State of Tennessee v. Robert Oliver

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 25, 2025 Session

STATE OF TENNESSEE v. ROBERT OLIVER

Appeal from the Criminal Court for Washington County

No. 44567 Lisa Rice, Judge

No. E2023-01623-CCA-R3-CD

The Defendant, Robert Oliver, was convicted by a Washington County jury of aggravated

rape and aggravated assault, for which he received an effective sentence of twenty-eight

years’ incarceration. On appeal, the Defendant argues that (1) the evidence adduced at

trial was insufficient to support his conviction of aggravated rape, (2) the State committed

prosecutorial misconduct during closing arguments, and (3) the trial court erred by

ordering the Defendant to pay $60,000 in fines. Following our review, we conclude that

the trial court failed to make appropriate findings regarding its imposition of fines.

Therefore, we reverse the trial court’s sentencing determination regarding the fines and

remand this case for further proceedings consistent with this opinion. We otherwise

affirm the judgments of the trial court.

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

Judgments of the Criminal Court Affirmed in Part, Reversed in Part;

Case Remanded

W. MARK WARD, SP. J., delivered the opinion of the court, in which TIMOTHY L. EASTER

and MATTHEW J. WILSON, JJ., joined.

Brennan M. Wingerter, Assistant Public Defender — Appellate Director, Tennessee

District Public Defenders Conference (on appeal); Jeff Kelly, District Public Defender;

Akiah Highsmith, Johnson City, Tennessee (at motion for new trial and sentencing

hearings); and William C. Donaldson, Assistant District Public Defender (at trial), for the

appellant, Robert Oliver.

Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Steve Finney, District Attorney General; and Robin Ray, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural History

On January 10, 2019, a Washington County grand jury returned a two-count

indictment charging the Defendant with the aggravated kidnapping and aggravated rape

of the victim, C.H.! Following pretrial hearings, a Washington County grand jury

charged the Defendant in a superseding indictment with aggravated rape and aggravated

assault on January 7, 2020. The Defendant’s trial commenced on August 5, 2021.

A. Trial

1. The Victim’s Interview

Johnson City Police Department (“JCPD”) Investigator Brady Higgins testified

that on August 1, 2018, he was dispatched to interview the victim at Franklin Woods

Hospital regarding a possible “domestic altercation.” Investigator Higgins spoke with the

victim’s nurses before interviewing the victim and learned that the victim had been

admitted complaining of pain in her neck, back, and ribs following a possible sexual

assault. When Investigator Higgins entered the victim’s hospital room, he saw that she

wore a neck brace and had bruises on her arms and knees.

The victim told Investigator Higgins that she and her boyfriend, the Defendant,

had rented a room at the Super 8 motel in Johnson City on July 27, 2018. There, the

couple had consensual sex before getting into a “disagreement.” The victim attempted to

leave the motel room during the argument, but the Defendant grabbed her from behind

and began choking her. The victim lost and regained consciousness several times. The

first two times she awoke, she found the Defendant “on top of her” and holding his hand

against her throat. The third time she regained consciousness, she attempted to fight

against the Defendant, but the Defendant instructed her to “quit moving” and stated that

he “wasn’t done pissing in her.” The victim again lost consciousness, and when she

awoke, she found herself “lying in the floor in her own feces.”

The Defendant instructed the victim to take a shower, and afterwards, the two

went to the mall together. The victim told the Defendant that she had been receiving text

messages from her daughter and needed to leave. The Defendant permitted the victim to

leave but instructed her to return to pick him up from the mall. When the victim did not

do so, the Defendant began sending her text messages.

! It is the policy of this Court to refer to the victims of sexual offenses by their initials to protect

their privacy.

=o

Following her interview with Investigator Higgins, the victim wrote and signed a

statement summarizing her allegations. Investigator Higgins also took photographs of the

victim’s injuries, which were introduced into evidence along with the victim’s statement.

From these photographs, Investigator Higgins identified bruising on the victim’s arms

near her biceps, knees, the inside of her left thigh, and on the backside of her left leg near

her buttocks and hamstrings.

On cross-examination, Investigator Higgins testified that he took notes while he

interviewed the victim. He agreed that he did not specifically write that the victim said

she had been raped but instead “documented how she said that it occurred.” He further

recalled that the victim stated that she first had consensual sex with the Defendant

followed by nonconsensual sex.

2. The Victim’s Statement

In her written statement, the victim recalled that she and the Defendant drove

around town together prior to renting a room at the Super 8 motel. During their drive, the

victim was twice pulled over because her vehicle’s taillights were out. The victim and

the Defendant drove to Advance Auto Parts, where the Defendant attempted to fix her

brake lights, and then the Defendant instructed the victim to take him to the Super 8

motel. The victim placed the reservation under her name, and the Defendant paid for the

room.

While at the Super 8 motel, the victim and the Defendant had consensual sex

several times. Afterwards, the victim fell asleep, only to be awakened by the Defendant

telling her that she was “crazy.” The victim attempted to leave the motel room during the

ensuing argument, but the Defendant “came up behind [her] and choked [her] out.” The

victim lost consciousness. When the victim awoke, she began crying, at which point the

Defendant “got on top of [her] and pushed on [her] mouth and neck,” telling the victim

that he would kill her if she cried. The victim lost consciousness again, and when she

awoke, she attempted to fight the Defendant. In response, the Defendant “threw [her] on

the floor and got back on top of [her]” and “continued screwing” the victim until she

again lost consciousness. When she awoke, the victim found herself on the bed. The

Defendant told her not to move and that “he wasn’t done pissing in” her. The victim lost

consciousness and awoke on the floor, lying halfway under the bed in her urine and feces.

Shortly afterwards, “room service” called the motel room, and the Defendant

instructed the victim to take a shower. Once clean, the victim drove the Defendant to the

Red Lobster parking lot, where he gave her a shirt to wear and Ibuprofen to ease the pain

from her injuries. He instructed the victim not to cry and warned that if she “didn’t start

looking happy,” he would “do it worse.” The Defendant also told the victim that he loved

her and instructed her to hold his hand while they walked around the mall.

3 x

3. The Victim’s Testimony

The victim testified that she and the Defendant were high school friends who had

rekindled their friendship in 2018 via Facebook. The two began dating that same year.

On July 27, 2018, after spending a night together sleeping in the victim’s vehicle, the

victim and the Defendant decided to rent a room at the Super 8 motel. The Defendant

complained that the first room he and the victim were provided was not cold enough, so

they were relocated to a different room. The victim and the Defendant later left the motel

to purchase dinner and whiskey, which they ate and drank in their motel room. After she

and the Defendant had consensual sex, the victim fell asleep. When she awoke later in

the evening, she saw that the Defendant had finished the bottle of whiskey. The victim

and the Defendant again had consensual sex but soon began arguing after the Defendant

“said something” to the victim.

The victim threatened to leave the motel during the argument, and the Defendant

responded that he would remove the tires from her vehicle to prevent her from doing so.

When the victim began dressing herself, the Defendant grabbed her from behind and

lifted her off the ground. The Defendant then choked the victim, and the victim felt

“things popping” in her back and neck before losing consciousness. The victim awoke

on the floor and attempted to scream for help, but the Defendant grabbed her by her hair,

pushed her head back, and covered her mouth with his hand. The Defendant pushed the

victim onto her back, moved her near the bed, and told her to be quiet. He then pressed

his forearm against the victim’s throat, knelt on top of her, and removed her pants. The

victim attempted to push the Defendant away from her, to which the Defendant

responded by punching her in the face. He then pressed his fingers into her thighs,

punched her in the ribs, “body-slam[med]” her into the floor, and flipped her onto her

stomach. The victim recalled that her teeth hit the floor and that her nails bent backwards

as she struggled against the Defendant. The Defendant then picked the victim up, placed

her on the bed, and pressed her face into the mattress. The victim struggled to breathe

and again lost consciousness.

When the victim awoke, she found the Defendant holding her on the bed. The

victim attempted to struggle away from the Defendant, but the Defendant held her down,

squeezed her thigh, and stated, “Don’t move. I’m not done pissing in you yet.” The

victim recalled that the Defendant was “inside” her “at some point.” Afterwards, the

Defendant lifted the victim off the bed and “slammed” her against the floor twice. The

victim lost consciousness again, and when she awoke, she found that she had “used the

bathroom all over [herself].” The Defendant told the victim she could leave. The victim

collected her clothing and her cell phone and went to take a shower. When the Defendant

noticed that the victim’s cell phone was missing, he forced his way into the bathroom and

began “tearing the place apart” until he discovered that the victim had hidden it under a

towel. The Defendant instructed the victim to take a shower, “to look nice,” and to

“cover up all the marks.”

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Later, the Defendant instructed the victim to drive him to the Red Lobster located

near the mall. The victim recalled that she wore a hooded sweatshirt to cover her

injuries, but when she parked her vehicle, the Defendant told her to remove it and to wear

a white T-shirt he gave her instead. The Defendant also gave the victim Ibuprofen for her

injuries.

The victim and the Defendant walked around the mall, and the victim recalled that

she wore a skirt and the white T-shirt the Defendant gave her. The victim stated that all

her injuries were visible while she and the Defendant walked around the mall, and that

the Defendant told her that no one would help her. Afterwards, the victim and the

Defendant returned to the victim’s vehicle, where the victim told the Defendant that

R.O.,” her ex-mother-in-law, had recently sent her a text message stating that her son was

at R.O.’s house. While the Defendant searched for his wallet in the trunk of the victim’s

vehicle, the victim sent a text message to R.O. asking her to reply with a message stating

that her son needed her. She also asked her not to “let him know that I just messaged

you,” and deleted her text messages to R.O. from her phone. R.O. did as the victim

asked, and the Defendant eventually returned to the vehicle. The victim told the

Defendant that her son needed her, and the Defendant responded that she could visit her

son at R.O.’s home. However, he instructed her to return to pick him up from the mall in

two hours.

The victim drove to R.O.’s home, where she found R.O., R.O.’s friend, and the

victim’s son, daughters, and ex-husband already present. The victim spent the night at

R.O.’s home and did not return to the mall. The victim recalled that she was unable to

sleep and attempted suicide the first night after her assault. Though the victim’s children

encouraged her to get treatment for her injuries, the victim refused to do so because she

was frightened of the Defendant. The victim remained at R.O.’s home for several days,

during which time she began speaking with the Defendant through text messages. The

victim testified that in one exchange, she told the Defendant that he had badly injured her,

to which the Defendant responded, “At least I didn’t do it in your butt the whole time.”

The victim ultimately allowed her daughter and her daughter’s boyfriend to take her to

the hospital several days after her assault.

The victim testified that she had undergone “a lot of therapy” to try to understand

her rape and assault. She also explained that she was unable to recall the specifics of

what the Defendant had done to her during the days immediately following her rape and

assault, which she stated was the reason for any inconsistencies between her trial

testimony, her interview, and her statement to Investigator Higgins.

2 In an effort to further protect the victim’s privacy, we will refer to members of her extended

family by their initials, as well.

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On cross-examination, the victim agreed that her description of her rape and

assault during her interview with Investigator Higgins and in her written statement was

not as specific as her trial testimony. She specifically noted that she had not previously

mentioned that the Defendant grabbed her hair, placed his knees on her body, dragged her

to the middle of the floor of the motel room, slammed her onto the floor, or that she took

her cell phone into the bathroom with her. She explained that she had been unable to

recall these details in the days immediately following her rape and assault and that she

had undergone extensive therapy to better understand the incident in the years since. A

copy of the receipt from the Super 8 motel was introduced through the victim’s

testimony, which stated that she had reserved a room and later been assigned to Room

121 for one night on July 27, 2018.

4. Officer Richardson’s Testimony

Former JCPD Officer Bret Richardson testified that he assisted Investigator

Higgins in interviewing the victim on August 1, 2018. He recalled that the victim was

“very upset, crying, and withdrawn” during her interview. He noted that she had several

visible injuries which he believed to be consistent with her statement.

On August 3, 2018, Officer Richardson visited the Super 8 motel and found the

Defendant in Room 121. He later interviewed the Defendant. Officer Richardson

recalled that the Defendant waived his Miranda rights and stated that he and the victim

had spent the night at the Super 8 motel, where they had consensual sex. The Defendant

and the victim later got into an argument that devolved into a physical fight. The

Defendant stated that the victim “struck him in the head area while he was sitting on the

bed” and that he responded by grabbing the victim and squeezing his arms around her to

restrain her. He stated that the victim later complained that her back and neck were sore.

Officer Richardson recalled that the Defendant gave a description of the injuries

and bruises the victim sustained during their fight. Officer Richardson testified that this

description was not consistent with the victim’s injuries on August 1, 2018. He also

recalled that the Defendant consented to a search of his cell phone and that detectives

were unable to recover anything from the device.

On cross-examination, Officer Richardson testified that the victim told him she

was afraid of the Defendant because he sent her threatening text messages following her

rape and assault. The victim later provided records of these text messages, which Officer

Richardson reviewed and described as non-threatening. He also recalled that officers

were unable to locate the victim prior to the Defendant’s preliminary hearing and were

unsure of whether she would testify, but she ultimately did so.

5, The Defendant’s Interview

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A recording of the Defendant’s August 3, 2018 interview with Officer Richardson

was played for the jury. In the interview, the Defendant stated that he and the victim

rented a room at the Super 8 motel on the previous Friday night. While there, he and the

victim had consensual sex and drank whiskey. The Defendant stated that he and the

victim fought “every time we drink,” and that they soon got into an argument that

devolved into a physical fight when the victim hit the Defendant in his head. To restrain

the victim, the Defendant wrapped his arms around her and squeezed until she agreed that

she had calmed down. When the Defendant released the victim, the victim began hitting

him again, so the Defendant again squeezed his arms around her. In doing so, the

Defendant inadvertently choked the victim. The Defendant averred that he did not realize

the victim was unable to breathe until she began “claw[ing]” at his arm. The Defendant

stated he promptly released the victim. He explained that this mistake was due to the

victim’s being a “small” and “skinny” person. He recalled that the victim later

complained that her neck and back hurt and developed a “red mark” on her neck.

After their fight, the Defendant and victim went to sleep. When they awoke, they

again had consensual sex and left the motel room. The victim parked her vehicle in the

Red Lobster parking lot, and the two walked around the nearby mall for a short time until

the victim received a text message informing her that her son would soon be visiting

R.O.’s home. The victim told the Defendant that she would leave, visit her son, and

return later to collect him from the mall. The Defendant waited several hours for the

victim to return, and when she did not, he called Lacy Barnett, who he described as

another of his girlfriends, to ask her to pick him up. Shortly after Ms. Barnett collected

the Defendant from the mall, the victim texted the Defendant to ask where he was, telling

him that she was worried for him and had been driving around to try to find him. The

Defendant ignored these text messages and spent the night at the Quality Inn with Ms.

Barnett, The next day, the Defendant and Ms. Barnett rented a room at the Super 8 motel,

where they were coincidentally assigned Room 121.

The Defendant denied that he raped the victim or that he picked her up and

slammed her against the floor at any time during their fight. The Defendant also denied

that the victim lost consciousness during their fight. He noted that he once attempted to

initiate sex with the victim during their stay at the Super 8 motel but stopped these

attempts when the victim stated she did not wish to have sex again. He stated that he

believed that “everything was fine” between himself and the victim following their stay

at the Super 8 motel until the victim sent him a text message stating that she wished to

end their relationship. Several days later, the victim reversed course, telling the

Defendant she wished to mend their relationship.

The State rested. Following a Momon colloquy, the Defendant elected to testify.

6. The Defendant’s Proof

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The Defendant testified that he and the victim first met while attending high

school in Hawaii. Years later, they reconnected and began dating. During their

relationship, the Defendant purchased a cell phone for the victim but took it back from

her when they broke up. Several days before July 27, 2018, the victim sent a text

message from R.O.’s cell phone asking to have her cell phone back. The Defendant told

the victim that he was staying at the Quality Inn, and the victim visited him and spent the

next three nights with the Defendant there. On July 26, 2018, the Defendant and the

victim left the Quality Inn and drove to R.O.’s home. While there, the victim and R.O.

began arguing, and the victim and the Defendant ultimately left R.O.’s home to sleep in

the victim’s vehicle.

On July 27, 2018, the Defendant and the victim reserved a room at the Super 8

motel. As they could not immediately check into their room, they drove to a nearby

laundromat and washed their clothes. The Defendant recalled that the victim was pulled

over twice because one of her taillights was out.

The Defendant testified that he and the victim were initially assigned a room on

the second floor of the Super 8 motel. Upon realizing that the air conditioner in this room

was not functional, the Defendant requested to move, and he and the victim were

reassigned to Room 121. The victim took a shower and napped, and then she and the

Defendant left to purchase dinner and whiskey, which they ate and drank in their motel

room. While drinking, the victim and the Defendant watched videos on the Defendant’s

cell phone, including one discussing “people cheating on their boyfriends and

girlfriends.” This video prompted the Defendant to ask the victim about rumors that the

victim had recently “trad[ed] sexual favors for money” to purchase methamphetamine.

The victim repeatedly denied this rumor, and an argument ensued in which the victim

punched the Defendant’s head. The Defendant stated that the victim usually struck him

in this manner when they fought.

The Defendant testified that he attempted to block the victim’s punches, and when

he was unsuccessful, he grabbed the victim’s waist and “pinned” her arms down to keep

her from hitting him. The victim struggled to get away from the Defendant, but the

Defendant told her he would not release her until she calmed down. When she stated that

she had calmed, the Defendant released the victim. The victim promptly began hitting

the Defendant again, so the Defendant tried to restrain her again. However, because the

victim was “so short,” the Defendant inadvertently wrapped his arm around the victim’s

neck and choked her. The Defendant testified that he promptly released the victim upon

realizing that she was unable to breathe, and that this ended their fight.

The Defendant stated that he and the victim had consensual sex the next morning

and later decided to visit the mall. Because the parking lot was full, the victim parked her

vehicle at a nearby Red Lobster. The victim and the Defendant walked around the mall

together until the victim stated that her ex-husband was bringing their son to R.O.’s

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home. The Defendant told the victim that he did not want to visit R.O.’s home, so they

parted ways. The Defendant recalled that the victim promised to return to collect him

soon and that he waited for her to do so until 8:00 p.m. After concluding that the victim

was not coming back for him, the Defendant called Ms. Barnett to pick him up from the

mall.

On August 1, 2018, several of the Defendant’s friends asked him for details

regarding a “big argument” between the Defendant and the victim. The Defendant

informed these friends of the rumors of the victim’s “terrible drug problem” and told

them “what really happened” during their stay at the Super 8 motel. The Defendant

testified that he believed the victim had falsely accused him of raping her after she

learned that the Defendant had “made her out to be a meth whore” and that the Defendant

had been “cheating on her” with Ms. Barnett.

The Defendant reviewed Investigator Higgins’ photographs of the victim’s

injuries. He identified redness around the victim’s collarbone, which he stated was

caused by her wearing a neck brace. He noted bruises on the victim’s arms, which he

stated were the results of a fight he and the victim had had on July 21, 2018, which the

victim’s stepfather had interrupted by pulling the victim away from the Defendant. He

testified that the victim’s legs had been bruised on July 26, 2018, when she fell and struck

R.O.’s nightstand while attempting to help her into bed. The Defendant also identified

“rug burn” on the victim’s knees and stated that this stemmed from their having sex in the

victim’s vehicle.

The Defendant denied that he raped the victim. The Defendant also noted

inconsistencies in the victim’s allegations throughout her statement to the police, her

testimony at his preliminary hearing, and her trial testimony. He specifically noted that

the victim testified that the Defendant attacked her during their argument but wrote in her

statement that the Defendant attacked her while she was sleeping.

On cross-examination, the Defendant stated that he wanted to mend his

relationship with the victim following their argument and maintained that he still wished

to do so prior to his August 3, 2018 interview. He testified that though the victim told

him that she had difficulty moving her neck and that it was sore after their fight, they had

consensual sex the next morning, and the victim did not protest that her neck was injured.

However, as they walked around the mall, the victim began “complaining more and

more.” The Defendant reiterated that he did not cause the victim’s injuries and

maintained that she did not lose consciousness during their fight or during sex.

The Defendant rested.

7. The State’s Rebuttal Proof

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In rebuttal, the State called the victim’s daughter, E.H., to testify. E.H. recalled

that on July 28, 2018, she visited R.O. at her home. While there, the victim arrived

“holding herself’ and looking “battered up.” She noted that the victim struggled to walk

and stand upright and appeared to be in pain.

The State also recalled the victim to testify. The victim stated that she and her

mother fought one another on July 21, 2018, and that her mother grabbed her by her wrist

and “dragged” her. The victim further maintained that the bruises depicted in

Investigator Higgins’ photographs stemmed from her July 28, 2018, assault and rape.

She denied the Defendant’s assertions that her injuries had been caused by her having sex

in her vehicle or from wearing a neck brace.

The State rested. Upon this proof, the jury convicted the Defendant as charged.

The jury also elected to levy fines of $50,000 for the Defendant’s conviction of

aggravated rape and of $10,000 for his conviction of aggravated assault.

B. Sentencing Hearing

Following the withdrawal of trial counsel and the appointment of new counsel, the

trial court held a sentencing hearing on November 9, 2022. The parties agreed that the

Defendant qualified as a Range I standard offender for his aggravated rape conviction and

as a Range II multiple offender for his aggravated assault conviction. Following the

parties’ arguments, the trial court imposed midrange sentences of twenty years and eight

years for the Defendant’s convictions of aggravated rape and aggravated assault,

respectively. See Tenn. Code Ann. §§ 39-13-502, 39-13-102, 40-35-112(a)(1), (b)(3).

The trial court aligned these sentences consecutively to one another, resulting in an

effective sentence of twenty-eight years’ incarceration. The trial court approved the fines

imposed by the jury.

The Defendant filed a timely but unsuccessful motion for new trial. This timely

appeal followed.

II. Analysis

On appeal, the Defendant argues that (1) the evidence adduced at trial was

insufficient to support his conviction of aggravated rape, (2) the State committed

prosecutorial misconduct during closing arguments, and (3) the trial court erred by

ordering the Defendant to pay $60,000 in fines. We will address these issues in turn.

A. Sufficiency

The Defendant first argues that the evidence adduced at trial was insufficient to

support his conviction of aggravated rape. Specifically, he contends that no rational juror

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could have accredited the victim’s unreliable testimony, that the State failed to prove that

the victim’s bodily injuries stemmed from her rape or that he unlawfully penetrated the

victim, and that the length of the jury’s deliberations and its returning of a note stating

that it was hung on the charge of aggravated rape reflects “reasonable doubt.” The State

responds that the evidence was sufficient.

The standard of appellate review for a defendant’s challenge to the sufficiency of

the convicting evidence is deferential to the jury’s verdict. State v. Lyons, 669 S.W.3d

775, 791 (Tenn. 2023), This court reviews such challenges in the light most favorable to

the State and if, after drawing all reasonable inferences from the evidence adduced at trial

in the State’s favor, it appears that “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,” sufficient evidence exists to

support the jury’s verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). “A guilty verdict by the jury, approved

by the trial court, accredits the testimony of the witnesses for the State and resolves all

conflicts [in the evidence] in favor of the prosecution’s theory.” State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997) (citing State v. Grace, 493 S8.W.2d 474, 476 (Tenn.

1973)). Thus, in reviewing the sufficiency of the evidence, this court does not reweigh

the evidence or substitute its own inferences for those drawn by the trier of fact,

Dorantes, 331 $.W.3d at 379, as the jury’s verdict of guilty resolves “questions regarding

witness credibility, the weight to be given the evidence, and factual issues raised by the

evidence,” State v. McKinney, 669 S.W.3d 753, 773 (Tenn. 2023) (citing State v.

Majors, 318 S.W.3d 850, 867 (Tenn. 2010)). The defendant bears the burden of proving

the insufficiency of the convicting evidence on appeal. State v. Thomas, 687 S.W.3d

223, 249 (Tenn. 2024) (citing State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000)).

In order to convict a defendant of the offense of aggravated rape as charged in this

case, a jury must find beyond a reasonable doubt that the defendant unlawfully sexually

penetrated the victim and that the defendant caused the victim bodily injury. Tenn. Code

Ann. § 39-13-502(a)(2). Sexual penetration is defined as “sexual intercourse . . . or any

other intrusion, however slight, of any part of a person’s body or of any object into the

genital or anal openings of the victim’s the defendant’s or any other person’s body.”

Tenn. Code Ann. § 39-13-501(7). Bodily injury is defined as “a cut, abrasion, bruise,

burn or disfigurement, and physical pain or temporary illness or impairment of the

function of a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-

106(a)(3).

In this case, both the Defendant and the victim testified that on July 27, 2018, they

reserved a room at the Super 8 motel. They further agreed that after they ate dinner and

drank whiskey, an argument ensued that escalated into a physical fight. Additionally, the

victim stated in her interview, wrote in her statement, and testified at trial that the

Defendant initiated the fight after she attempted to leave the motel room during their

argument. The victim invariably recalled losing consciousness multiple times, that the

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Defendant choked her repeatedly, that she attempted to fight against him, that he at one

point instructed her not to move because he was “not done pissing in [her] yet,” and that

she regained consciousness the final time lying on the floor and surrounded by her own

urine and feces. The victim noted in her written statement that on one occasion in

between her bouts of unconsciousness, she attempted to fight back against the Defendant

but was thrown back onto the floor, where the Defendant “got back on top of [her]” and

“continued screwing” her. In her trial testimony, she also noted that as she attempted to

fight against the Defendant, the Defendant pressed his hands into her thighs, hit her,

yelled at her to be quiet, and “continue[d] to penetrate [her].” She further testified that

the Defendant was “inside” her “at some point.” When the victim ultimately sought

treatment at Franklin Woods Hospital, Investigator Higgins noted that she had bruises on

her arms near her biceps, knees, the inside of her left thigh, and on the backside of her

left leg near her buttocks and hamstrings, which Officer Richardson testified were

consistent with her account of her rape and assault.

This evidence is sufficient to sustain the Defendant’s conviction for aggravated

rape. Though the Defendant argues that no rational juror could accredit the victim’s

testimony because of its inclusion of details excluded from her pretrial interview and

statement, this argument was presented to the jury during the Defendant’s cross-

examination of the victim and his closing argument. Additionally, the victim testified that

she was unable to recall specific details in the days following her rape and assault and

had since undergone extensive therapy to better understand the incident. Relatedly, the

Defendant further posits that the evidence is insufficient because the photographs of the

victim’s injuries do not detail every injury that the victim would have suffered if her

testimony were true, and that inasmuch as they corroborate the victim’s version of events,

they could also have been the result of her assault and her previous consensual sexual

encounters with the Defendant. These arguments are rooted in a theory that the victim’s

testimony is unreliable because of conflicting evidence. However, the job of resolving

conflicts in the evidence resides with the jury, not the appellate courts. McKinney, 669

S.W.3d at 773. The jury was presented with each of these conflicts in the evidence and

resolved them by accrediting the victim’s testimony and convicting the Defendant. We

will not disturb the jury’s credibility finding on appeal. Dorantes, 331 S.W.3d at 379; see

also State v. Tate, No. M2011-02128-CCA-R3-CD, 2013 WL 3964122, at *10 (Tenn.

Crim. App. July 31, 2013) (rejecting a challenge to the sufficiency of the convicting

evidence under the theory that the victim’s trial testimony was incredible because it was

more detailed than her previous statements).

Further, the State introduced sufficient proof of both the Defendant’s unlawful

penetration of the victim and the bodily injuries she suffered during that unlawful

penetration to sustain the Defendant’s conviction for aggravated rape. Though, to be

sure, the victim did not state when the Defendant first penetrated her, she nevertheless

recalled in her written statement and testimony that the Defendant rebuffed her attempts

to escape his attacks and “continued screwing” and “continue[d] to penetrate [her].” At

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trial, she agreed that the Defendant was “inside” her “at some point,” and throughout all

her accounts, she recalled that the Defendant told her not to move near the end of her rape

because he was “not done pissing in [her] yet.” Proof of even the slightest sexual

penetration is sufficient to sustain a conviction of rape. See Hart v. State, 21 S.W.3d 901,

905 (Tenn. 2000) (‘“[T]here is . . . sexual penetration in a legal sense if there is the

slightest penetration of the sexual organ of the female by the sexual organ of the male.”)

(internal quotation marks omitted) (citing Walker v. State, 273 S.W.2d 707, 711 (1954)).

Additionally, though sexual penetration is statutorily defined, the question whether such

penetration occurred is a question of fact resolved by the jury in consideration of the

evidence. State v. Williams, No. M2005-00836-CCA-R3-CD, 2006 WL 3431920, at *16

(Tenn. Crim. App. Nov. 29, 2006) (citing State v. Bowles, 52 8.W.3d 69, 74 (Tenn.

2001)). Accordingly, this proof is sufficient to prove that the Defendant penetrated the

victim. Moreover, the victim testified that throughout her rape, the Defendant strangled

her, slammed her against the floor, punched her in the ribs, and that she lost

consciousness on four occasions. She described also experiencing lasting pain in the

days following her rape and assault, and every witness in this case testified that she

suffered bruising. This proof is sufficient to prove her bodily injuries through bruising,

physical pain, and temporary loss of her mental faculties. See Tenn. Code Ann. § 39-11-

106(a)(3).

Perhaps in acknowledgment of this Court’s deference to the jury’s verdict in

consideration of the sufficiency of the convicting evidence, the Defendant contends that

“while the eventual verdicts reflect the jury’s accrediting of [the victim’s] version of

events, the jury’s deliberations and questions also reflect reasonable doubt along the

way.” The Defendant points to the fact that the jury began its deliberations at 10:34 a.m.

and concluded them at 4:41 p.m. on August 6, 2018, after returning two notes in which it

indicated it was hung on the aggravated rape charge and asking for clarification as to how

to consider lesser-included offenses in its deliberation to support this claim. However,

the length and duration of a jury’s deliberation has no bearing on the correctness of its

conclusions or the validity of its verdict. State v. Spadafina, 952 S.W.2d 444, 451 (Tenn.

Crim. App. 1996) (citing Anglin v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App.

1977)). Furthermore, this Court does not attempt to divine what occurred behind closed-

doors during the jury’s deliberations. State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015)

(noting the “longstanding position of honoring and respecting a jury’s verdicts” in the

contest of a challenge to inconsistent verdicts). Although the jury indeed indicated that it

was, at one point, hung as to the charge of aggravated rape, it later unanimously

convicted the Defendant, as confirmed by the foreperson of the jury. This argument is

without merit. Because the evidence in this case is sufficient to sustain the Defendant’s

conviction of aggravated rape, he is not entitled to relief.

B. Improper Closing Argument

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The Defendant next argues that the State committed prosecutorial misconduct

during closing argument by inappropriately injecting inflammatory social, emotional, and

prejudicial issues broader than his guilt or innocence and by vouching for the victim’s

testimony. The Defendant concedes that this issue is waived for failure to object at trial

or to raise the issue in his motion for new trial but nevertheless requests that this Court

conduct plain error review. The State responds that plain error review is not warranted.

The Defendant challenges the following statements made by the prosecutor during

closing arguments:

J-U-S-T-I-C-E. Most often we pronounce it “just us.” There’s an

“us” in the beginning and there is an “us” at the end, which is the way the

justice system is intended to work. Us, the accused, and us, the victim,

both have rights that must be protected.

But for victims of sexual assault type crimes, the justice system is —

is just as it is spelled. There is an “us” and there is an “ice.” An “us” for

the accused and a wall of “ice” for the victim.

Victims of sexual crimes are often blamed, ridiculed, shamed, and

looked down upon. Especially when it is an acquaintance rape. The victim

is put on trial whether it’s an employer, a family member, a boyfriend, a

spouse, a colleague.

Which would explain the reluctance to come forward and tell —

relive your victimization not only to the law enforcement officers that you

have to explain that to, but then to come into a courtroom and sit before 12

people and relive that, tell that in a group of people you’ve never met

before, and then to be put on trial yourself.

Rape is a — is a physical act. But the psychological impact lasts way

longer than the injure — after the injuries heal.

Justice is depicted as a lady wearing a blindfold and holding a set of

scales. The blindfold represents that justice is blind, blind to race, religion,

creed, sexual orientation, socioeconomic status, privilege, poverty, prior

criminal history, [or] lack of prior criminal history.

The scales balance the rights of the defendant with the rights of the

accused. The scales represent that the trial begins on a level playing field.

We are all supposed to be on that level playing field. But it is the weight of

the evidence that tip the scales from guilty — excuse me, from innocent to

guilty.

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Justice has not always lived up to the promise. And today the State

asks you to live up to justice, to set aside preconceived notions, and to

restore the balance and reach a verdict based on the evidence presented

before you.

In rebuttal, the State continued,

But there are rapists in which the victim goes to work with them

every day after the rape occurs. There are rapists in which the victim lays

down on nights because it’s their spouse. Because they don’t expect them

to tell any — the victim to say anything. Or if they do, who’s going to

believe them? “It’s their word against mine.”

So those things are not indicative necessarily of innocence because

an innocent person could say, “I’m not talking to the police without an

attorney. Not because I did anything, but I just think it’s best for me if I

have an attorney present.” Doesn’t mean they’re guilty, just means they

choose to have an attorney.

But what you heard on the stand from the victim was real and it’s

evidence and it’s an accurate reflection of what occurred to her on July the

27th and July the 28th.

As the Defendant correctly notes, this issue is waived for his failure to raise it

either at trial or in his motion for new trial. See Tenn. R. App. P. 3(e) (“[N]o issue

presented for review shall be predicated upon error in the . . . misconduct of jurors,

parties or counsel, or other action committed or occurring during the trial of the case...

unless the same was specifically stated in a motion for a new trial.”); State v. Enix, 633

S.W.3d 692, 700-01 (Tenn. 2022) (“[A] defendant’s failure to contemporaneously object

to alleged prosecutorial misconduct during closing argument results in waiver on

appeal.”). Significantly, a contemporaneous objection provides the trial court with the

opportunity to assess the allegedly improper argument and, if necessary, caution the

prosecution or issue a curative instruction. State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn.

2010). It further provides the State the opportunity to correct or clarify any statements

which might appear to have crossed the line into impropriety.

However, “[w]hen necessary to do substantial justice, an appellate court may

consider an error that has affected the substantial rights of a party at any time, even

though the error was not raised in the motion for a new trial,” through plain error review.

Tenn. R. App. P. 36(b). Under plain error review, relief will only be granted when all

five of the following prerequisites are met:

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(1) the record must clearly establish what occurred in the trial court; (2) a

clear and unequivocal rule of law must have been breached; (3) a

substantial right of the accused must have been violated; (4) the accused

must not have waived the issue for tactical reasons; and (5) consideration of

the error is necessary to achieve substantial justice.

State v. Rimmer, 623 S.W.3d 235, 255-56 (Tenn. 2021) (citing State v. Martin, 505

S.W.3d 492, 504 (Tenn. 2016). If any one of these factors is not satisfied, this Court

need not consider the remaining factors. State v. Smith, 492 S.W.3d 224, 232 (Tenn.

2016). The Defendant bears the burden of persuasion to show that he is entitled to plain

error relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007). Additionally, the plain

error must have been of such magnitude that it probably changed the outcome of the trial.

Smith, 492 §.W.3d at 232 (citing State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010)).

“Closing arguments serve to sharpen and to clarify the issues that must be resolved

in a criminal case” and enable “the opposing lawyers to present their theory of the case

and to point out the strengths and weaknesses in the evidence to the jury.” State v.

Hawkins, 516 S.W.3d 1, 47 (Tenn. 2017) (internal quotation marks omitted) (quoting

State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008)). Accordingly, our supreme court has

often described closing argument as “a valuable privilege that should not be unduly

restricted.” State v. Reid, 164 S.W.3d 286, 320 (Tenn. 2005). That said, the trial court

maintains discretion to control closing arguments, and its action in either restraining or

refusing to check the parties will not be reversed on appeal absent a showing of an abuse

of discretion. White v. State, 356 S.W.2d 411, 417 (1962). “The bounds of proper

argument largely depend upon the facts in evidence, the character of the trial, and the

conduct of opposing counsel.” Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.

1995).

In general, closing arguments must be temperate, predicated on the evidence

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

under the facts or the law. State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1997).

Both the prosecution and defense counsel are equally “expected to be zealous advocates,

and as a result, should be afforded great latitude in both the style and the substance of

their arguments.” Hawkins, 516 S.W.3d at 47 (citing Banks, 271 S.W.3d at 130-31).

The prosecution’s right to use colorful and forceful language is no less than defense

counsel’s; so long as the parties do not stray from the evidence and the reasonable

inferences that may be drawn therefrom, “make derogatory remarks[,] or appeal to the

jurors’ prejudices,” they are generally permitted considerable leeway in their oratorical

emphasis. Enix, 633 S.W.3d at 701 (citing Banks, 271 S.W.3d at 131); see also Post v.

State, 580 S.W.2d 801, 808 (Tenn. Crim. App. 1979). However, prosecutors “must not

lose sight of their duty to seek justice impartially and their obligation to see to it that the

defendant receives a fair trial.” Hawkins, 516 S.W.3d at 47-48 (internal quotation marks

omitted) (quoting Banks, 271 S.W.3d at 131).

-16-

This Court has recognized five general areas of prosecutorial misconduct which

may arise during closing argument:

(1) intentionally misstating the evidence or misleading the jury as to the

inferences it may draw; (2) expressing personal beliefs or opinions as to the

truth or falsity of any testimony or the guilt of the defendant; (3) inflaming

or attempting to inflame the passions or prejudices of the jury; (4) injecting

issues broader than the guilt or innocence of the accused; and (5) arguing or

referring to facts outside the record unless the facts are matters of common

knowledge.

State v. Jones, 568 S.W.3d 101, 145 (Tenn. 2019) (citing State v. Goltz, 111 $.W.3d 1, 6

(Tenn, Crim. App. 2003)). As “[i]t is impossible to set out in detail what can and cannot

be said in closing argument,” this list is not exhaustive. Goltz, 111 S.W.3d at 6.

This Court will not overturn a defendant’s conviction unless the prosecution’s

closing argument is so improper or inflammatory that it prejudiced the jury’s verdict

against the defendant. Jones, 568 S.W.3d at 145 (citing Banks, 271 S.W.3d at 131, and

Reid, 164 S.W.3d at 344). As other courts have noted, the line between proper and

improper closing argument is often thin, and our inquiry into whether the State crossed

that line is necessarily context-specific. United States v. Moore, 651 F.3d 30, 53 (D.C.

Cir. 2011) (“Because the line between permissible and impermissible arguments will not

always be clear, the inquiry is necessarily contextual.”); State v. Martinez, 311 Kan. 919,

923 (Kan. 2020) (“Often the line between permissible and impermissible argument is

context dependent.”); Kinseth v. Weil-McLain, 913 N.W.2d 55, 73 (lowa 2018)

(“Attorneys have a duty to refrain from crossing the admittedly hazy line between

zealous advocacy and misconduct.”). Our analysis of whether the prosecutor’s

statements in closing argument crossed the thin line into impermissibility is guided by the

following factors:

(1) the conduct complained of viewed in context and in light of the facts

and circumstances of the case; (2) the curative measures undertaken by the

Court and the prosecution; (3) the intent of the prosecutor in making the

improper statement; (4) the cumulative effect of the improper conduct and

any other errors in the record; and (5) the relative strength or weakness of

the case.

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (adopting the factors outlined in Judge

v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

The Defendant contends that he is entitled to plain error review because of a clear

and unequivocal breach of the law. Specifically, he contends that the State committed

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prosecutorial misconduct through inappropriate and inflammatory references to victims

of acquaintance rape and to the iconography of “Lady Justice,” as well as by vouching for

the truth of the victim’s testimony. We will consider these arguments in turn.

1, Acquaintance Rape and “Lady Justice” References

The Defendant argues that the prosecutor’s references to victims of acquaintance

rape and to “Lady Justice” crossed the line into prosecutorial misconduct by

impermissibly (1) inflaming the passions of the jury, (2) injecting issues broader than the

Defendant’s guilt or innocence, (3) asking the jurors to convict the Defendant in order to

“restore the balance” of justice for sexual assault victims, (4) asking the jury to “send a

message” by its verdict, (5) arguing “the need for general deterrence, and (6) urging the

jury to convict the Defendant in retribution for the treatment of sexual assault victims.

We find no impropriety in the prosecutor’s references to victims of acquaintance

rape and their treatment by society. “In a closing argument, a prosecutor may resort to

poetry, cite fiction, reference anecdotes, tell jokes, or remark on matters of general

knowledge or experience although not based on record.” J. Stein, Closing Arguments §

1:22 (2024-2025 ed.); see Goltz, 111 S.W.3d at 6 (“It is unprofessional conduct for a

prosecutor to intentionally refer to or argue facts outside the record unless the facts are

matters of common public knowledge.”) (emphasis added) (citing Standards Relating to

the Prosecution Function and the Defense Function §§ 5.8-5.9 Commentary (ABA

Project on Standards for Criminal Justice, Approved Draft 1971)). The reference to how

victims of acquaintance rape are sometimes treated in society was a matter of common

knowledge from which the jury may have permissibly drawn during its consideration of

this case. State v. Brown, 795 S.W.2d 689, 696 (Tenn. Crim. App. 1990); cf. State v.

McDougle, 681 S.W.2d 578, 584 (Tenn. Crim. App. 1984) (finding a reference to the

dehumanizing effects of rape and its effects on a victim’s self-esteem to be “generally

known by common experience and understanding”).

Additionally, the reference was highly relevant to the facts of the case. The victim

in this case alleged that she was raped by her then-boyfiriend, and the proof demonstrated

that she delayed in reporting her rape and that the Defendant, by his own testimony, later

spread unflattering sexual rumors about the victim following her rape. The State

introduced proof that the victim feared retribution if she spoke against the Defendant and

that the victim had suffered extensive mental and emotional hardships after her rape

necessitating years of extensive therapy. In this context, we view the State’s references

to victims of acquaintance rape being “often blamed, ridiculed, shamed, and looked down

upon” and reluctant to “relive [their] victimization” as highly relevant to the facts of this

case, rather than an attempt to introduce issues beyond the Defendant’s innocence or

guilt. In light of this relevance, we also disagree with the Defendant’s contention that

these references served to inflame the jury’s passions.

-18-

Regarding the prosecutor’s references to the iconography surrounding “Lady

Justice,” we note that the Defendant in this case placed both the victim’s credibility and

her character into question during his testimony. The Defendant vehemently denied the

victim’s allegations and testified that she had falsely accused him of raping her after she

learned that the Defendant had “made her out to be a meth whore” and that the Defendant

had been “cheating on her” with Ms. Barnett. In light of these relevant issues, it is not

clear that the prosecutor’s references to “Lady Justice” “wearing a blindfold and holding

a set of scales” were anything more than an attempt to convince the jurors to “set aside

any preconceived notions” they may have held about the victim’s particular situation and

to instead “reach a verdict based on the evidence presented before you.” See Villaneda v.

Santoro, No. 2:18-CV-10485 SHK, 2021 WL 4306672, at *18 (C.D. Cal. Sept. 21, 2021),

aff'd, No. 21-56160, 2023 WL 2158808 (9th Cir. Feb. 22, 2023) (finding the State’s

reference to “Lady Justice” during closing arguments was not improper and was intended

to inform the jury that “in weighing the evidence of [the] defendant’s guilt, at some point

the scales may tip so far as to constitute proof beyond a reasonable doubt.”);

Commonwealth v. Regustors, No. 3113 EDA 2012, 2013 WL 11250378, at *7-8 (Pa.

Super. Ct. Nov. 13, 2013) (finding that the statement, “Justice might be blind, but she is

not dumb,” was part of the State’s larger attempt to explain the applicable law to the

jury). Rather than imploring the jurors to convict the Defendant to “restore the balance,”

“send a message,” or to generally deter future offenders, the prosecutor’s statements

when viewed in context served to ask the jurors to make a decision based on the evidence

presented at trial.

2. Vouching for the Victim’s Testimony

The Defendant also contends that the prosecutor inappropriately vouched for the

victim’s testimony during rebuttal argument. Our appellate courts have consistently held

that it is improper for a prosecutor to express his or her personal belief or opinion as to

the truth or falsity of any testimony or evidence. See, e.g., State v. Sexton, 368 S.W.3d

371, 420 (Tenn. 2012); State v. Henley, 774 S8.W.2d 908, 911 (Tenn. 1989); Goltz, 111

S.W.3d at 6; Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978). The

rationale for this prohibition, colloquially known as “vouching,” is that

Expressions by the prosecutor are a form of unsworn, unchecked testimony

and tend to exploit the influence of the prosecutor’s office and undermine

the objective detachment which should separate a lawyer from the cause for

which he argues. The prohibition prevents the advocate from personally

endorsing or vouching for or giving his or her own opinion; the cause

should turn on the evidence, not on the standing of the advocate, and the

Witnesses must stand on their own.

Goltz, 111 S.W.3d at 6-7 (internal citation omitted). Further, prosecutors “should not

imply special or secret knowledge of the truth or of witness credibility.” ABA Criminal

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Justice Standards for the Prosecution Function, Standard 3-6.8(b) (4th ed. 2017); see also

Arnold v. State, No. M2018-00710-CCA-R3-PC, 2020 WL 569928, at *41 (Tenn. Crim.

App. Feb. 5, 2020); State _v. Agnew, No. W2016-00908-CCA-R3-CD, 2017 WL

1192117, at *9 (Tenn. Crim. App. Mar. 30, 2017).

Although expressions of personal belief or opinion are prohibited, legal argument

pertaining to the truth or falsity of evidence or testimony and the credibility of witnesses

is permissible if based upon evidence in the record. Sexton, 368 S.W.3d at 419-420;

State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976) (holding that a prosecutor may argue

against the credibility of a witness during closing arguments so long as he or she does not

“go outside of the evidence” or insert personal opinion or belief into the argument). The

determination as to whether a prosecutor’s statement has crossed the line into

impermissible vouching is necessarily contextual and is often dependent upon the

specific words used. State v. Willis, 496 S.W.3d 653, 754-55 (Tenn. 2016) (citing State

v. Gann, 251 S.W.3d 446, 460 (Tenn. Crim. App. 2007)). Though a prosecutor’s use of

predicates such as “I argue” or “I submit” before making a credibility argument may

indicate that the argument is not a personalized opinion or belief, State v. Spencer, No.

E2022-01276-CCA-R3-CD, 2024 WL 228412, at *22 (Tenn. Crim. App. Jan. 22, 2024),

whether a challenged statement crosses the line into impermissible vouching is

determined on a case-by-case basis. Compare Henley, 774 S.W.2d at 911 (improper

vouching in the statement, “I thought [the witness] made one of the best witnesses I’ve

ever seen’), State v. O’Rourke, No. M2017-00375-CCA-R3-CD, 2018 WL 4492744, at

*7-8 (Tenn. Crim. App. Sept. 19, 2018) (improper vouching in the statements, “I don’t

know that this witness has the ability to come in here and lie to you,” and “[the witness]

has become my hero”), and Goltz, $.W.3d 111 at 7 (improper vouching in the statement,

“TI know for a fact that [the witness] is honest”) with State v. Vaughn, No M2024-00028-

CCA-R3-CD., 2025 WL 520172, at *13 (Tenn. Crim. App. Feb. 18, 2025) (no vouching

in the prosecutor’s statement that several witnesses had “demonstrated heroism” because

the statement did not relate to the truth or falsity of the witnesses’ testimonies), Cooper v.

State, No E2022-01776-CCA-R3-PC, 2024 WL 4143828, at *43-44 (Tenn. Crim. App.

Sept. 11, 2024) (no improper vouching in the prosecutor’s repeated assertions that the

victim was telling the truth and “didn’t make [her allegations] up” because “the

prosecutor was recounting the precise details of these offenses as they were relayed by

the victim” and stressed that the jury was the “ultimate deciders of who’s telling the

truth”), and State v. Agnew, No. W2016-00908-CCA-R3-CD, 2017 WL 1192117, at *9

(Tenn. Crim. App. Mar. 30, 2017) (no vouching in the statement, “I submit to you that

[the witnesses] were telling you the truth about what they witnessed on that morning” and

“their testimony corroborates what [other witnesses] told you” in the context of the

State’s larger argument regarding credibility and corroboration based on proof that most

of the witnesses did not know each other).

In this case, the Defendant argues the prosecutor impermissibly vouched for the

victim’s testimony by stating, “[W]hat you heard on the stand from the victim was real

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and it’s evidence and it’s an accurate reflection of what occurred to her on July the 27th

and July the 28th.” We disagree. Throughout the Defendant’s brief, he maintains that

this case is a “‘he-said, she-said” case hinging on whether the jury accredited the victim’s

testimony. During his own closing argument, the Defendant presented this same claim

and noted that the central question was ““Who’s telling the truth?” The Defendant further

attacked the truth and credibility of the victim’s testimony during closing argument by

contending that the victim’s injuries were from unrelated events, that her trial testimony

did not match her pretrial statements, and that the jury should instead accredit the

Defendant’s testimony that no rape occurred. In response to this attack on the credibility

of the victim’s testimony, the State responded by asserting that the victim’s testimony

was “real,” “evidence,” and ‘“‘an accurate reflection of what occurred to her.”

When viewed in context, the prosecutor’s statements do not appear to be a

statement of her own belief in the victim’s credibility but rather an argument based on the

proof that the jury should accredit the victim’s testimony. Though the Defendant targets

the words “real,” “evidence,” and “accurate” as impermissible, we reiterate that the

determination of whether a prosecutor crosses the line into impermissible closing

argument is highly contextual. In this case, words “real” and “evidence” referred to the

fact that the victim’s testimony was sworn, as opposed to her unsworn statements and

interview. The challenged statements further came in the midst of the prosecution’s

larger response to the Defendant’s credibility arguments; the prosecutor also noted that

any inconsistencies in the victim’s pretrial statements and interview were likely due to

the shock she was facing following her rape and assault and illustrated differences

between the Defendant’s testimony and the victim’s. Therefore, the prosecutor’s

statements served as responses to the Defendant’s closing arguments challenging the

victim’s credibility. See Spencer, 2024 WL 228412, at *22 (“Despite the theme in the

rebuttal closing argument that the victim was credible and that the [d]efendant was not

credible, the prosecutor’s arguments were focused on explaining why the jury should

credit the victim’s testimony and discredit the [d]efendant’s statements.”). Moreover, the

prosecutor’s statements did not imply that she had some secret knowledge of the veracity

of the victim’s testimony or that other evidence not available to the jury supported her

argument. Lackey, 578 S.W.2d at 107 (finding impermissible vouching in the

prosecutor’s statement “I won’t tell you why I don’t believe [the witness]”).

Accordingly, we discern no impropriety in this aspect of the prosecutor’s closing

argument.

We also note that the trial court issued an instruction to the jury that “[s]tatements,

arguments, and remarks of counsel are intended to help you in understanding the

evidence and applying the law, but they are not evidence. If any statements were made

that you believe are not supported by the evidence, you should disregard them.” The trial

court later reminded the jury that it was the “exclusive judge of the credibility of the

witnesses and the weight to be given to their testimony.” Even assuming that the

prosecutor’s references to victims of acquaintance rape and “Lady Justice” or her

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statements regarding the victim’s testimony stepped over the thin line into impermissible

closing arguments, the jury is presumed to follow the trial court’s instructions. State v.

Young, 196 S.W.3d 85, 111 (Tenn. 2006); see also Jordan, 325 S.W.3d at 66 (finding no

prejudice in the prosecutor’s improper references to the “angel of death” in part due to

the trial court’s issuing of similar jury instructions).

More importantly, the question to be answered under plain error review in this

case is whether the prosecutor’s comments clearly crossed the line into impermissible

argument. Smith, 24 S.W.3d at 282. In this case, we cannot agree that they did so.

Because the Defendant has failed to establish a clear and unequivocal breach of the law,

we need not consider whether the remaining factors warrant plain error review. The

Defendant is not entitled to relief on this issue.

C. Fines

Finally, the Defendant argues that the trial court failed to make sufficient findings

to support its imposition of $60,000 in fines and failed to consider his indigency. The

State responds that the record supports the trial court’s imposition of the fines.

The jury is responsible for setting fines within the appropriate ranges prescribed

by the legislature when it convicts a defendant of an offense punishable by a fine in

excess of fifty dollars. Tenn. Const. art. VI, § 14; Tenn. Code Ann. § 40-35-301(b).

Following the defendant’s sentencing hearing, the trial court “shall impose a fine, if any,

not to exceed the fine fixed by the jury.” Tenn. Code Ann. § 40-35-301(b). The trial

court’s imposition of a fine must be based on its consideration of the defendant’s “prior

history, potential for rehabilitation, financial means, and mitigating and enhancing factors

that are relevant to an appropriate, overall sentence.” State v. Taylor, 70 S.W.3d 717,

723 (Tenn. 2002) (citing State v. Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App.

1997)). The trial court must also consider the factors provided by the statutory

sentencing act. Taylor, 70 S.W.3d at 723. Though the trial court must consider the

defendant’s ability to pay the fine imposed, that factor alone is not controlling. State v.

Butler, 108 S.W.3d 845, 854 (Tenn. 2003). As fines are affixed as part of a Defendant’s

sentence, we review any fines imposed by the trial court under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012).

In this case, the jury found the Defendant guilty of aggravated rape, a Class A

felony, and aggravated assault, a Class C felony, and imposed maximum fines of $50,000

and $10,000, respectively. See Tenn. Code Ann. §§ 39-13-502, -102, 40-35-111(b).

Following the Defendant’s sentencing hearing, the trial court noted that the jury imposed

these fines before informing the victim of when she could expect the Defendant to be

released from confinement. The trial court then provided the Defendant a summary of

his sentence, noting his substantial pretrial jail credits. The trial court then stated, “I will

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not disturb the fine that was imposed by the jury. They clearly imposed the maximum

fine possible for these crimes.”

Our review of the record indicates that the trial court made no findings to support

its imposition of maximum fines. Though, as the State notes, the trial court considered

the Defendant’s criminal record, his potential for rehabilitation, and the applicable

mitigating and enhancement factors, it did so in the context of determining the length of

the Defendant’s sentence and whether consecutive sentencing was warranted, not in

consideration of whether fines were warranted. See State v. Climer, No. W2024-00023-

CCA-R3-CD, 2024 WL 4948973, at *6 (Tenn. Crim. App. Dec. 3, 2024) (“While the trial

court made thorough findings supporting its decision to deny alternative sentencing, the

trial court simply announced the fine with[out] making any findings justifying the

same.”). Indeed, the trial court made detailed and specific findings which support the

other aspects of its sentencing decision but only referenced the issue of fines in passing.

In the absence of the requisite findings to support its imposition of fines, this aspect of

the trial court’s sentencing determination is not entitled to deference or a presumption of

reasonableness on appeal. State v. Pollard, 432 S.W.3d 851, 863-64 (Tenn. 2013); State

v. Jackson, No. W2021-00208-CCA-R3-CD, 2022 WL 370090, at *5 (Tenn. Crim. App.

Feb. 8, 2022). When the trial court fails to place on the record any reasoning to support

its sentencing decision, the most appropriate remedy is to remand the case to the trial

court for reconsideration. Bise, 380 S.W.3d at 705, n.41. Therefore, we reverse the trial

court’s sentencing decision only insofar as it relates to the imposition of fines. On

remand, the trial court shall conduct a new sentencing hearing to consider the relevant

factors, including the Defendant’s financial means, and make the necessary findings in

consideration of those factors.

III. Conclusion

Following our review, we reverse the trial court’s imposition of fines and remand

for a new sentencing hearing consistent with this opinion. The judgments of the trial

court are otherwise affirmed.

s/ W. MARK WARD

W. MARK WARD, SPECIAL JUDGE

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