold in original).

At some point before he was removed from the defendant’s home, T.R., upon the request of

his mother, wrote out a list of things which he had done wrong, a list which spans over fifteen pages.

The defendant denied telling T.R. what to write, and he also denied rewarding T.R. with food if the

boy “wrote things that were really bad.” He also recalled that he occasionally took both children out

to eat without their mother being present.

The defendant concluded his direct examination testimony by stating that he had never been

interviewed by police. The defendant said that he “tried to contact Investigator Ferguson in March”

but that the officer would not return his phone calls. The defendant also said that “the DCS

investigation . . . was based on false statements.” He also claimed to “have official documents from

DCS saying that Mr. McCrary falsified documents filed in the DCS file.”

On cross-examination, the defendant admitted that in September 2004, he wrote a letter to

his wife’s parents regarding the children’s behavior. In the letter, which was admitted into evidence,

the defendant wrote, “TO THIS POINT, I HAVE NOT SPANKED EITHER ONE OF THE KIDS.

IF IT GETS TO THE POINT WHERE [T.R.] or [S.R.] WILL NOT FOLLOW OUR RULES OR

OBEY US AND THESE PUNISHMENTS DO NOT WORK, THEN I WILL PUNISH THEM

PHYSICALLY.” (caps in original). The defendant also wrote, “[t]here are too many other things

in life to have to worry about than to have to try and fix everything [T.R.] will mess up with his

game playing and lies and making us be mad at each other. . . . He has gotten away with a lot, but

ONE WAY OR ANOTHER that is over.” (bold and caps in original). In the letter, the defendant

accused T.R. of doing such things as hitting his sister so that she would scream, causing his mother

to whip her, putting bandages on his fingers in an attempt to make his grandparents feel sorry for

him, and lying to his teachers about being sick so that he would not have to take a test. In the letter,

the defendant summarized T.R.’s status by stating, “HE WILL FOLLOW OUR RULES OR IT

WILL GET WORSE FOR HIM.” (caps in original).

The defendant testified that he had T.R. do one “write-off,” which he had T.R. redo because

the child failed to finish the task when he was first assigned it. The defendant also admitted that S.R.

wrote a note to her mother which stated, “Jim is the nicest strongest best looking man my mother

has ever dated. I, [S.R.], am a tale hole.” The defendant said that he “didn’t tell her what to write.

She wrote based on our conversation while we were studying.” The defendant said that S.R. “wrote

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this on her own,” but he also admitted that he did tell S.R. to “write it and go give it to [her] mom

to aggravate her.”

The defendant denied several allegations raised by the state on cross-examination. He denied

keeping the children from their grandparents, denied hitting either child, denied feeding T.R. only

bread, bologna, and water, denied making T.R. either sit on the bed or stand in one place in his

bedroom, denied locking T.R. in his bedroom and leaving him alone in the house while the rest of

the family went out, and denied ordering the children to refrain from talking to one another. He

initially stated that T.R. was locked in his room on weekends as well, but he later stated that T.R.’s

door was left unlocked the weekends of January 7-9 and January 14-16. Regarding the door alarms,

which the defendant placed on T.R.’s door the evening of Tuesday, January 18, the defendant noted,

“If I had thought of that, I would have done that at the beginning.” The defendant admitted that the

lock on T.R.’s bedroom door was still reversed (i.e., facing the hallway) when DCS and the Jackson

police inspected the house on January 19.

Regarding T.R.’s behavior, the defendant testified, “He had bad behaviors, [but] I don’t know

that any child is bad they just act bad.” The defendant did not take T.R. to counseling before the

children were removed from his custody because of a bad experience involving his wife’s uncle, who

the defendant claimed deteriorated once he was put on psychotropic medication. The defendant said

that he refused to participate in family counseling after the children were removed because “I

invoked my Fifth Amendment [r]ight . . . . [T]here was not a signed [court] order and I chose not

to cooperate.”

On redirect, the defendant testified that he wrote the September 2004 letter to his wife’s

parents because he had verbally communicated his concerns about disciplining the children, but he

perceived that his wife’s parents were unable to comprehend his concerns. The defendant said that

he was particularly concerned about an episode where T.R. allegedly grabbed S.R.’s breast, an act

which the children’s grandparents did not see as problematic. The defendant also said that he was

concerned over the grandparents telling T.R. that he did not have to follow the defendant’s rules

while at their house. The defendant also accused the grandparents of giving T.R. the idea of

reporting the defendant and his wife to the juvenile court judge.

Testifying as a rebuttal witness for the state, S.R., who was eleven years old at the time of

trial, testified that after she and her brother moved into the defendant’s home, T.R. would have to

go straight to his room after coming home from school. S.R. said that T.R. did so every day and was

not “free to come and go as he pleased.” S.R. said that T.R. was fed only bread, bologna, and water

during this time. S.R. also noted that T.R. was not allowed to go to the restroom at will; rather, “Jim

would go knock on [T.R.’s] door and ask him if he needed to use the bathroom. If he did Jim would

let him out so he could use the bathroom.” S.R. also testified that whenever T.R. took a bath, the

defendant “watched him.”

S.R. testified that T.R. was left locked in his room “a little longer than” the midnight or 2:00

a.m. to 6:00 a.m. period identified by the defendant. She also said that her brother was left at home

alone locked in his room, although she could not say exactly when this instance occurred. She also

said that at times she could hear the defendant hitting T.R. “with boards or something,” but she

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admitted that she never saw the defendant hit T.R.

On cross-examination, S.R. said that she and her brother presently lived with her maternal

grandparents. She said that she had talked with several people about this case, including DCS, a

therapist, the district attorney’s office, her grandparents, and her brother. She also admitted

reviewing her testimony with the District Attorney’s office and her grandparents prior to trial.

S.R. admitted that during the period when her mother or the defendant would transport her

and her brother to school in Chester County, she and T.R. either ate breakfast at home or stopped

at McDonald’s for breakfast. She also said that she talked to her brother on the way to school, and

she said that both she and her brother ate lunch daily at school. S.R. said that she was free to talk

to her grandparents while she was at their house, but T.R. was confined to his room to do his

schoolwork. S.R. said that her mother brought her and T.R. back to Jackson from Chester County

each night; S.R. said that during the ride back to Jackson, both she and her brother could speak to

their mother, but she did not recall if they could speak to each other. S.R. said that during the

Christmas holidays, she and her brother both spent time at a babysitter’s house; S.R. said that during

this time, both she and her brother were fed regularly and were free to talk to each other, and that

T.R. was not confined to a particular location while at the babysitter’s residence.

At the conclusion of the evidence, the jury acquitted the defendant of the indicted offense of

child abuse and neglect but convicted him of the lesser included offense of attempted child abuse

and neglect. At the subsequent sentencing hearing, the trial court sentenced the defendant to six

months in jail, with the defendant to serve sixty days in jail and the balance of his sentence on

community corrections. The trial court also imposed a curfew of 8:00 p.m. to 7:30 a.m. and ordered

the defendant to receive counseling. This appeal followed.

ANALYSIS

I. Sufficiency of Evidence

The defendant’s first stated issue on appeal is that the evidence produced at trial was

insufficient to sustain his conviction for attempted child abuse and neglect. An appellate court’s

standard of review when the defendant questions the sufficiency of the evidence on appeal 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, 99 S. Ct. 2781, 2789 (1979) (emphasis in original). The appellate

court does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in the

testimony and drawn all reasonable inferences from the evidence in favor of the state. See State v.

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions regarding witness credibility, conflicts in testimony, and the weight and value to be given

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to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A

guilty verdict removes the presumption of innocence and replaces it with a presumption of guilt, and

on appeal the defendant has the burden of illustrating why the evidence is insufficient to support the

jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This standard applies to

findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct

and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

The defendant was indicted on one count of child abuse and neglect. According to the

statute under which the defendant was indicted, child abuse and neglect was committed by “[a]ny

person who knowingly, other than by accidental means, treats a child under eighteen (18) years of

age in such a manner as to inflict injury or neglects such a child so as to adversely affect the child’s

health and welfare . . . .” Tenn Code Ann. § 39-15-401(a) (1998) (amended 2005). “The offense

of child abuse and neglect proscribed by [the former statute] is a single offense that may be

committed through one of two courses of conduct: child abuse through injury and child abuse

through neglect.” State v. Mateyko, 53 S.W.3d 666, 668 n.1 (Tenn. 2001) (citing State v. Hodges,

7 S.W.3d 609, 622 (Tenn. Crim. App. 1998)).

The defendant was acquitted of the offense as charged in the indictment and convicted of the

lesser included offense of attempted child abuse and neglect. Tennessee’s attempt statute states:

(a) a person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would

constitute an offense if the circumstances surrounding the conduct

were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the offense,

and believes the conduct will cause the result without further conduct

on the person’s part; or

(3) Acts with intent to complete a course of action or cause a result

that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and the

conduct constitutes a substantial step toward the commission of the

offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the

person’s entire course of action is corroborative of the intent to commit the offense.

Tenn. Code Ann. § 39-12-101 (a)-(b) (2003).

On appeal, the defendant argues that the evidence used to support his conviction is

“irrelevant” given that the jury’s verdict was not unanimous based on the trial court’s failure to

require the state to elect offenses and unreliable based on the trial court’s refusal to answer a

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question submitted by the jury during its deliberations. Those assertions are addressed later in this

opinion.

In this case, the defendant was indicted on one count which alleged that the defendant

committed offenses under both the abuse and neglect theories of the child abuse and neglect statute.

Furthermore, at trial the state argued the defendant’s guilt under both theories. Therefore, we must

determine whether the evidence produced at trial was sufficient to support the defendant’s conviction

under both the theory of attempted child abuse and the theory of attempted child neglect. We

conclude that the evidence is sufficient to support a conviction under both theories.

Attempted Abuse through Neglect

In State v. Mateyko, 533 S.W.3d 666 (Tenn. 2001), the Tennessee Supreme Court examined

the elements of the offense of attempted child abuse through neglect. The court held that first, “the

State must prove that the defendant intentionally engaged in conduct constituting child neglect or

that his conscious objective or desire was to neglect his [victim]. Mateyko, 53 S.W.3d at 676

(citation omitted). The state must also prove “that the defendant took a substantial step toward the

commission of that offense.” Id. at 673. Because “the offense of child abuse through neglect is

principally a nature-of-conduct offense . . . the State has no burden . . . to show that the defendant

intended that his [victim] suffer adverse effects to [his] health and welfare.” Id. at 676-77. In this

case, T.R., S.R., and the defendant testified that the defendant locked T.R. in his room at night.

During the time he was locked in his bedroom, T.R. was not free to use the restroom as he pleased,

despite the defendant’s awareness that T.R. had been diagnosed with encopresis and was known to

defecate on himself. The children also testified that the defendant limited T.R.’s diet, feeding him

only bread, bologna, and water. T.R. testified that he was subjected to rigorous discipline, including

numerous “write-offs” and threats of physical abuse, and T.R. testified that the defendant ordered

him not to tell anyone about his treatment at the defendant’s home. Based on this evidence, we

conclude that the defendant “intentionally engaged in conduct constituting child neglect or that his

conscious objective or desire was to neglect” T.R., and that he took a substantial step toward

achieving this objective.

Attempted Abuse through Abuse

The evidence was also sufficient to convict the defendant of attempted child abuse under the

theory of physical abuse. At trial, T.R. testified that the defendant “committed acts of physical abuse

on an almost daily basis including striking, kneeing, hitting and kicking [him] in various parts of his

body, head and face.” This evidence was sufficient for a rational factfinder to find beyond a

reasonable doubt that the defendant’s conscious objective was to inflict physical injury upon T.R.

and that the defendant took a substantial step toward achieving that goal. As the evidence produced

at trial was sufficient to support the defendant’s conviction under both theories, we deny him relief

on this issue.

II. Election of Offenses and Jury Unanimity

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As part of his argument that the evidence produced at trial was insufficient to support his

conviction, the defendant asserts that the trial court erred by failing to require the state to elect

offenses at the conclusion of the trial. The defendant argues that this supposed failure on the trial

court’s part rendered the verdict non-unanimous and unreliable.

Initially, we note that the defendant did not raise many of the issues he raises on appeal in

his motion for new trial. The election issue is one such issue. As such, the issue is waived on appeal

and the defendant is limited to plain error review. “When necessary to do substantial justice, an

appellate court may consider an error that has affected the substantial rights of an accused at any

time, even though the error was not raised in the motion for a new trial or assigned as error on

appeal.” Tenn. R. Crim. P. 52(b); see also Tenn. R. App. P. 36(b). In determining whether plain

error review is appropriate, the following factors must be established:

(a) the record . . . clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-

42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of establishing that these five

factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007) (“Gomez II”) (citing State v.

Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The appellate court need not consider all five factors

if any single factor indicates that relief is not warranted. Smith, 24 S.W.3d at 283.

In this case, we cannot conclude that the record accurately reflects what occurred at the trial

level. The statement of evidence and the summary of trial proceedings presented by the state do not

indicate whether defense counsel moved that the state elect offenses. The defendant insists that the

trial court did not require such an election, but without a sufficient record, the defendant’s assertion

cannot be verified. Accordingly, we are constrained to conclude that the defendant is not entitled

to plain error relief on this issue.

III. Trial Court’s Refusal to Answer Jury Question

During jury deliberations, the jury sent the following note to the trial judge: “Please define

a criminal intent attempt of child abuse and neglect. Does it matter if he (defendant) knew what he

did would cause harm?” The world “intent” was struck through, so that the initial sentence read,

“Please define a criminal attempt of child abuse and neglect.” In its written reply, the trial court

stated, “You have been instructed on the law. Please refer to the jury instructions.” The defendant

argues that the trial court’s “erroneous response to the jury’s points of confusion” rendered the jury’s

verdict “unreliable.” In making this argument, the defendant asserts that “[a]t least some jurors were

confused over the legal definition of . . . criminal intent of child abuse and neglect,” while some

jurors were “confused over the legal definition of . . . criminal attempt of child abuse and neglect,”

and still other jurors “expressed uncertainty as to the culpable mental state of ‘knowingly’ required

to be found by the jury beyond a reasonable doubt to sustain a lawful conviction under the child

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abuse and neglect [s]tatute . . . .”

As was the case with the election issue, the defendant did not raise this issue in his motion

for new trial. He also did not raise a contemporaneous objection to the trial court’s refusal to answer

the jury’s question. As such, the issue is waived on appeal and the defendant is limited to plain error

review. See Tenn. R. App. P. 3(e), 36(a); Tenn. R. Crim. P. 52(b). Our review of the plain error

factors leads us to conclude that plain error relief is not warranted in this case.

Regarding the first factor, although the defendant has included the jury note and the trial

court’s response in the record, the record does not clearly establish the extent of the jury’s supposed

confusion. Although the defendant asserts that some jurors may have been confused over the

definition of the culpable mental state of “knowingly,” the jury’s note did not contain the word

“knowingly” or the phrase “culpable mental state.” Additionally, the word “intent” was struck

through on the jury’s note, perhaps indicating that the jury did not, contrary to the defendant’s

assertion, have any questions regarding the definition of “intent.”

The defendant also has not established that a clear and unequivocal rule of law has been

breached. The defendant has not cited to any authority which states that a trial court is obligated to

answer the jury’s questions during deliberations or give a supplemental instruction in light of the

jury’s question. We are aware that a criminal defendant is entitled to a correct and complete charge

of the law, State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000), and that the trial court may give a

supplemental instruction when questioned by the jury, State v. Moore, 751 S.W.2d 464, 467 (Tenn.

Crim. App. 1988). This court has previously reversed a defendant’s conviction for failure to issue

a supplemental instruction in light of an erroneous jury instruction. See, e.g., State v. Robinson, 239

S.W.3d 211, 226-28 (Tenn. Crim. App. 2006) (trial court’s failure to answer jury question and issue

supplemental instruction regarding inability of accomplices to corroborate each other where initial

jury instruction did not inform jury of this “well-settled law” constituted reversible error). However,

in this case the defendant did not request a supplemental instruction, and on appeal the defendant

does not argue that the jury instructions were erroneous. Furthermore, our review of the instructions

leads us to conclude that the instructions fairly and accurately stated the laws at issue in this case.

As such, the trial court’s referring the jury to its charge without giving an additional instruction did

not prejudice the defendant. The defendant is therefore denied relief on this issue.

IV. Questioning of Defense Witnesses During Cross-Examination

The defendant next argues that the trial court erred by allowing the prosecutor, during his

cross-examination of the defendant and his wife, to ask whether S.R, who had not testified at that

point, would be lying if she were to testify in such a way that would contradict the testimony offered

by the defendant and his wife. The state argues that the defendant has waived this issue on appeal.

Regarding the cross-examination of Mrs. Gerhardt, we initially note that, as stated above, her

testimony does not appear in the record. “Where the record is incomplete and does not contain a

transcript of the proceedings relevant to an issue presented for review, or portions of the record upon

which the party relies, an appellate court is precluded from considering the issue.” State v. Ballard,

855 S.W.2d 557, 560-61 (Tenn. 1993) (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim.

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App. 1998)); see also Tenn. R. App. P. 24(b) (appellant has duty to prepare a record “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”). Accordingly, we conclude that this issue is waived on appeal.

Regarding the defendant’s assertion that his cross-examination was improper, we note that

in his motion for new trial the defendant only challenged the cross-examination of his wife. As

stated above, issues not raised in the motion for new trial are typically waived on appeal. See Tenn.

R. App. P. 3(e); State v. Alvarado, 961 S.W.2d 136,153 (Tenn. Crim. App. 1996). Furthermore, the

record reflects that defense counsel did not object to any of the numerous instances in which the

prosecutor asked the defendant whether S.R. would be lying were she to offer testimony that

contradicted the defendant’s. Failure to raise a contemporaneous objection typically results in a

waiver of the issue on appeal. Tenn. R. App. P. 36(a); State v. Thompson, 36 S.W.3d 102, 108

(Tenn. Crim. App. 2000). Thus, the defendant is limited to plain error review of this issue.

The record clearly indicates what occurred in the trial court as relevant to this issue.

Regarding the question of whether a clear and unequivocal rule of law has been breached, we note

that our courts have long held that “the propriety, scope, manner, and control of cross-examination

rests within the sound discretion of the trial court.” State v. Schiefelbein, 230 S.W.3d 88, 133 (Tenn.

Crim. App. 2007) (citing State v. Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994); State v. Barnard,

899 S.W.2d 617, 624 (Tenn. Crim. App. 1994)). “Absent a clear abuse of this discretion that results

in manifest prejudice to the accused, this court will not interfere with the trial court’s exercise of its

discretion on matters pertaining to the examination of witnesses.” Id. (citing State v. Johnson, 670

S.W.2d 634, 636 (Tenn. Crim. App. 1984)).

In arguing that the trial court’s allowing the state to repeatedly ask the defendant whether

S.R. would be lying if she were to offer testimony that contradicted his own, the defendant notes that

other jurisdictions have held that “was witness lying” questions are improper on cross-examination.

See generally United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991); State v. Savory, 893

S.W.2d 408, 411 (Mo. Ct. App. 1995); State v. Isom, 761 P.2d 524, 526 (Or. 1988). However, when

faced with a similar issue, this court has found no error where the state’s cross-examination of a

defendant included asking the defendant whether a potential witness would be lying were the witness

to testify in a certain fashion. In State v. Carlos Green, No. W2002-01963-CCA-R3-CD, 2003 WL

22718437, at * 7 (Tenn. Crim. App. Nov. 4, 2003), the defendant, who was charged with first degree

murder after the victim was found shot to death, was asked on cross-examination whether he had a

gun with him when he left an apartment the morning of the shooting. The defendant replied that he

did not have a gun when he left the apartment. Id. The state then asked the defendant if a particular

person, who was not called to testify during the state’s case in chief, would be lying were he to

testify that the defendant had a gun on his hip when he left the apartment. Id. The defendant

replied, “Yes, he will.” Id. The state then called this person as a rebuttal witness. Id. This court

concluded that “[t]he State was not improper in attempting to attack the credibility of the

defendant.” Id. Similarly, in this case the state’s asking the defendant whether S.R. would be lying

were she to contradict the defendant was designed to attack the defendant’s credibility. Accordingly,

we cannot conclude that the defendant has shown that a clear and unequivocal rule of law has been

breached.

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Even if the prosecutor’s cross-examination of the defendant did violate a clear and

unequivocal rule of law, the other plain error elements cannot be met here. In his brief, the

defendant does not address whether trial counsel’s failure to object to the questions could have been

a tactical decision, so he has not proven this element. The prosecutor’s questions also do not appear

to have adversely affected any of the defendant’s substantial rights. The defendant cross-examined

S.R. once she was called as a rebuttal witness for the state, so the jury had ample opportunity to

assess her credibility. Furthermore, in its jury charge the trial court instructed that the jury was to

be the sole judge of the credibility of witnesses, and on appeal we are to presume that the jury

followed the trial court’s instructions absent evidence to the contrary. State v. Williams, 977 S.W.2d

101, 106 (Tenn. 1998). The jury acquitted the defendant of child abuse and neglect as charged in

the indictment, so we can presume that the jury followed the trial court’s instructions and was not

improperly affected by the questions asked of the defendant on cross-examination. As such, we

conclude that the defendant is not entitled to relief on this issue.

V. Prosecuting Attorney’s Statements During Closing Argument

In the defendant’s brief, while arguing that the prosecutor improperly cross-examined him

and his wife, the defendant asserts that the state “improperly vouched for and bolstered the

credibility of several . . . [s]tate’s [w]itnesses during the [s]tate’s closing argument to the jury.”

However, in his brief the defendant only cites to one specific part of the state’s closing argument,

in which the prosecutor referred to S.R.’s testimony. As such, we will limit our review of this issue

to that part of the state’s closing argument.

The defendant did not raise a contemporaneous objection to the state’s closing argument.

This court has repeatedly held that when a prosecutor’s statement during closing argument was not

the subject of a contemporaneous objection, any issues regarding the statement are waived on appeal.

See Tenn. R. App. P. 36(a); State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App. 1999); State

v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Little, 854 S.W.2d 643, 651 (Tenn.

Crim. App. 1992). The issue is also waived by the defendant’s failure to raise it in his motion for

new trial. See Tenn. R. App. P. 3(e). Accordingly, we are limited to plain error review of this issue.

The record reflects that during the state’s closing statement, the prosecutor said, “I think the

best witness, [S.R.], she did not want to get up there. She was a reluctant witness but she was a

credible witness and everything that she said was consistent with what [T.R.] said and was not

consistent with what the Gerhardts said.” Thus, the first element of the plain error test is met.

In determining whether the prosecutor’s statements violated a clear and unequivocal rule of

law, we first note that our supreme court has recognized that closing argument is a valuable privilege

for both the state and the defense and that counsel is afforded wide latitude in presenting final

argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.1998); State v. Cone, 665

S.W.2d 87, 94 (Tenn. 1984). However, a party’s closing argument “must be temperate, predicated

on evidence introduced during trial, relevant to the issues being tried, and not otherwise improper

under the facts or law.” State v. Middlebrooks, 995 S.W.2d 550, 568 (Tenn. 1999). This court,

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citing to standards promulgated by the American Bar Association,9 has identified “five general areas

of prosecutorial misconduct”: (1) intentionally misstating the evidence or misleading the jury as to

inferences it may draw; (2) expressing the prosecutor’s personal belief or opinion as to the truth or

falsity of any testimony or evidence or the guilt of the defendant; (3) using arguments calculated to

inflame the passions or prejudices of the jury; (4) using arguments that would divert the jury from

its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence

of the accused or by predicting the consequences of the jury’s verdict; and (5) intentionally referring

to or arguing facts outside the record unless the facts are matters of public knowledge. State v.

Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).

As relevant to this case, this court has held that the prohibition against the prosecutor’s

expressing an opinion regarding the truth or falsity of any testimony or evidence also “prevents the

advocate from personally endorsing or vouching for [a particular witness or testimony] . . . the

witnesses must stand on their own.” Id. at 7 (citation omitted). Therefore, the prosecutor’s

statements that S.R. was “the best witness” and “a credible witness” were improper. However, we

cannot reach the same conclusion about the prosecutor’s statement that S.R.’s testimony was

consistent with T.R.’s testimony and inconsistent with the testimony offered by the defendant and

his wife. In that part of his closing argument, the prosecutor did not comment on the truthfulness

of the testimony offered by any of the four witnesses, and he did not accuse the defendant and his

wife of not being credible witnesses. Rather, the prosecutor compared the testimony of S.R., T.R.,

the defendant, and his wife, and made rational inferences based upon the testimony.

However, not all errors in closing argument necessitate a new trial. When a prosecutor’s

argument goes beyond the latitude afforded, the test for determining if reversal is required is whether

the improper statement was so inflammatory that it “affected the verdict to the prejudice of the

defendant.” Harrington v. State, 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965); see also State

v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007). Factors relevant to that determination

include: (1) the disputed conduct viewed in light of the circumstances and facts in the case; (2) any

curative measures taken by the trial court and the prosecution; (3) the prosecutor’s intent in making

the improper statements; (4) the cumulative effect of the prosecutor’s statements and other errors in

the record; and (5) the relative strength and weakness of the case. Gann, 251 S.W.3d at 460 (citing

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)). In this case, it does not appear that

the prosecutor’s statement labeling S.R. as a credible witness was intended to inflame the passions

of the jury. The statement was a fleeting and isolated one, one to which the defendant did not feel

compelled to object at trial. Furthermore, as was the case with the issue regarding the prosecutor’s

cross-examination of defense witnesses, the defendant has not established that he failed to object to

the closing argument for tactical reasons. Finally, as stated above the trial court instructed that the

jury was to be the sole judge of the credibility of witnesses, and on appeal we are to presume that

the jury followed the trial court’s instructions absent evidence to the contrary. Williams, 977 S.W.2d

at 106. Accordingly, we conclude that this issue does not necessitate plain error relief.

9

See American Bar Association, ABA Standards for Criminal Justice: Prosecution Function and Defense

Function §§ 3-5.8, 3-5.9 (3d ed. 1993).

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VI. Sentencing Hearing Transcript

On appeal, the defendant asserts that the trial court imposed an excessive sentence. In

arguing this issue in his brief, the defendant also asserts that the trial court improperly denied him

the transcript of the sentencing hearing, which prejudiced him by limiting his ability to “be provided

meaningful appellate review over a vital right.”

In Tennessee, “[t]here is no question . . . that an indigent defendant in a criminal prosecution

must be provided with the tools of an adequate defense or appeal when those tools are available for

a price to other defendants.” State v. Elliot, 524 S.W.2d 473, 475-76 (Tenn. 1975) (citations

omitted). “Generally, included in the basic tools has been a free transcript of prior proceedings in

the indigent defendant’s own case, where the transcript was needed to vindicate a legal right.” Id.

at 476 (citations omitted); see also Tenn. Code Ann. §§ 40-14-309, -312 (2006) (providing that

indigent defendants are to be provided with trial transcripts at state expense). In cases similar to this

one, where the defendant was not indigent at the outset of trial but finds himself indigent on appeal,

the defendant may “file a motion with the clerk of the trial court seeking the entry of an order

declaring him indigent, appointing counsel to represent him, and providing for the transcription of

the evidence and proceedings relevant to the issues which will be presented to the appellate court

for review.” State v. Draper, 800 S.W.2d 489, 495 (Tenn. Crim. App. 1990); see also Tenn. R. Crim.

P. 37(c).

In this case, the defendant followed the above-referenced procedure; after filing the

appropriate motions, the trial court declared the defendant indigent and ordered that, “to the extent

an official Court reporter was present to record the Court proceedings regarding [this case], [a]

transcript shall be prepared for those proceedings at State expense, pursuant to Tennessee Code

Annotated § 40-14-312.” No transcript of the sentencing hearing was prepared, but contrary to the

defendant’s argument, the missing transcript did not result from the trial court’s denying the

defendant his constitutional rights. Rather, although not specifically stated by the trial court or the

state, it apparently results from the fact that no court reporter was present at the sentencing hearing

to record or transcribe the proceedings. In at least two of his filings regarding the transcripts in this

case, the defendant stated that he was informed by the court reporter that at some point in May 2006,

before trial, defense counsel had requested that the court reporter stop recording the proceedings in

the defendant’s case. In these filings, the defendant also stated that the court reporter did not resume

recording the proceedings until December 2006, after the sentencing hearing was held. In at least

one other filing with the trial court, the defendant argued that the court reporter actually was present

during his trial and sentencing hearing, but he has presented no evidence to substantiate this

assertion. Accordingly, we conclude that the trial court did not intentionally withhold the sentencing

hearing transcript from the defendant, and we deny him relief on this issue.

VII. Sentencing

Having resolved the issue of the sentencing hearing transcript, we next turn our attention to

the defendant’s assertion that the trial court imposed an excessive sentence. The defendant argues

that the trial court improperly ordered him to serve jail time and that the counseling and curfew

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requirements imposed as part of his community corrections probation were unreasonable. The state

argues that the defendant has waived this issue on appeal by failing to include the transcript of the

sentencing hearing.

An appellate court’s review of sentencing is de novo on the record with a presumption that

the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the defendant

to show that the sentence is improper. This means that if the trial court followed the statutory

sentencing procedure, made findings of fact that are adequately supported in the record, and gave

due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Absent a transcript or statement of the evidence from the sentencing hearing, we are unable

to review this issue. The requirement that the defendant prepare a record that conveys a fair,

accurate, and complete account of what occurred with respect to the issues which form the basis of

his appeal applies to sentencing hearings. See State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim.

App. 1988); State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987); Tenn. R. App. P. 24(b).

“In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings

were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.

1991). Accordingly, we deny the defendant relief on this issue.

VIII. Ineffective Assistance of Counsel

The defendant next contends that he received the ineffective assistance of counsel at trial.

In his initial brief, the defendant bases his assertion on several arguments, including: (1) an

“irreconcilable conflict” between the defendant and trial counsel which resulted in an “adversarial

relationship”; (2) counsel’s failure to investigate certain issues; (3) counsel’s cross-examination of

a state’s expert witness which elicited impermissible testimony that bolstered the credibility of a

state witness; (4) counsel’s failure to object to a state’s expert witness’s “general diagnosis of

physical abuse and neglect of [the victim]”; (5) counsel’s failure to object to the prosecuting

attorney’s questions and closing argument as detailed above; and (6) counsel’s failure to call certain

witnesses and failure to prepare those defense witnesses who did testify. In other filings, the

defendant asserts numerous other grounds for his ineffective assistance of counsel claim.

The state argues that the defendant has waived this issue for failure to include it in his motion

for new trial. See Tenn. R. App. P. 3(e) (in jury trial, errors such as those regarding “misconduct

of jurors, parties, or counsel” must be raised in motion for new trial to be preserved on appeal).

However, as trial counsel still represented the defendant at the time the new trial motion was argued,

filing the motion at that time would have been impractical. The defendant did raise the issue in a

pro se “Motion to Vacate and Set Aside Void Judgment,” which the defendant filed pursuant to Rule

60.02 of the Tennessee Rules of Civil Procedure. However, at a hearing the trial court denied the

motion without considering any of the issues contained therein, noting, “Rule 60.02 does not apply

to this criminal case in the court’s opinion. If somebody disagrees with me, they can so state at the

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higher court, but that would not be a proper motion for me to take up in this criminal case.”

Under the Sixth Amendment to the United States Constitution, when a claim of ineffective

assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance

was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-372, 113 S. Ct. 838,

842-44 (1993). In other words, a showing that counsel’s performance falls below a reasonable

standard is not enough; rather, the petitioner must also show that but for the substandard

performance, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

The Strickland standard has been applied to the right to counsel under Article I, Section 9 of the

Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after satisfying

both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). The

performance prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s

representation fell below an objective standard of reasonableness or was “outside the wide range of

professionally competent assistance.” Strickland, 466 U.S. at 690. In Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975), our supreme court decided that attorneys should be held to the general

standard of whether the services rendered were within the range of competence demanded of

attorneys in criminal cases. The prejudice prong requires a petitioner to demonstrate that “there is

a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. “A reasonable probability means a probability

sufficient to undermine confidence in the outcome.” Id. Failure to satisfy either prong results in the

denial of relief. Id. at 697.

Although a defendant may raise an ineffective assistance of counsel claim on direct appeal,

this court has repeatedly noted that “the practice of raising ineffective assistance of counsel claims

on direct appeal is ‘fraught with peril’ since it ‘is virtually impossible to demonstrate prejudice as

required’ without an evidentiary hearing.” State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim.

App. 2001) (citations omitted). In this case, because the defendant’s ineffective assistance of

counsel claim was not raised in his motion for new trial, there has been no opportunity for the trial

court to make findings of fact as to the defendant’s stated issue. As such, “it is inappropriate for us

to consider the issue. Nevertheless, our abstention from considering the issue does not deprive the

defendant of an opportunity to have this issue reviewed in an appropriate post-conviction proceeding

if he so desires.” State v. Slater Belcher, No. 03C01-9608-CC-00299, 1997 WL 749392, at *6

(Tenn. Crim. App. Nov. 26, 1997); see also State v. Robert Kern Holloway, No. M2002-01904-

CCA-R3-CD, 2003 WL 22142497, at *8 (Tenn. Crim. App. Sept. 17, 2003) (reaching similar

conclusion); State v. Michael J. McCann, No. M2000-2990-CCA-R3-CD, 2001 WL 1246383, at

*13 (Tenn. Crim. App. Oct. 17, 2001) (same).

IX. Cumulative Error

The defendant argues that the “cumulative effect of the totality of trial errors when reviewed

together, prejudiced [the defendant] by depriving [h]im of his [s]ubstantial and [c]onstitutionally

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guaranteed [r]ights . . . .” However, “[b]ecause this court has found no error of substance on the part

of the trial court, cumulative error would not serve as a basis for relief.” State v. Steve Gass, No.

M2000-02008-CCA-R3-CD, 2002 WL 29477, at *16 (Tenn. Crim. App. Jan. 9, 2002). The

defendant is therefore denied relief on this issue.

X. Errors Asserted in Reply Brief

In his reply brief, the defendant argues three additional issues that he did not raise in his

initial brief. First, he asserts that the trial court did not have subject matter jurisdiction in this case.

Second, he was prejudiced by several state witnesses who committed perjury during their testimony.

Finally, he argues that his prosecution and trial in this case violated the Double Jeopardy Clause of

the United States Constitution.

The Tennessee Rules of Appellate Procedure permit the appellant to file a reply brief “in

reply to the brief of the appellee.” Tenn. R. App. P. 27(c). However, this court has held,

A reply brief is limited in scope to a rebuttal of the argument advanced in the

appellee’s brief. An appellant cannot abandon an argument advanced in his brief and

advance a new argument to support an issue in the reply brief. Such a practice would

be fundamentally unfair as the appellee may not respond to a reply brief.

Carruthers v. State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991). Accordingly, we will not address

the issues raised by the defendant for the first time in his reply brief.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial court

is affirmed.

_______________________________

D. KELLY THOMAS, JR., JUDGE

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