State of Tennessee v. John David Cunningham

09/24/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 11, 2025 Session

STATE OF TENNESSEE v. JOHN DAVID CUNNINGHAM

Appeal from the Circuit Court for Rutherford County

No. 84128 Barry R. Tidwell, Judge

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No. M2024-00288-CCA-R3-CD

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A Rutherford County jury convicted the Defendant, John David Cunningham, as charged

of seven counts of rape of a child and six counts of aggravated sexual battery against his

minor daughter, and the trial court imposed an effective 100-year sentence. See Tenn.

Code Ann. §§ 39-13-522 (Supp. 2013), -504(a)(4). On appeal, the Defendant argues: (1)

the trial court erred in admitting the child’s forensic interview; (2) the evidence is

insufficient to sustain his convictions; (3) the trial court erred in admitting evidence of his

alleged prior bad acts; (4) the trial court abused its discretion in imposing partially

consecutive sentencing; (5) the trial court erred in ordering the Defendant to stop taking

depositions in the divorce case and to turn over existing deposition transcripts to the State;

and (6) the trial court abused its discretion in allowing the State to utilize an

unauthenticated excerpt of a transcript lacking the court reporter’s certification. After

review, we affirm the judgments of the trial court but remand the case for entry of corrected

judgment forms in Counts 1 through 13 to reflect the Defendant’s effective 100-year

sentence.

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

and Remanded for Entry of Corrected Judgments

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which TIMOTHY L.

EASTER, J., and JEFFREY USMAN, Sp. J., joined.

Patrick T. McNally, Nashville, Tennessee (on appeal); D. Brock East and Halle Mann,

Murfreesboro, Tennessee (at trial), for the appellant, John David Cunningham.

Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilbur, Senior Assistant

Attorney General; Jennings H. Jones, District Attorney General; and Hugh T. Ammerman

III and Allyson S. Abbott, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

In October 2020, the Rutherford County Grand Jury indicted the Defendant on seven

counts of rape of a child (counts 1 through 7) and six counts of aggravated sexual battery

(counts 8 through 13). The Defendant’s daughter, A.C.,1 was the victim in all charges.

Following the Defendant’s indictment, a bitter divorce proceeding arose between

the Defendant and Victoria Cunningham. Initially, the same attorney represented the

Defendant in both the criminal case and the divorce case. Although the Defendant initially

agreed to a stay in the divorce proceedings, he later obtained permission to proceed with

the divorce case. The Defendant then issued subpoenas to several of the State’s potential

witnesses in the criminal case, including Ms. Cunningham2 and A.C. In September 2022,

Ms. Cunningham was deposed by the Defendant’s attorney.

On November 2, 2022, the State filed a Motion to Compel Compliance with Rule

15, arguing that it needed copies of deposition transcripts that had already occurred, that

any future depositions of witnesses in this case should be governed by Rule 15, and that

the court should disallow any further depositions by the defense prior to the criminal trial.

The trial court subsequently entered an order holding that Rule 15 did not apply to these

circumstances and that this matter was an issue of pretrial scheduling. A limited scheduling

order was included, requiring that any deposition transcript subject to the State’s motion

not be used as substantive evidence in the criminal trial, that both parties provide opposing

counsel with full copies of any deposition transcripts intended to be used or that might be

used at trial for impeachment purposes, that defense counsel turn over copies of any

deposition transcripts of the State’s potential witnesses, even if they were not anticipated

to be used for impeachment purposes, and that no further depositions of any of the State’s

potential witnesses be taken without leave of the criminal court.

On November 9, 2022, the Defendant filed a motion seeking the admission of a

video recording of A.C.’s forensic interview that occurred at the Rutherford County

Advocacy Center (“CAC”) on November 7, 2019. He argued that this recording possessed

particularized guarantees of trustworthiness, as set out in Code section 24-7-123(b)(2), and

that he was prepared to make an offer of proof of same.

1

It is the policy of this court to refer to victims of sexual abuse by their initials only.

2

Because the Defendant and Victoria Cunningham share the same last name, we will often refer to

Victoria Cunningham as Ms. Cunningham. For the sake of efficiency, we will often refer to other witnesses

by their last name only.

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Trial. Jessica Bratcher, who lived diagonally from the Defendant, testified that over

the last nineteen years, she had gotten to know the Defendant; his wife, Victoria

Cunningham; and their two children. Bratcher stated that she and Ms. Cunningham became

friends and that their children sometimes played together.

On May 28, 2019, Bratcher was walking her mother out her front door when she

observed Ms. Cunninghan, who was “visibly distraught,” standing on her front porch. Ms.

Cunningham was dressed in pajama pants, a bra, and an unbuttoned cardigan that she

attempted to hold around herself. Bratcher said Ms. Cunningham was sobbing and saying

it was not going to be okay and collapsed into Bratcher’s mother’s arms. Bratcher noted

that Ms. Cunningham was “really anxious to get in the house” and wanted to get her

children into Bratcher’s house. Once they stepped inside, Bratcher had one of her own

children distract Ms. Cunningham’s children so she and Ms. Cunningham could talk in her

bedroom.

Ms. Cunningham cried and told Bratcher that the Defendant “had been molesting

[their daughter], [A.C.].” She explained that the Defendant had wanted to take a bath with

A.C., and when she refused to allow that, the Defendant became violent with her. She said

that the Defendant “pushed her, punched her[,] and tried to take her phone,” things which

were later confirmed by Ms. Cunningham’s two children. Ms. Cunningham also stated

that A.C., who was six years old at the time, confirmed that the Defendant had been

molesting her “for a long time” and provided specific details about the abuse. A.C. told

her that the Defendant “penetrated her with his fingers,” that he “made her perform oral

sex on him” on a “regular basis,” and that he took “baths with her and d[id] all manner of

things.” After this conversation, Bratcher made sure that Ms. Cunningham and her children

got a ride to Ms. Cunningham’s mother’s home. She confirmed that Ms. Cunningham and

her children never returned to their home after that day.

Bratcher continued to stay in contact with Ms. Cunningham because she was

worried about them and wanted to know if the Defendant had been arrested. She asked

Ms. Cunningham if she had reported the Defendant’s abuse of A.C. because she knew it

was important to report it as quickly as possible. Ms. Cunningham replied that she and her

mother had filed a police report.

On June 4, 2019, Bratcher said Ms. Cunninghan told her that the criminal case

against the Defendant had been dropped for “lack of evidence.” When Bratcher inquired

further, Ms. Cunningham told her not to worry about it because her mother was an attorney

and was handling things for her. Bratcher asked why the case had been dropped so quickly

without an investigation, and Ms. Cunningham became “defensive” and asserted that

although it was clear Bratcher did not believe her, she was telling the truth. Bratcher then

told Ms. Cunningham that if she did not convince her that she reported the Defendant’s

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crimes, Bratcher would report this abuse to the police. When Ms. Cunningham stopped

responding to Bratcher’s texts, Bratcher informed Ms. Cunningham that she was going to

file a police report about the Defendant’s abuse of A.C..

On June 6, 2019, Bratcher filed a police report about the Defendant’s abuse of A.C.

at the Smyrna Police Department. She notified Ms. Cunningham about the report, and Ms.

Cunningham “was very upset.” Bratcher accused Ms. Cunningham of lying about filing a

police report about the abuse. However, she told the officers that she had only ever known

Ms. Cunningham to be “a caring mother to her children.” Bratcher’s text thread with Ms.

Cunnigham from June 4, 2019, to June 7, 2019, was admitted as a collective exhibit to

Bratcher’s testimony, although the State never had Bratcher read these texts to the jury.

On cross-examination, Bratcher agreed that all the information about the sexual

abuse allegations that she testified about on direct examination had come from Ms.

Cunningham. She acknowledged that she never questioned A.C. about these allegations.

Bratcher stated that she reported the abuse allegations to the police on May 28, 2019,

because she believed that Ms. Cunningham was never going to file a police report about

A.C.’s abuse.

When questioned about her text messages, Bratcher said that she felt Ms.

Cunningham was lying to her about the closure of the criminal case against the Defendant

because this information did not line up with what she knew about police investigations.

When Ms. Cunningham texted her that she “was filing for” divorce and mentioned the

Defendant attending “therapy,” Bratcher told her that if the Defendant did not have

criminal charges filed against him, the court “would not let [her] keep his kids from him,”

and the Defendant would “continue to hurt them.” Bratcher asserted that it was clear to

her that Ms. Cunningham was “easily manipulated.” She said that although Ms.

Cunninghan claimed she had reported the sexual abuse allegations to the police, this was a

lie. She agreed that it would have been better for Ms. Cunningham to report the abuse

allegations, rather than her. However, Bratcher eventually informed Ms. Cunningham that

she was going to report the sexual abuse allegations to the police. Defense counsel and

Bratcher then had the following exchange:

Q. You go on to say some things, like this man is a manipulative

narcissist. He has worked to control your mind for many years. He’s

a cheat and a liar. He’s totally disregarded your heart for many years,

right?

A. Yes.

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Q. Now, that information was provided to you through [Ms.

Cunningham] over the years, is that right?

A. I suppose you could say that. I also saw things. So, yeah.

Q. Well, you saw things of him being a cheat and a liar?

A. Yes.

Q. How so?

A. My husband saw him in the car with another girl when he was

supposed to be on his way to work one day. I saw bruises on [Ms.

Cunningham] frequently when she would come to my house. I saw

many, many evidences [sic] of him being a cheat and a liar and just

an all around not good man to her.

Q. But the first time—and she did disclose certain things like that to you

over the years, yes?

A. Yes.

Q. That he was cheating on her or abusive or what have you, yes?

A. Yes.

Bratcher said that after she reported the sexual abuse allegations, she informed Ms.

Cunningham that she had gone to the police. Ms. Cunningham said, “I’m so upset with

you right now,” and Bratcher replied, “You lied” in “capital letters.” Ms. Cunningham

denied lying to her about reporting the abuse and told her to not message her again. When

asked if Ms. Cunningham realized that Bratcher was just trying to help her, Bratcher replied

that Ms. Cunningham was “easily manipulated” and believed that “her mom had things

under control.”

The victim, A.C., testified that she was currently ten years old and in the third grade.

She stated that she understood the difference between the truth and a lie and that she was

only going to tell the truth during her trial testimony. A.C. explained that when she lived

with her father, the Defendant, he did “inappropriate” things to her “mostly every day or

every night.” She acknowledged that she was “nervous” about testifying at trial and that it

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was “[h]ard] to talk about the inappropriate things the Defendant did to her.” When asked

if the inappropriate things the Defendant did to her involved touching, A.C. replied, “Yes.

Sometimes, yeah.” When the prosecutor asked her what kind of touching, A.C. said, “I

don’t really remember. But I know that [the Defendant] would sometimes touch me where

it was not okay. But I don’t remember.” The prosecutor asked her what parts of her body

are not okay to touch, and A.C. stated, “My privates [are] not okay.” A.C. said that when

the Defendant touched her inappropriately, he would sometimes use his “hand” and

“sometimes [his] privates.” When asked where the Defendant would touch her with his

hand, A.C. replied, “Mostly like the ribs like the ribs from my rib cage sometimes.” When

asked were there any times that the Defendant would touch her on her privates with his

hand, A.C. responded, “Not that I can remember, no.” When the prosecutor asked if there

were times when the Defendant touched her on the butt with his hand, A.C. stated, “No.”

The prosecutor then asked if the Defendant had ever touched her private with his

private, and A.C. replied, “No.” In addition, A.C. denied that the Defendant ever made her

touch him. A.C. said she did not know if anyone’s mouths were involved in the

Defendant’s inappropriate touching.

A.C. said one time the Defendant’s privates touched her legs after the Defendant

told her to have her legs “[c]rossed.” When asked if there were any times that the

Defendant’s private touched her private, A.C. said, “No.”

A.C. stated that she told her mother about the things that were going on with the

Defendant “only once.” Although her mother never saw anything happen, A.C. said that

her mother “knew something was up.” A.C. said her mother saw the Defendant and the

victim “under a blanket” in her parent’s bed, and “[s]he was really confused[.]” When her

mother would walk in, the Defendant had his clothes “sometimes on, sometimes off.” The

prosecutor asked what things happened under the blanket in her parents’ bedroom, and

A.C. replied, “I don’t really know. Like, I don’t know. Maybe—but I knew something

was happening that was not supposed to. But I don’t know what.” When asked if she

remembered something coming out of the Defendant’s private part, A.C. replied, “It’s like

white, yellowish, chunky like, thick stuff.” She said this stuff from the Defendant’s private

went “[m]ostly on [her] chest.” She said the Defendant would clean it off by “lick[ing] it

off or sometimes clean[ing] it with like a paper towel.” She did not state that this substance

went anywhere but her chest. When the prosecutor asked how the Defendant would be

when that “stuff” came out of his private, A.C. said the Defendant “would be comfortable”

and relaxed.

A.C. stated that she had talked to a woman at the CAC on two different occasions

about what happened with the Defendant and that these two interviews had been recorded.

She watched these two recorded interviews at the prosecutor’s office shortly before trial.

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A.C. noted that these two recordings occurred in different years because in one interview

she did not have glasses and in the other interview she did have glasses. A.C. said that in

the first interview she was asked if anything inappropriate happened with the Defendant,

and she said no. However, in the second interview, A.C. said that inappropriate things had

happened with the Defendant, and she provided details. When asked why her response

changed from the first interview to the second interview, A.C. replied that she was

“uncomfortable” talking about it in the first interview because she was so young. When

asked if she was still uncomfortable talking about the Defendant’s inappropriate behavior,

A.C. said, “Yeah, kind of.” She added that it was “hard to remember everything.”

A.C. said that during the second interview, she provided details about what the

Defendant had done, and she was as truthful as she could be “without being too

uncomfortable.” She stated that the women interviewing her “kept asking . . . so many

questions about all of this stuff.”

When the prosecutor asked whether she had told the truth during the second

interview when she said that the Defendant’s private went into her private, A.C. replied, “I

don’t know. Because in the video I also did tell some things that weren’t true.” When the

prosecutor asked, “Like what?,” A.C. responded, “I don’t know. Like a lot of things.

Mostly a lot.” The prosecutor then asked, “Anything about the stuff that had happened

with your dad that wasn’t true?” A.C. replied, “No, not that I remember.”

The prosecutor asked what had been going on right before the white, chunky stuff

came out and got on her chest, and A.C. said, “I don’t know. I know it wasn’t something

good.” She could not recall a time when the Defendant’s penis touched her face.

A.C. acknowledged that she had talked to “[l]ots of people, many times” about the

Defendant’s inappropriate behavior. She said the first person in public she talked to about

the Defendant’s inappropriate behavior was the woman who interviewed her twice. After

that, she talked to Dr. Janie Berryman. A.C. said that when she talked to these women, she

“tr[ied] to be as truthful as [she] could without being too uncomfortable.” She explained

that she would get uncomfortable when people asked too many questions.

A.C. acknowledged that it took her a while before she was able to tell people she

did not know about what the Defendant had done. She said that if she talked to someone

one time, and then it was a long time before talking to them again, she “might still be

uncomfortable.” However, she stated that if she talked to someone once a week, then she

probably would not feel uncomfortable talking to them.

The victim stated that no one had told her to tell lies about inappropriate things. She

said neither her mother nor her grandmother had ever told her to make up stories about the

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Defendant. When asked what her mother and grandmother told her about answering these

hard questions, A.C. said, “They just tell me that I can be truthful and that I can tell them

if I’m scared or nervous or something just to like help me so that I’m not so scared or

nervous.” She acknowledged that she was a little scared and nervous while testifying at

trial.

A.C. acknowledged that she did not tell the truth during her first forensic interview

when she claimed nothing inappropriate happened with the Defendant. However, she said

that when she disclosed that something inappropriate happened with the Defendant, this

was the truth. A.C. did not recall having a physical examination and did not understand

what the prosecutor meant when she asked her about a “physical exam.”

A.C. identified the “privates” on a male anatomical drawing at trial. When asked if

the Defendant’s privates ever touched her body anywhere, A.C. replied, “Not that I can

remember.” She did not recall talking about the Defendant making her cross her legs or

about the Defendant getting on top of her with her legs crossed. She stated that she did

remember one time when the Defendant “licked [her] privates.” However, she quickly

corrected herself and stated that the Defendant licked her privates “three or four times.”

A.C. said she was doing the best she could to be honest about what the Defendant did, but

she admitted she was “really nervous” about having to talk about it in front of so many

people.

The prosecutor then asked her, “If you were able to give more details about what

kind of physical contact happened to the woman at the CAC with the drawings and Dr.

Janie [Berryman], we should go with that?” A.C. replied, “Yes.” When the prosecutor

asked if A.C. had been truthful when she talked to those two women, A.C. replied, “Yes.”

On cross-examination, A.C. acknowledged that she met with the prosecutor three

times prior to trial. She said she watched the recordings of her forensic interviews four

times and watched these recordings the day prior to her testimony at trial.

A.C. said she first told her mother about the Defendant’s inappropriate behavior

when they were in the kitchen at the home they shared with the Defendant. Her mother

asked if the Defendant was being inappropriate with her, and A.C. cried because she did

not want to answer her mother’s questions. A.C. said she eventually told her mother what

the Defendant had done to her, but she could not currently remember what she had

disclosed. Although A.C. said she thought she was five years old when she initially told

her mother that the Defendant was being inappropriate, she said she continued living with

the Defendant until she was six years old. A.C. said her mother and grandmother told her

that they were trying to keep her safe so that the Defendant did not take her and her brother

away.

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A.C. acknowledged watching YouTube and Netflix when she first moved in with

her grandmother. She said she now watched YouTube on her cell phone. A.C. said she

used to play with her cousin, Elena, who also lived with her grandmother, but Elena did

not like to play with her now because Elena was “too mature.”

When defense counsel asked if she admitted that she did not tell the same story on

the second interview as the first interview, A.C. replied, “In one [of the interviews], I told

a lot of lies that were not true.” When defense counsel asked if the lies were about whether

the Defendant had been inappropriate, A.C. replied, “Yes.” She clarified that she told a lot

of lies in the first interview because she was “feeling uncomfortable.” However, when

defense counsel asked her what were the lies she told in the first interview, A.C. said she

could not remember. A.C. admitted that she also told “a few” lies in the second interview

but could not remember what they were. A.C. acknowledged that “some” of the lies dealt

with the Defendant’s inappropriate behavior, but she could not remember which ones.

When defense counsel asked if she remembered saying in the first forensic interview

that she no longer lived with the Defendant because he was mean, A.C. said she did not.

Defense counsel then asked, “You said things like he was mean because he was beating

[your mother] up, is that right?” A.C. replied, “Yes.” When asked if her claim that the

Defendant was beating up her mother was the truth, A.C. responded that it was the truth.

On redirect examination, A.C. identified the recordings of her forensic interviews

as well as her initials on the disk for these interviews. She stated that she looked at the

recordings of her forensic interviews the prior day and put her initials on them. When

asked what was on these recordings, A.C. replied, “It’s the interview that I did with this

woman. They also gave me these drawings.” The prosecutor then introduced the

recordings of the two forensic interviews for identification purposes only without an

objection from the defense.

The prosecutor asked A.C. to clarify what she lied about in the forensic interviews.

A.C. recalled the interviewer asking her if there were parts of her body that were not okay

to be touched, and the victim said there were not, which was “a lie.” The interviewer also

asked her whether the Defendant touched her in those places. A.C. said she could not

remember her answer but admitted that if she replied that the Defendant did not touch her

on those parts of her body, that would have been a lie.

A.C. acknowledged that during her second forensic interview, she talked about the

inappropriate places on her body the Defendant had touched, and she provided truthful

information. She said that her uncle Anton and her mother’s former boyfriend Matt had

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never touched her inappropriately. However, she reiterated that her father, the Defendant,

had touched her inappropriately.

James Scott, a detective for the Smyrna Police Department, testified that on June 6,

2019, Bratcher, the Cunninghams’ neighbor, filed a police report that Victoria Cunningham

told her that her daughter A.C. had been sexually abused by the Defendant. Detective Scott

called and left a voicemail at the phone number Bratcher had provided for Ms.

Cunningham. Ms. Bratcher also provided the police with information that Ms.

Cunningham’s mother was Connie Reguli. Detective James called Reguli, who confirmed

that A.C., A.C.’s brother, and Ms. Cunningham were staying with her and that the kids

were safe. He also called and left Ms. Cunningham a second voicemail, identifying himself

and stating that he needed to facilitate a forensic interview with A.C.

Detective Scott then made a “DCS referral.” He talked to DCS Investigator

Tameika Gray, who informed him that Ms. Cunningham instructed her to talk to her

mother, Reguli, who was the attorney who would be representing her. Investigator Gray

also shared that a civil motion had been filed to prevent a forensic interview of A.C.

Detective Scott then called and left a message for Reguli at her law office and left a

message for Ms. Cunningham.

Detective Scott explained that when a child abuse allegation is made, he sets up a

forensic interview for the victim at the CAC. He stated that the forensic interview is

conducted to determine the veracity of the allegation of abuse. He noted that he would not

conduct the forensic interview unless a minor victim made a disclosure of sexual abuse

directly to him.

Detective Scott stated that he was never able to talk to Ms. Cunningham during his

investigation. He said Bratcher came to the police department and provided screen shots

of a text thread between her and Ms. Cunningham regarding this case. He asserted that

Ms. Cunningham’s number on this text thread was the same number he had used to call

Ms. Cunningham. He later learned that there was a Juvenile Court process initiated to

facilitate the forensic interview with A.C.

Detective Scott stated that on June 25, 2019, he entered a case summary noting that

there had not been a forensic interview with A.C. and changing the offense from child rape

to a DCS referral. He acknowledged that at that time he did not have any proof that A.C.

had been raped. He asserted that the case was not closed but was pending the results of a

forensic interview or the outcome of the civil litigation.

On cross-examination, Detective Scott stated that he was responsible for

categorizing the case as a child rape, rather than a sexual battery or something else, because

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that was what Bratcher had reported to him. Bratcher told him, based on the information

she obtained from Ms. Cunningham, that the Defendant had engaged in oral sex with A.C.

and had forced A.C. to engage in oral sex with the Defendant. He confirmed that despite

his efforts, he never got a response from Ms. Cunningham about these allegations, which

was unusual. He agreed that he did not get any cooperation from Ms. Cunningham or

Reguli during his investigation.

Detective Scott stated that he was aware that DCS had filed an action to compel Ms.

Cunningham to present A.C. for a forensic interview. He was also aware that Ms.

Cunningham and Reguli sued DCS to prevent A.C.’s forensic interview from taking place,

which he had never seen before. Detective Scott said he never got an explanation from

Ms. Cunningham or Reguli about why they refused to cooperate with his investigation.

Tameika Gray, the DCS Child Protective Services Investigator in this case, testified

that on June 6, 2019, she received a referral regarding A.C. She talked to Ms. Cunningham

on June 10, 2019, informing her that she needed to schedule a time to meet with A.C. to

discuss the allegations of child abuse. Ms. Cunningham replied that she needed to talk to

Reguli, Ms. Cunningham’s mother and her attorney and that she would not discuss

anything with her at that time. Later that day, Reguli called Investigator Gray and stated

that she would bring in A.C. the next day, June 11, 2019.

On June 11, Reguli brought A.C. and her brother to the office. Investigator Gray

brought everyone to the visitation room, and she told Reguli that she needed to talk to A.C.

privately to learn the basic information about the alleged sexual abuse and whether there

were any witnesses to this sexual abuse. She explained that she preferred to speak privately

with children because children often feel more comfortable disclosing abuse without the

parents or guardian being present. Reguli refused to give permission for Investigator Gray

to talk to A.C. privately, stating that she had promised A.C. she would be with her at each

step of the process. When Investigator Gray told Reguli that she could watch the interview

from the observation room, Reguli declined that offer and informed Investigator Gray that

she would not be interviewing A.C. that day.

When Reguli asked what the next steps would be, Investigator Gray said that she

would make a referral for A.C. to have a forensic interview at the CAC. Reguli then said

that she did not trust the staff at the CAC because she claimed they were not well trained

and that they interrogated children. She then informed Investigator Gray that she was

taking A.C. to see Dr. Berryman. She asserted that if Dr. Berryman believed A.C. needed

a forensic interview, then they would go to the CAC. Investigator Gray then took a

photograph of A.C., and Reguli began audio recording the rest of the visit. Investigator

Gray then told Reguli that they were going to stop for the day and that she would contact

Ms. Cunningham for the next appointment.

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Investigator Gray noted that on June 12, 2019, DCS attorney Matthew Wright told

her that the juvenile court had issued an order requiring Ms. Cunningham to take A.C. to

the CAC for a forensic interview before A.C. met with Dr. Berryman. Investigator Gray

and her co-worker Chelsea Wade went to the Reguli home to deliver this court order and

to conduct a home visit. When Reguli read the order, she claimed Judge Davenport was

not allowed to hear any of her cases. When Investigator Gray replied that the order was

directed to Ms. Cunningham and not her, Reguli asked where the “rest of it” was. When

Investigator Gray replied that she had provided all the documents she had, Reguli waved

her hand in a dismissive way and told them to leave her home.

Prior to delivering the court order to the Reguli residence on June 12, 2019,

Investigator Gray talked to Ms. Cunningham about the scheduled forensic interview for

A.C. on June 13, 2019, at the CAC. Although Investigator Gray and the forensic

interviewer were present at the CAC office on June 13, 2019, A.C. never appeared.

Investigator Gray said that on June 14, 2019, Reguli filed on behalf of Ms.

Cunningham and A.C. a federal lawsuit against her, Judge Davenport, and DCS attorney

Matthew Wright. She acknowledged that from the initial meeting on June 11, 2019, to the

day she was served with this lawsuit, she was never able to get any information from A.C.

Investigator Gray stated that because of the lawsuit Reguli filed against her, she had no

further involvement with this case.

On cross-examination, Investigator Gray said that when she asked Ms. Cunningham

if she could meet with A.C., Ms. Cunningham refused and stated that Investigator Gray

needed to talk to Reguli, her attorney, first. Investigator Gray noted that Ms. Cunningham

was not present at the meeting on June 11, 2019. She said it did not make sense that Ms.

Cunningham, through her attorney, refused to allow her to meet with A.C. on that date.

Investigator Gray observed that although the CAC conducted forensic interviews all the

time, Reguli refused to allow the CAC to do A.C.’s forensic interview prior to the court

order. She also said that after Reguli demanded that she and her co-worker Chelsea Wade

leave her home on June 12, 2019, Reguli called her six times in row and then four times

after that, but she declined to answer those calls because the DCS attorney had instructed

her not to speak with Reguli. Investigator Gray affirmed that A.C.’s scheduled forensic

interview on June 13, 2019, could have taken place had A.C. appeared and that she never

received an explanation as to why A.C. did not appear for her interview.

Investigator Gray confirmed that in the federal lawsuit filed by Reguli, she was sued

for one million dollars. She had never been sued during her time at DCS, and the lawsuit

interfered with her ability to do her job by removing her from the DCS investigation into

A.C.’s case. Investigator Gray stated that this federal lawsuit was dismissed, and when

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Reguli appealed the case to the Sixth Circuit, that court affirmed the district court’s

dismissal.

Sheneka Morgan, the Rutherford County lead investigator for Child Protective

Services, testified that she took over this case when Investigator Gray was named in the

federal lawsuit. Investigator Morgan attempted to find A.C. She checked with the

Rutherford County School Board on July 17, 2019, but there was no record of A.C. being

enrolled there. On July 25, 2019, she visited the Cunningham’s address on file in Smyrna,

but no one was at home.

On October 17, 2019, Investigator Morgan went to the CAC for A.C.’s forensic

interview, but A.C. never arrived. She later received a text message from Reguli, stating

that A.C. would need to come at a different time because she was on a school field trip.

On October 29, 2019, Investigator Morgan requested an order requiring Reguli and

Ms. Cunningham to present A.C. for a forensic interview and requiring a home visit on

November 7, 2019.

On November 7, 2019, Investigator Morgan said A.C. appeared and participated in

a forensic interview, although A.C. did not disclose any sexual abuse by the Defendant.

Approximately thirty minutes after the hour-long forensic interview, Investigator Morgan

went to Reguli’s home to conduct a home visit. When she arrived, there were no cars in

the driveway, and no one answered the door. Investigator Morgan took a photograph of

Reguli’s residence to prove she had been there and then texted the DCS attorney to inform

him that no one was home. She spent ten minutes at Reguli’s home.

After Investigator Morgan left the Reguli residence on November 7, 2019, Reguli

texted her, stating that she was at home but needed to get to her office. Reguli claimed

Investigator Morgan was supposed to be at her home immediately after A.C.’s forensic

interview, and Investigator Morgan asserted that she had done that. She then told Reguli

that she needed to call the DCS attorney to talk about rescheduling the home visit.

Investigator Morgan was then instructed to stop communicating with Reguli.

On November 15, 2019, Investigator Morgan said that the Defendant called to ask

about the status of this case and to ask about a custodial hearing. During this conversation,

the Defendant stated that he knew the victim had gone to a forensic interview on November

7, 2019, and he believed the case would be dismissed. The Defendant claimed the child

abuse allegations were the result of Ms. Cunningham wanting to get a divorce on her terms

and wanting to withhold the children from him. The Defendant claimed that someone had

called DCS because he put Ms. Cunningham out of the home on May 28, 2019. He asserted

that it was Ms. Cunningham’s worst fear to have someone call DCS, and it was his worst

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fear for sexual abuse allegations to be made against him. During this conversation, the

Defendant discussed an incident involving a bath with A.C. He said he had left the home

to purchase bath bombs because Ms. Cunningham and A.C. enjoyed them. When he

returned, A.C. asked if he was going to take a bath with her, which caused Ms. Cunningham

to get upset. Investigator Morgan noted that during this conversation, the Defendant

focused on Ms. Cunningham, her behavior, and her parenting style. He claimed Ms.

Cunningham would not allow him to take the children to church. He also claimed he knew

famous people, but Ms. Cunningham did not want him “expos[ing] the children to that

lifestyle.” She said that the Defendant never expressed any concern that someone else

might be abusing A.C. Investigator Morgan confirmed that she never spoke to Ms.

Cunningham during her investigation, only Reguli.

On November 20, 2019, Investigator Morgan presented A.C.’s case to the Child

Protective Investigative Team (CPIT), which was comprised of members of law

enforcement, medical professionals, CAC, DCS, Our Kids Center, court staff, and the

district attorney’s office. She said A.C.’s case was classified as “allegations

unsubstantiated, perpetrator unsubstantiated,” which meant that there was not sufficient

evidence to prove the allegations happened or to show that the perpetrator committed these

allegations. She agreed that DCS closed the case because of insufficient evidence.

On cross-examination, Investigator Morgan said that although the initial focus of

the investigation was on the Defendant, DCS had gotten little to no cooperation from Ms.

Cunningham or Reguli.

On July 30, 2019, Investigator Morgan appeared at a hearing to discuss Ms.

Cunningham’s and Reguli’s cooperation with DCS so it could have access to A.C. The

court entered an order requiring A.C.’s custodian to present A.C. for a forensic interview.

Investigator Morgan admitted it was unusual to have to obtain a court order to talk to the

mother or the child where there were allegations the child was sexually abused by the

father.

Investigator Morgan stated that she then had to obtain a second court order for the

forensic interview that took place November 7, 2019. On that date, Reguli brought A.C.

to the forensic interview, and A.C. was cooperative but did not disclose any sexual abuse.

Thereafter, Investigator Morgan went to Reguli’s home for a home visit, but no one was

there, and Reguli blamed her for not appearing after the forensic interview and accused her

of being in contempt of the court order, even though she did go to the home immediately

after the interview. Investigator Morgan agreed that there was nothing preventing A.C.

from telling Reguli what she said during the forensic interview.

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Investigator Morgan stated that during the Defendant’s call on November 15, 2019,

the Defendant denied the sexual abuse allegations and asserted that the allegations were an

attempt by Ms. Cunningham to get a divorce on her terms and to withhold the children

from him. During this conversation, the Defendant told her that he asked Ms. Cunningham

to leave the home on May 28, 2019, because she had been drinking excessively while

taking Excedrin and Benadryl and was taking hard drugs, which he said she obtained from

her maternal grandmother, Reguli’s mother. He claimed Ms. Cunningham had not worked

in seven years and that he had enabled her to stay home, get drunk, and do drugs. He also

claimed that Ms. Cunningham was asking him for large amounts of money and did not

want him to have any visitation with the children. The Defendant denied ever bathing with

the children.

Investigator Morgan said that at the time of the November 15, 2019 conversation,

the Defendant had not seen his children in four months, although the Defendant said he

and A.C. had communicated over a video game. The Defendant also told Investigator

Morgan that Ms. Cunningham, his wife, said that there was no evidence, that this would

all go away, and instructed him not to let DCS into the house or to even talk to DCS. He

stated that he believed the sexual abuse allegations came about because his wife was trying

to inflict his worst fear on him; however, he also stated that his wife was paranoid about

DCS. The Defendant disclosed that there had been some domestic issues that resulted in

Ms. Cunningham’s arrest, which required him to bail her out and pay for her fines, although

Investigator Morgan never confirmed this information. Investigator Morgan stated despite

her efforts, she was never able to talk with Ms. Cunningham.

Investigator Morgan acknowledged that A.C.’s case was classified by the CPIT as

“allegations unsubstantiated, perpetrator unsubstantiated” and was effectively closed

because A.C. had said that nothing happened, the Defendant had said that nothing

happened, and there was no other circumstantial or medical proof of abuse at that point.

On redirect examination, Investigator Morgan acknowledged that perpetrators

overwhelmingly deny allegations of sexual abuse and often blame others, just like the

Defendant did in blaming Ms. Cunningham.

Lisa Milam, a social worker at Our Kids Center at Nashville General Hospital,

testified that her job was to collect “a presenting history” of facts and circumstances of the

alleged concern from the parent or custodian. She also prepared the child for examination

and collected the child’s medical history.

Milam said that on February 19, 2020, A.C. was scheduled for a forensic

examination with her facility at 8:30 a.m. Prior to this interview, Ms. Milam talked to the

Executive Director and the hospital’s legal team, informing them of her history with

- 15 -

Reguli, that Reguli had issued subpoenas for Milam several times on behalf of her legal

clients, and that Reguli had filed a lawsuit against her, a nurse practitioner, and several

dozen other people. Milam informed Ms. Cunningham of her history with Reguli and

offered to make a referral to a different provider, but Ms. Cunningham agreed to have the

forensic examination done at Our Kids Center.

Milam noted that although A.C.’s appointment was at 8:30 a.m., Ms. Cunningham

and A.C. arrived at Our Kids Center at 9:15 a.m. She said Ms. Cunningham seemed

“upset” and “kept saying that she wanted to leave.” She told Milam that she did not want

to share any information and just wanted Milam to take A.C. for the forensic examination,

so they could leave.

Milam told Ms. Cunningham that she needed to speak to A.C. privately to get her

medical history because a parent’s presence often limited the information shared by the

child, and Ms. Cunningham refused to give permission for Milam to speak privately with

A.C. When Milam offered to collect as much information as she could from Ms.

Cunningham, to conduct exam preparation with A.C., and then proceed with the exam, Ms.

Cunningham appeared to agree to this. However, Milam left the room to get the nurse

practitioner, and when she returned, Ms. Cunningham had left the examination room and

had gone to the lobby to speak on the phone. Ms. Cunningham then informed her that she

had consulted with her attorney and had decided not to proceed with A.C.’s appointment.

Milam then told Ms. Cunningham that she could reschedule A.C.’s appointment with Our

Kids Center or could get referral information for other providers.

On cross-examination, Milam said Our Kids Center’s primary concern was to

conduct a medical examination, to document anything observed, to conduct lab testing, and

to ensure that the child received proper medical care. She confirmed that Reguli filed the

lawsuit against her six or seven years prior and that she believed this lawsuit had been

dismissed. Milam said she had never been sued before or since then.

Milam stated that before Ms. Cunningham stopped A.C.’s appointment, Ms.

Cunningham disclosed that they were there because the Defendant had touched A.C. She

also said that she and the Defendant were in the middle of a divorce and that she wanted

A.C.’s examination to be completed so she could leave. Milam acknowledged that Ms.

Cunningham’s decision to cancel A.C.’s appointment presented issues because generally

the sooner the examination occurs, the better.

Jill Howlett, a social worker at the Our Kids Center in Nashville, testified that she

participated in an appointment with A.C. at the center on October 5, 2020. At the time,

A.C. was seven years old and “seemed like a typically developing” seven year old, who

was able to answer questions and communicate clearly. She stated that Ms. Cunningham

- 16 -

brought A.C. to the appointment and was cooperative. Howlett said A.C. provided her

with her medical history.

During this appointment, A.C. disclosed that the Defendant had touched her “lady

parts,” referring to her genital area, with “his parts,” referring to the Defendant’s genital

area. When Howlett asked whether the Defendant’s part stayed inside or outside her lady

parts, A.C. said she did not know. Howlett asked A.C. whether the penile/genital contact

occurred one time or more than one time, and A.C. stated that it happened more than one

time. When Howlett asked if anything else had happened, A.C. replied that the Defendant

“licked” her lady parts, and that this occurred more than one time. When Howlett asked if

the Defendant touched her lady parts with anything else, A.C. said, “[N]o.”

Howlett then asked A.C. if she had been required to touch the Defendant’s body in

any way, and A.C. replied, “[H]e made me. I didn’t want to.” A.C. specified that the

Defendant made her touch his penis with her hand and that this occurred “a lot of times.”

When Howlett asked if anything else had happened, A.C. said that sometimes the

Defendant made her put her mouth on his penis. She also said the Defendant sometimes

put her feet on his penis.

When Howlett asked if A.C. ever saw anything come from the Defendant’s body

following sexual contact, A.C. responded that “weird stuff came out.” She described this

substance as white, but she did not know what it was. She said the Defendant “lick[ed] it

up. When she asked if anything else happened with the Defendant, A.C. stated that she did

not think so. A.C. reported that she had never experienced any type of sexual contact with

someone other than the Defendant.

Howlett said A.C. did not seem to be under duress or coercion during the

appointment. She noted that A.C. was “willingly able to join [her] and was able to talk

without any issues.” She said that the remainder of A.C.’s appointment was “[u]neventful.”

On cross-examination, Howlett acknowledged that at the October 5, 2020

appointment, Ms. Cunningham and A.C. were accompanied by Reguli. However, Howlett

stated that she only spoke with Ms. Cunningham and A.C. and did not speak to Reguli.

Howlett stated that she knew of Reguli but had not been sued by her.

Lori Littrell, a nurse practitioner at Our Kids Center, was accepted as an expert in

pediatric forensic evaluations. She stated that the “hymen myth” was that if an object

entered the hymen, there would be an injury but that in reality, “something c[ould] go inside

[the hymen] and not cause any injury.” She said that even if there is an injury to the hymen

membrane, it can “heal completely and very quickly.” Nurse Practitioner Littrell asserted

- 17 -

that many children do not disclose sexual abuse immediately, and because they are

evaluated later, it is common to see no visible injury to a child during a physical

examination. She also noted that a child could disclose that penetration occurred, but the

object could have not gone all the way through the hymen into the vagina.

Nurse Practitioner Littrell examined A.C. on October 5, 2020. Based on the

information provided by Ms. Cunningham, Nurse Practitioner Littrell knew the last

possible sexual contact between A.C. and the Defendant was during a supervised visit two

to three days earlier. She said she did not make any findings after A.C.’s physical exam

because the exam showed that A.C. was healthy and had no injuries. She was aware that

A.C. provided in her medical history to Howlett that the Defendant had touched her lady

parts, that the Defendant’s “parts touched [her] lady parts,” that the Defendant put his

tongue inside her lady parts, and that the Defendant made her touch his “part” with her

hand or her mouth. Nurse Practitioner Littrell stated that A.C.’s physical examination was

consistent with the medical history A.C. had given Howlett.

Nurse Practitioner Littrell received some medical history regarding A.C. from Ms.

Cunningham, who stated that A.C. had not been exposed to sexually explicit materials.

She explained that nurses ask this question because there are mental health repercussions

for children who have been exposed to sexual images.

On cross-examination, Nurse Practitioner Littrell acknowledged that while many

children will have no physical findings following penetration, approximately seven percent

will have physical findings showing injury to their genital area. However, she added, “The

lack of injury does not mean [sexual abuse] did not happen.” She noted that A.C.’s hymen

did not have any notches or tears. She also noted that the area inside A.C.’s vagina and

anus did not show any bruising, tears, or bleeding. She asserted in her report that the lack

of injuries in “no way rule[d] out the possibility of child sexual abuse.” She noted that

ninety-three percent of exams showed no signs of injury. Nurse Practitioner Littrell stated

that A.C. tested negative for sexually transmitted diseases.

Nurse Practitioner Littrell agreed that there were no physical findings of sexual

abuse of A.C. However, she stated that based on her examination, she could not say

whether sexual abuse “occurred or did not occur.”

Elizabeth Benton, a forensic interviewer at the CAC, testified that she conducted

the forensic interviews of A.C. on November 7, 2019, and February 10, 2020. She asserted

that A.C. did not appear to be under coercion during either of these forensic interviews.

The videos of the forensic interviews were introduced without objection from the defense,

were played for the jury, and were admitted into evidence.

- 18 -

At the November 7, 2019 forensic interview, A.C. said she was six years old and

that her grandmother Gabby had brought her to the interview. She said that she no longer

lived with her dad because “he was mean to mommy” by beating up on her. She said her

mommy would “cry” and she “would hide.” She also said she did not feel safe at the house

because her father was mean to her brother. A.C. stated that one time her dad wanted to

go to Disneyland with just her. A.C. said she felt like something bad would happen to her

at the old house, and she would have bad dreams. She said that she and Mommy and her

brother “ran away” from the old house. When asked if she had places on her body that

were not okay to touch, A.C. did not respond. She said that something happened “a long

time ago” when she was living with her dad. When she was asked what happened, A.C.

did not respond. When she was shown anatomical drawings of a girl, A.C. identified the

vaginal area as “private” and the buttocks as “butt.” On the anatomical drawings of the

boy, A.C. identified the groin as “private” and the buttocks as “butt.” When asked if she

ever got touches that were not okay, A.C. said, “No.” A.C. said it was not okay to get

touched on the “private” of the girl and boy. When asked if anyone had ever touched her

on her “private,” she shook her head “no.” When asked if anyone had ever made her touch

the “private” part on a boy, she shook her head “no.” A.C. said that if she needed to talk

to someone about anything, she could talk to Dr. Janie Berryman, her mother, and her

grandmother “Gabby.”

At the February 10, 2020 forensic interview, A.C. stated that she was seven years

old and that on the way to the interview, she had talked to her mother about her dad “being

inappropriate” and doing “bad stuff that he’s not supposed to do.” She then stated that her

dad had been “putting his privates in mine.” She said her father put his privates in her legs

and in her privates. A.C. said, “Sometimes he pushes hard, and I don’t really like it.” She

then said I “push him a little bit” with “sometimes my feet” and “sometimes my hands.”

A.C. said that sometimes her father told her to “cross my legs” and he would put “his

privates through [her] legs.” She said this happened “more than one time” and “almost a

million times.” A.C. said that the first time this happened, she wanted to ask him how it

happened but she was “too scared.” She said her father first did this when she “was a

baby.” She remembered one time her father “took a shower” with her “when she was a

baby,” but now her father cannot do that “because it’s inappropriate.” She said the last

time her father put his privates into her privates was “at an old house” but she did not know

who owned the house. When she was asked where the inappropriate things happened, she

stated, “I don’t really remember when it happened, and I’m really telling the truth.” A.C.

stated that she was currently in kindergarten, that her dad’s behavior happened during

kindergarten, and that she “didn’t really tell anyone” because she “thought he would be

really mad.” She said her dad kicked her mom out of the house, and her mom took her and

her brother away because her father was “being inappropriate.” She said her mother

“would always catch us” and her dad did not like it so he would “hide under the blanket.”

She said this occurred at their “old house” in her mom and dad’s room. She said her mom

- 19 -

did not see anything but she knew “inappropriate” things happened because A.C. and her

father were under the blanket together. Specifically, she said her father would “lick her

privates” by putting his “tongue on it.” She said this happened more than one time and that

her father “did a lot of things more than one time.” She also said her father tried to make

her put her tongue on his privates but she did not do it because she was watching a movie.

When Elizabeth Benton asked her what she called those body parts that her dad

“pushes hard” on, A.C. said “he only uses his privates” and then Benton asked her what

she called those private parts, and A.C. said “winky.” When Benton asked her what body

part a “winky” was, A.C. was unsure, and Benton showed her the anatomical drawings of

a girl and a boy from her first forensic interview. When she asked her what was a “winky,”

A.C. pointed to the boy’s penis on the anatomical drawing. Benton said that A.C. had

previously stated that her dad “pushes hard sometimes” and then pointed to two body parts,

and she asked A.C. to identify these areas on the anatomical drawing. A.C. then pointed

to the girl’s vaginal area and buttocks on the anatomical drawings. Benton asked what her

dad does when he “pushes hard,” and A.C. pointed to the boy’s penis and said her dad puts

his penis in her vaginal area and buttocks and then pointed to these areas on the anatomical

drawings of the girl” Benton asked how it felt when her dad puts his “winky” in her

buttocks, and A.C. said, “It hurts.” Benton then asked what it felt like when her dad put

his “winky” in her vaginal area, and A.C. said, “It also hurts.” When Benton asked where

exactly her dad put his “winky” when he puts it in her vaginal area, A.C. replied that her

dad put it “where girls go potty . . . like go pee pee.”

When asked if she had ever seen anything come out of her dad’s “winky,” A.C. said

that it was “this really gross stuff I don’t really like” that was “kind of like whitish yellow.”

She said one time her dad “licked” this substance off her “chest” even though she didn’t

think it was “really good or something to drink.” She also said her father told her to “cross”

her “legs,” as she pointed to the upper legs on the girl’s anatomical drawing, and then she

said he “pushes” with his penis, as she pointed to the penis on the boy’s anatomical

drawing. A.C. stated that when this happens, she still did “not like it.” Benton asked how

many times he put his “winky” here, pointing to the buttocks on the girl’s anatomical

drawing, and A.C. said her father put his winky in her butt “like forty-six times.” When

Benton asked if there was one her dad did more than the other, A.C. pointed to the penis

and vaginal areas on the anatomical drawings and said that her father put his privates in

her vagina “the most” and this happens when her legs are “crossed and not crossed” and

that her legs were “mostly” crossed when the “yucky white/yellow stuff comes out.” She

said that the “yucky white/yellow” stuff only got on her “chest one time,” and the rest of

the time it got on the bed.

She said her dad “trie[d] to be funny” and “hit” her in the “face” with his “privates,”

and pointed to the penis on the anatomical drawing. Benton asked her to show on the

- 20 -

drawings where her dad’s “winky” goes when her legs are crossed, and A.C., pointing to

the girl’s vaginal area on the anatomical drawing, said her dad’s winky would go “almost

where [she] goes pee pee” and that when her legs were not crossed, her dad’s winky would

go in “the hole” where she “goes tinkle.” A.C. said that she did not talk about these things

the last time she met with Benton because Benton “did not ask [her] about this.”

A.C. told “Dr. Janie” about her dad being inappropriate because her “mom wanted”

her “to tell because if [she] didn’t tell anyone, it would just keep going, and it would never

stop.” She said her mom knew about what her dad was doing because “she would always

see.” She said the “first time” her mom talked to her about it, her mom told her to “never

lie” and that “what [her mom] meant” was that if her dad “was inappropriate,” A.C. “should

tell the truth” A.C. said her mother then asked if her dad was “being inappropriate,” and

A.C. “said yes.” She said her mom asked her this at their “old house.”

A.C. asserted that her dad was “inappropriate” because he “likes it” and that he

“does it at night” when she sleeps with him “at their old house.” When she told her mom

about her dad continuing to be inappropriate, her mom got “mad” and her mom would

“tell[] her mom.” She said that if her dad was inappropriate when she visited him, she

would tell her mom about it “in the car” when her mom picked her up. She said her dad

was not inappropriate to her brother because he “is a boy.” A.C. noted that during her

visitations with her dad, she would sleep in her “mom and dad’s bedroom,” but her brother

would sleep in their “old room.” A.C. said that if something else happened, she would tell

Dr. Janie Berryman, Elizabeth Benton, her mom, or her grandmother “Gabby.”

Benton noted that after A.C.’s first forensic interview took place, the CPIT

determined that A.C.’s case was “unsubstantiated.” However, she said a new case

involving A.C. was opened after A.C.’s second forensic interview, which was

substantiated.

On cross-examination, Benton asserted that it was important to conduct a forensic

interview as soon as DCS or law enforcement learned that abuse has occurred because a

child’s memory is better close in time to when the abuse occurred. She also noted that it

is important to conduct a forensic interview as soon as possible to prevent outside

influences from shaping or changing a child’s statements.

On redirect examination, Benton stated that no disclosure from a child does not

necessarily mean that no abuse occurred. She agreed that she has had other cases in which

a child does not immediately disclose abuse and then later discloses that abuse occurred.

Her experience was that children disclose sexual abuse when they are ready to disclose it

and not before.

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Dr. Janie Berryman testified that she had a doctorate in Counseling and Psychology

and had been working for the last thirty years as a psychologist, assessing people for ADHD

and mental health issues and counseling children who had been abused. She stated that she

had worked at the Comprehensive Child Abuse Program at Luton Mental Health, now

known as Centerstone, and had worked at Our Kids Center counseling kids from the time

they came into the clinic until they got a regular therapist. Dr. Berryman had initially

gotten to know Reguli through the court system and had known her for many years. She

said they had worked on cases together and had also been on opposing sides in legal cases.

She categorized her relationship with Reguli as “[p]rofessionally friendly.”

Dr. Berryman first saw A.C. as a client because A.C.’s parents were getting a

divorce. She acknowledged that there were “some red flags, earlier on, about some

possibly inappropriate behavior, but that kind of was not the focus at the time.” Initially,

her goal was to get A.C. to talk about her feelings and provide her with some tools to

navigate her parents’ divorce. Dr. Berryman acknowledged that she was A.C.’s therapist,

which is more child focused with the child guiding the process, and that she did not serve

as a forensic interviewer, which would have required her to ask questions to determine

whether abuse happened.

Dr. Berryman said that in June 2019, Reguli contacted her and asked her to conduct

a forensic interview on A.C. Dr. Berryman knew that DCS would have to conduct the

forensic interview, so she informed her of that. Dr. Berryman only began to see A.C. after

A.C. scheduled her initial forensic interview. Dr. Berryman said that it was common for

parents to delay taking their child for a forensic interview because the parents were in

denial that their child had been sexually abused.

Dr. Berryman met with A.C. twenty-one times from October 8, 2019, through

November 3, 2020. She knew, from the very beginning of taking A.C. on as a client, that

a DCS referral had been made. During an October 16, 2019 session, Dr. Berryman asked

A.C. why she thought she was staying with her grandmother, and A.C. replied, “[B]ecause

my dad keeps beating my momma and we’ve ran [sic] away.” A.C. said that the Defendant

had kicked her mother on several occasions, which “scared” her. However, she said the

Defendant never hit her. A.C. stated that the Defendant “does what he wants” and that

“[h]e wanted to take me to Disney, only take me” but “Mom want[ed] us to go as a family.”

A.C. explained that the reason they left the home was because her father “wasn’t doing

something right.” When Dr. Berryman asked what her father was doing, A.C. responded,

“It’s not really for kids.” A.C. then got quiet. A.C. and Dr. Berryman agreed to talk more

on another day.

During a session on October 29, 2019, Dr. Berryman asked what A.C. thought about

talking to her father, and A.C. said that the Defendant “lie[d] all the time” and that the

- 22 -

Defendant did not want to get in trouble. When Dr. Berryman asked why the Defendant

was in trouble, A.C. responded, “He was inappropriate with me.” Dr. Berryman asked

what was inappropriate about what the Defendant was doing, and A.C. replied, “It’s hard

to talk about.” She noted that A.C. was “very avoidant,” so Dr. Berryman started asking

questions about A.C.’s brother.

During a November 20, 2019 session, Dr. Berryman asked A.C. how she felt about

the Defendant, and A.C. replied, “I don’t know.” She then asked whether A.C. had any

secrets, and A.C. stated, “I’m still not ready to talk about it.”

During a session on December 3, 2019, A.C. stated she and her brother had been

visiting with just the Defendant. Dr. Berryman noted that A.C. was not very talkative and

was “somewhat avoidant” during that session.

Dr. Berryman stated that she had a December 10, 2019 session with the Defendant.

During that session, the Defendant stated that Ms. Cunningham was afraid of DCS and

would not let anyone from DCS come to their home. He also claimed that Ms. Cunningham

had “called him out” on Instagram, telling people he was “sleeping with” A.C. He noted

that on May 28, 2019, Ms. Cunningham left his home with the kids. The Defendant also

stated that on that day, “they had bath bombs,” and A.C. asked him to take a bath with her,

but he did not. He said Ms. Cunningham later “blew up” at him because she believed that

he wanted to take a bath with A.C. Dr. Berryman recommended that the Defendant not

sleep in a bed with A.C., “given the allegations because it was risky,” but the Defendant

replied, “I’m not gonna [sic] give in to their allegations.” The Defendant seemed most

focused on his conflict with Ms. Cunningham.

During a December 18, 2019 session with the Defendant, the Defendant told Dr.

Berryman he was in a “better mood.” He claimed his son wanted to live with him, and

A.C. wanted the family back together. The Defendant also shared that at some point Ms.

Cunningham had been arrested, and she stopped drinking for a time but resumed drinking

on a trip to the beach.

At a December 23, 2019 session immediately prior to Dr. Berryman’s session with

A.C., Ms. Cunningham said the Defendant had slept in the bed just with A.C. during the

previous two visits. However, Ms. Cunningham also stated that the kids seemed to have

fun during the visitations. Dr. Berryman noted that A.C. was “avoidant” that day and did

not talk at all.

At a session on January 23, 2020, A.C. told Dr. Berryman that she was embarrassed

because her parents fought in front of her dance group. She said her father “mostly starts

it.”

- 23 -

During a session with A.C. on February 4, 2020, A.C. provided information that

resulted in Dr. Berryman making a referral to DCS. Dr. Berryman said that at first, Ms.

Cunningham disclosed that the Defendant had been given his first unsupervised overnight

visit with A.C. Dr. Berryman asked A.C. if anything “not so good” had happened, and

A.C. said everything was good. When Dr. Berryman asked what was good, A.C. stated

that “something had happened.” When Dr. Berryman asked if the Defendant had been

inappropriate with her, A.C. responded that she was not ready to talk about it. When Dr.

Berryman encouraged her to open up about what happened, A.C. stated, “He was doing,

that was bad, he put his private in me.” Dr. Berryman asked if the Defendant had told her

to tell or not tell people about his behavior, and A.C. said the Defendant told her, “Don’t

tell.” Dr. Berryman stopped the session to call DCS about A.C.’s disclosure. She

acknowledged that the Defendant’s unsupervised overnight visitation with A.C. occurred

a few days before she saw A.C. on February 4, 2020. She said neither Ms. Cunningham

nor Reguli had contacted DCS to make a referral from the time that A.C. got picked up

from this supervised visitation to A.C.’s February 4, 2020 appointment with her.

Dr. Berryman was not surprised that Ms. Cunningham and Reguli had not contacted

DCS. She claimed that neither Ms. Cunningham nor Reguli trusted DCS workers to do

their jobs properly and that Reguli had often stated her distrust of DCS over the years.

At a February 13, 2020 session, A.C. told Dr. Berryman that she was scheduled to

go to Our Kids Center the following week. Dr. Berryman asked if A.C. was ready to

discuss the Defendant’s inappropriate behavior, and A.C. said she was. She asked how old

A.C. was the first time the Defendant was inappropriate, and A.C. replied, “Five, six, then

seven.” When Dr. Berryman asked whether this inappropriate behavior happened more

than 5 times or more than 10 times, A.C. responded, “More than 10. It was 20 thousand

times.” Based on her experience with children, Dr. Berryman knew that A.C.’s statement

that it happened “20 thousand times” meant that the Defendant’s inappropriate behavior

happened “[a] lot.” Dr. Berryman stated that if a child said something happened a million

times, the child was not intentionally trying to mislead; instead, the child was trying to

explain that something happened numerous times. During this session, A.C. also stated

that she told the truth in the forensic interview and was worried that her father would be

mad at her for telling.

At the February 20, 2020 session, A.C. was in a good mood. A.C. stated that she

felt better after she disclosed “what happened with [her father].”

Dr. Berryman said that there was a five-month gap in her sessions with A.C. At a

session on August 6, 2020, A.C. told her that the Defendant was not going to discuss the

inappropriate “stuff” and that it was hard for the Defendant to be honest. Dr. Berryman

- 24 -

said that by that session, the visitations with the Defendant had stopped, and a restraining

order had been put in place. A.C. said that she did not miss the Defendant and that the

Defendant would beat up on her mother. A.C. described one incident when she got out of

bed and saw the Defendant hit her mother and push her against the wall hard. A.C.

observed holes in the wall, and the Defendant blamed it on her mother. A.C. stated that

the Defendant only cared about her and not her brother. She also said the Defendant was

only nice to her and spanked her brother hard, although he never spanked her.

At the session on August 18, 2020, A.C. told Dr. Berryman she hated the Defendant

because he did “terrible stuff.” A.C. said, “When he’s inappropriate, he hurts me, but I

don’t tell him.”

At the session on September 3, 2020, A.C. told Dr. Berryman that she believed the

Defendant was “born in hell.” When Dr. Berryman asked if A.C. had heard an adult say

that about her father, A.C. said she said that because the Defendant was mean to everyone

in the family except for her. A.C. stated that the Defendant bought her and her brother toys

so they would love him and not their mother. Dr. Berryman said that once A.C. had

disclosed the Defendant’s inappropriate behavior, A.C. focused on the Defendant’s

domestic violence.

Dr. Berryman said she reviewed a video recording pretrial where A.C. and her

brother excitedly ran toward the Defendant at the beginning of a supervised visit. When

asked if this video would in any way discredit A.C.’s disclosure of sexual abuse, Dr.

Berryman replied, “No. . . . Parents are parents. Kids love them because they are their

parents.” She also said that “at this point, there’s a lot of eyes on what’s going on,” and

“everybody’s on their best behavior.”

On cross-examination, Dr. Berryman said Reguli first reached out to her in in June

2019, which was after a neighbor reported the Defendant’s abuse of A.C. At the time,

Reguli wanted Dr. Berryman to conduct A.C.’s forensic interview, but she declined. Dr.

Berryman was aware, as of the time of trial, that Reguli’s law license had been suspended

and that Reguli had been either charged with or convicted of a felony. She acknowledged

that Reguli helped Ms. Cunningham pay $150 per hour for each therapy session.

At the intake meeting for A.C. on October 8, 2019, she was aware that a forensic

interview of A.C. had been scheduled and later discovered that it did not take place. She

did not recall whether Reguli or Ms. Cunningham told her why they cancelled the forensic

interview. Dr. Berryman contacted DCS to inform them that she was working with A.C.

She also knew that Reguli sued Tameika Gray. Dr. Berryman said that she had never been

sued by Reguli, although she was aware that Reguli had sued other individuals. Dr.

- 25 -

Berryman said that Reguli thought of her as “one of the few mental health people she

trust[s].”

Dr. Berryman said that from the very beginning, Ms. Cunningham and Reguli

informed her about the sexual abuse allegations against the Defendant. She said they

believed the Defendant had sexually abused A.C. because they saw A.C. as a “truthful kid.”

She did not recall asking Ms. Cunningham or Reguli whether they had taken A.C. to the

doctor following her disclosure of sexual abuse.

Dr. Berryman said it was “not uncommon at all” for a parent to wait four and a half

months to meet with a therapist, to conduct a forensic interview, or to take the child to Our

Kids Center because “[a] lot of people are in denial.” However, she acknowledged that

Reguli contacted her in June 2019 to do a forensic interview on A.C. She stated her belief

that it was okay for a parent to wait for a medical exam, “unless the child is complaining

of pain or [having] medical complications.”

Dr. Berryman said she was aware that A.C. had not made a disclosure during the

first forensic interview on November 7, 2019. She said it was not unusual for a child to go

“in with a stranger they’ve never met, for a 30-45[-]minute interview” and not disclose

abuse.

She admitted that the Defendant agreed to meet with her, even though he did not

have to do that. She also acknowledged that Ms. Cunningham was granted a restraining

order to keep the Defendant away from A.C. However, she said she was not aware of Ms.

Cunnigham’s decision two days later to dissolve that restraining order.

During her session with the Defendant on December 10, 2019, Dr. Berryman did

not ask him specific questions; instead, she asked him to tell her what was going on and

the history. The Defendant claimed that his wife would drink during the day with the kids

there, that his wife was raped at age twelve, that his wife was arrested in February 2016,

and that Ms. Cunningham’s grandmother believed Ms. Cunningham was taking her

medication from her leg amputation. Dr. Berryman said she did not check if any of this

information about Ms. Cunningham was true because she was not evaluating the parents

and was working as A.C.’s therapist. When asked if she wanted to talk to Ms. Cunningham

about these issues, Dr. Berryman said that Ms. Cunningham was “very uncomfortable with

the whole therapy process,” and she “did not push her on things.” In addition, she claimed

that A.C. never talked about her mother drinking, etc., and that if she had, she would have

followed up on these issues mentioned by the Defendant. Dr. Berryman said that when the

Defendant had sessions with her, he was having visitation with his children.

- 26 -

Dr. Berryman said that the first time A.C. mentioned any sexual abuse to her was

during a session on February 4, 2020. Dr. Berryman stated that at intake, in a separate

room, Ms. Cunnigham told her that the Defendant had posted some “sexualized”

photographs of A.C. on Facebook after his visitation with the kids and that Ms.

Cunningham could tell something was not right because of A.C.’s demeanor in the photos.

Ms. Cunningham noted that her son said he had slept alone, but the Defendant slept with

A.C. Ms. Cunnigham said she asked A.C. if the Defendant was good, and A.C. replied that

the Defendant had been “inappropriate” and had “touched [her] private” area through her

clothes while he touched his own private while naked. Ms. Cunningham told Dr. Berryman

that A.C. did not want to elaborate further, but A.C. later told Reguli that the Defendant

“made her cross her legs and put his penis between them.” Dr. Berryman said that she did

not instruct Ms. Cunningham to call the police; instead, she allowed Ms. Cunningham to

tell her what was going on, and then she met with A.C. to figure out what to do next. Dr.

Berryman did not ask Ms. Cunningham if she had called DCS or taken A.C. to a medical

provider. Dr. Berryman acknowledged that when Ms. Cunningham had gone through this

same process nine months prior, she had failed to take A.C. to a medical provider.

During this February 4, 2020 session, Dr. Berryman then met with A.C., who told

her that the Defendant “was inappropriate.” A.C. then said, “He was doing something . . .

that was bad. He put his privates in mine.” A.C. also said the Defendant told her not to

tell anyone. Dr. Berryman acknowledged that Ms. Cunningham had said something

different about the Defendant’s abuse of A.C. Dr. Berryman said that A.C. may have told

her more than she told her mother about what happened. She said it was up to the forensic

interviewer to determine what happened, and she passed it on to DCS to handle A.C.’s

forensic interview and told Ms. Cunningham to follow DCS’s recommendations. Dr.

Berryman said she wrote a September 3, 2020 letter to the court recommending that it

suspend the Defendant’s visitation, which the court did. In this letter, she specifically

asserted that the Defendant’s children were “expressing anger,” did not want to see their

father; she stated that it was her belief that “[c]ontact at this time, even supervised[,] is not

in their best interest.”

Dr. Berryman acknowledged that after seeing A.C. on February 20, 2020, over five

months went by before seeing A.C. again. Her explanation for this five-month gap was

that when visitations with the Defendant stopped, A.C. was fine because “everything bad

had been stopped.”

Dr. Berryman said that, a few days after she sent the September 3, 2020 letter, she

testified at a hearing before Judge Scarlett in the juvenile court case, where A.C., personnel

from the CAC, Elizabeth Benton, and Ms. Cunningham also testified. Following this

hearing, the court granted the Defendant supervised visitation with his children. Dr.

Berryman was “horrified” with this decision because A.C. had disclosed her deepest secret,

- 27 -

and the court said “okay, you’re gonna [sic] see your perpetrator now.” She knew that at

the time of the hearing, Ms. Cunningham had not taken A.C. to Our Kids Center for a

physical examination, even though Ms. Cunningham made sure that A.C. received several

therapy sessions. She stated, “I don’t know that there w[ere] any medical concerns at that

time to rush the child to the doctor.”

Dr. Berryman stated that once the Defendant was indicted in November 2020, the

Defendant’s contact with his kids stopped. At that point, A.C.’s therapy also stopped. She

noted that ultimately the parent decides whether therapy continues.

A video of A.C. and her brother greeting the Defendant after not seeing the

Defendant for eight months was shown to the jury. Dr. Berryman acknowledged that this

recorded visitation took place just a few days after she sent her September 3, 2020 letter to

the court, stating that the children did not want to see their father and that she believed that

“[c]ontact at this time, even supervised[, was] not in their best interest.” She agreed that

the Defendant was indicted within a month of the date that this visitation took place.

On redirect examination, Dr. Berryman confirmed that she was present for the

testimony that A.C. gave in chambers to Judge Scarlett in the juvenile court. She stated

that she had just reviewed the transcript from A.C.’s testimony in chambers with Judge

Scarlett. Dr. Berryman stated that she was present for and witnessed A.C.’s testimony,

explaining that she was “in the outside room, but . . . could hear everything being said.”

When she was asked if there was anything about the transcript that appeared inaccurate,

Dr. Berryman replied, “It looks accurate.”

Dr. Berryman stated that during this in-chambers hearing before Judge Scarlett,

A.C. testified that the Defendant “would lick her down there.” During cross-examination,

A.C. “was consistent in saying something inappropriate happened.” When A.C. was asked

if anyone had told her what to say, A.C. replied that no one had told her what to say. She

stated that A.C. was “consistent” during the in-chambers hearing that her father had been

inappropriate with her.

On recross-examination, Dr. Berryman agreed that the Defendant also testified in

the hearing before Judge Scarlett. She acknowledged that despite her own testimony and

A.C.’s testimony at the in-chambers hearing, Judge Scarlett still granted supervised

visitation to the Defendant.

The Defendant did not present any proof on his behalf.

At the conclusion of trial, the jury convicted the Defendant as charged of seven

counts of rape of a child and six counts of aggravated sexual battery. Following a

- 28 -

sentencing hearing, the trial court sentenced the Defendant to thirty years for each

conviction in Counts 1 through 7. See id. §40-35-112(b)(1). It also imposed a sentence of

ten years for each conviction in Counts 8 through 13. See id. §40-35-112(a)(2). The trial

court then ordered Counts 1 and 2 served concurrently, Counts 3 and 4 served concurrently,

and Counts 5 and 6 served concurrently before ordering Counts 1 and 2, Counts 3 and 4,

and Counts 5 and 6 served consecutively to one another. The court also ordered Counts 8

through 13 served concurrently with one another but consecutively to the sentences in the

rape of a child counts and ordered Count 7 served concurrently with Counts 1 through 6

and Counts 8 through 13, for an effective sentence of 100 years.

Thereafter, the Defendant timely filed a motion for new trial. He later filed an

amended motion for new trial, alleging that the evidence was insufficient to sustain his

convictions, that the trial court erred in preventing him from taking further depositions

without leave of that court, that the trial court erred in failing to compel the State to provide

complete and full transcripts of A.C.’s purported testimony that occurred in chambers

before Judge Scarlett in the divorce case, that the trial court erred in not compelling the

State to provide the identity of the court reporter who transcribed this A.C.’s purported

testimony, that the transcript excerpt of A.C.’s purported testimony was not properly

authenticated because it did not disclose the identity of the court reporter, that the trial court

erred in permitting the videos of the forensic interviews to be played in full for the jury,

that the trial court erred in permitting introduction of the Defendant’s prior bad acts, that

the trial court erred in applying enhancement factors 7 and 15, that the trial court erred in

failing to give the proper weight to mitigating factors during sentencing, and that the trial

court erred in sentencing the Defendant to consecutive sentences. The Defendant filed a

premature, but timely, notice of appeal. See Tenn. R. App. P. 4(d). The trial court then

entered an order denying the motion for new trial.

ANALYSIS

I. Forensic Interview. The Defendant argues the trial court erred in admitting the

video recording of A.C.’s second forensic interview pursuant to Code section 24-7-123.

He claims the second forensic interview lacks trustworthiness because A.C. never testified,

under oath, that the offered interview recording was a true and correct recording of the

events contained therein as required by Code section 24-7-123(b)(1). In addition, he asserts

that A.C. admitted several times at trial that she lied during her forensic interviews and that

she specifically lied about things involving the Defendant during her second forensic

interview. Although the Defendant concedes that he waived plenary review of this issue

by failing to make a contemporary objection, he nevertheless contends that the trial court

committed plain error in admitting the second forensic interview.

- 29 -

In response, the State contends that the Defendant waived review of this issue by

failing to make a contemporaneous objection and by failing to raise this issue in his motion

for new trial, and that the Defendant failed to establish that admission of the second forensic

interview was plain error. We agree with the State.

Prior to trial, the State filed a motion for admission of A.C.’s second forensic

interview, which was conducted on February 10, 2020. Thereafter, the Defendant filed a

motion for admission of A.C.’s first forensic interview, which was conducted on November

7, 2019.

At the pretrial hearing on these motions, the prosecutor asserted that this first

forensic interview did not fall under Code section 24-7-123 because the victim did not

make a disclosure of sexual abuse during the first interview. Nevertheless, he said he

intended to introduce the videotapes of A.C.’s first and second forensic interviews “one

after another” so the evidence could fairly be presented to the jury. He also said he would

introduce the first interview “under the same methods” that he introduced the second

interview. When the court asked defense counsel if he had any objection to the admission

of both interviews, defense counsel responded, “I will agree with the State, that if the

second interview is going to come in, [it] certainly makes sense both in timing and context

to have the first one come in as well.” Defense counsel confirmed that he had no objection

to the State’s laying the foundation for the first interview pursuant to Code section 24-7-

123. Defense counsel also stated that the parties had “stipulated” that the recording of the

first forensic interview “need[ed] to come in.”

At this pre-trial motion hearing, the State called Elizabeth Benton, the forensic

interviewer, to testify. Benton testified that she was a forensic interviewer at the CAC in

Rutherford County, which was compliant with the criteria in Code section 9-4-213. She

confirmed that she conducted forensic interviews with A.C. on November 7, 2019, and

February 10, 2020, that were recorded, and the recordings of the forensic interviews were

entered into evidence at the hearing.

On cross-examination, Benton stated that during the November 7, 2019 interview,

A.C. did not make a disclosure, but at the February 10, 2020 interview, A.C. did make a

disclosure of sexual abuse. She said she was not aware of divorce proceedings between

A.C.’s mother and the Defendant and did not “have any opinion as to whether there was

[bias or coercion used to influence]” A.C. by her family, who brought A.C. to the

interviews. However, Benton stated that she did try to clarify whether there had been any

coercion by asking A.C. if anyone had talked to her about coming to the interview. She

stated that her job was not to investigate but to “talk with the child,” which meant that she

did not do an independent investigation regarding the circumstances of the parents’

divorce, the custody arrangements, or the animosity between the parents.

- 30 -

On redirect examination, Benton confirmed that A.C. was able to provide specific

details regarding the sexual abuse during the second forensic interview.

At the end of this hearing, the trial court held that Elizabeth Benton met the

qualifications of Code section 24-7-123(b)(3) and that the court was “reasonably satisfied

that the video recording[s] possesse[d] particularized guarantee[s] of . . . trustworthiness,

specifically based [on] cross-examination questions.” It noted that the cross-examination

focused on Code sections 24-7-123(b)(2)(B) and (I), and the court determined that these

two subsections had been met. The court did not find that A.C. had any motive to have

“falsified or distorted [the] event[s].” The trial court also noted that Benton did not have

any information about the relationship of A.C. to the Defendant. Ultimately, the court

found that the recordings of both the first and second forensic interviews had guarantees of

trustworthiness.

At a hearing immediately prior to trial, the prosecutor reiterated his belief that the

first forensic interview did not fit with Code section 24-7-123 “because there was no sex

abuse disclosed.” However, he said the first forensic interview could be considered by the

jury “as a prior inconsistent statement for [the] purposes of evaluating [A.C.’s] credibility.”

The prosecutor noted prior inconsistent statements are “used for impeachment purposes”

but are not admitted as substantive proof and are not entered as an exhibit. He added that

he fully anticipated that the State would “play that first forensic interview in its entirety”

and the jurors would “have a copy of a transcript in their hands” while the State played the

“first forensic interview in its entirety[,]” but he questioned whether the first forensic

interview should be admitted as an exhibit.

Defense counsel countered that the State had agreed last week that both the first and

second forensic interviews would be played for the jury and admitted as evidence and that

the State was now backing away from its agreement. The trial court reminded counsel that

it made “all evidentiary rulings” and that if the State moved the first forensic interview in

for identification only, then the defense could object, and the court would hear arguments

concerning its admission. When the prosecutor explained that he was not arguing that the

first forensic interview would not be played for the jury, the trial court stated that the State

could move the first interview in for identification purposes and then it would “identify a

time either early in the morning or late in the evening” to determine whether the recording

of the first forensic interview would be admitted as substantive evidence.

At trial, A.C. testified that she had talked to a woman at the CAC on two different

occasions about what happened with the Defendant and that these two interviews had been

recorded. She asserted that she watched these two recorded interviews at the prosecutor’s

office shortly before trial. A.C. specifically noted that these two recordings occurred in

- 31 -

different years because in one interview she did not have glasses and in the other interview

she did have glasses. During A.C.’s direct examination, the following exchange occurred:

Q. Okay. Now when you talked to her on that second interview, and if

you had said that [the Defendant’s] private went into your private in

that interview, were you trying to tell her the truth or was that made

up?

A. I don’t know. Because in the video I also did tell some things that

weren’t true.

Q. Like what?

A. I don’t know. Like a lot of things. Mostly a lot.

On cross-examination, A.C. acknowledged that she watched the recordings of her

forensic interviews four times and that she watched these recordings the day prior to her

trial testimony. When questioned about the two forensic interviews, A.C. testified:

Q. And would you agree with me that you . . . don’t tell the same story on the

second interview, is that right?

A. Yes. In one of them, I told a lot of lies that were not true.

Q. Tell me about that. Tell me about what were the lot of lies that were not true?

A. I don’t remember all of them. But I do know that most of them were not true.

Q. Okay. Is it when you were talking about being inappropriate?

A. Yes.

Q. So, it was the second interview. Because the first interview you didn’t say

anything was happening, correct?

A. Yes.

- 32 -

Q. And, so, on the second one where you are talking about what happened, did

you tell any lies in that one?

A. Yeah, a few.

Q. Okay. But do you remember what they were?

A. No.

Q. Did they have to do with the inappropriate stuff?

A. Some of them, yes.

Q. But, again, you can’t remember which ones?

A. Yes, I can’t remember.

On redirect examination, A.C. identified the video recordings from her first and

second forensic interviews. She stated that she looked at the recordings of her forensic

interviews the prior day and put her initials on them. When the prosecutor asked her what

was on these recordings, A.C. replied, “It’s the interview that I did with this woman. They

also gave me these drawings.” The State then asked that the first and second forensic

interviews be entered for identification purposes, and the trial court noted that “[w]ithout

objection” from the defense, the recordings of the forensic interviews would be entered as

Identification Exhibit No. 2.

Later, during Elizabeth Benton’s direct examination at trial, the State played the

recordings of A.C.’s first and second forensic interviews for the jury. The State then asked

for the first and second forensic interviews to be admitted into evidence, and the trial court

stated, “Without objection, it will be Collective Exhibit 2.”

In his amended motion for new trial, the Defendant alleged that the trial court “erred

in permitting forensic videos to be played in full for the jury.” At the hearing on this

motion, defense counsel repeated this argument and acknowledged that although he did

not object to these forensic videos, it “still ma[de] sense” for the Defendant to raise it in

his motion for new trial. The trial court, recognizing that the Defendant had failed to make

a contemporaneous objection to the introduction of both forensic interviews, held that it

would “stand by” its decision for the forensic interviews to be played in full by the State at

trial.

- 33 -

At the outset, the Defendant concedes that he is limited to plain error review. See

Tenn. R. App. P 36(a) (“Nothing in this rule shall be construed as requiring relief be granted

to a party responsible for an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error.”); see also Tenn. R. Evid.

103(a)(1) (requiring a timely objection as a prerequisite to a finding of error based on the

trial court’s admission of evidence). For this court to find plain error,

“(a) the record must clearly establish what occurred in the trial court; (b) a

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

right of the accused must have 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)).

Plain error “must be of such a great magnitude that it probably changed the outcome

of the trial.” Adkisson, 899 S.W.2d at 642 (citations and internal quotations marks

omitted). It is the defendant’s burden to persuade an appellate court that the trial court

committed plain error. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). “[T]he

presence of all five factors must be established by the record before this Court will

recognize the existence of plain error, and complete consideration of all the factors is not

necessary when it is clear from the record that at least one of the factors cannot be

established.” Smith, 24 S.W.3d at 283. A recognition of plain error “should be limited to

errors that had an unfair prejudicial impact which undermined the fundamental fairness of

the trial.” Adkisson, 899 S.W.2d at 642. Plain error relief should be “sparingly

exercised[,]” see State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), and is only

appropriate for errors that are “especially egregious in nature, striking at the very heart of

the fairness of the judicial proceeding.” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

“‘[R]arely will plain error review extend to an evidentiary issue[.]’” State v. Haymer, 671

S.W.3d 568, 579 (Tenn. Crim. App. 2023) (quoting State v. Scoville, No. M2006-01684-

CCA-R3-CD, 2007 WL 2600540, at *2 (Tenn. Crim. App. Sept. 11, 2007)).

Tennessee Code Annotated section 24-7-123 allows for the admissibility as

substantive evidence of a video recording of a forensic interview of a child under the age

of thirteen where the child describes any act of sexual contact performed with or on the

child by another, if certain requirements are met. Tenn. Code Ann. § 24-7-123(a) (Supp.

2022). The interview “may be considered for its bearing on any matter to which it is

- 34 -

relevant in evidence at the trial” of the defendant. Id. Pursuant to this statute, the video

recording “may” be admitted if:

(1) The child testifies, under oath, that the offered video recording is a true

and correct recording of the events contained in the video recording and the

child is available for cross examination;

(2) The video recording is shown to the reasonable satisfaction of the court,

in a hearing conducted pretrial, to possess particularized guarantees of

trustworthiness. In determining whether a statement possesses particularized

guarantees of trustworthiness, the court shall consider the following factors:

(A) The mental and physical age and maturity of the child;

(B) Any apparent motive the child may have to falsify or distort the

event, including, but not limited to, bias or coercion;

(C) The timing of the child’s statement;

(D) The nature and duration of the alleged abuse;

(E) Whether the child’s young age makes it unlikely that the child

fabricated a statement that represents a graphic, detailed account

beyond the child’s knowledge and experience;

(F) Whether the statement is spontaneous or directly responsive to

questions;

(G) Whether the manner in which the interview was conducted was

reliable, including, but not limited to, the absence of any leading

questions;

(H) Whether extrinsic evidence exists to show the defendant’s

opportunity to commit the act complained of in the child’s statement;

(I) The relationship of the child to the offender;

(J) Whether the equipment that was used to make the video recording

was capable of making an accurate recording; and

(K) Any other factor deemed appropriate by the court;

(3) The interview was conducted by a forensic interviewer who met the

following qualifications at the time the video recording was made, as

determined by the court:

(A) Was employed by a child advocacy center that meets the

requirements of § 9-4-213(a) or (b); provided, however, that an

interview shall not be inadmissible solely because the interviewer is

employed by a child advocacy center that:

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(i) Is not a nonprofit corporation, if the child advocacy center

is accredited by a nationally recognized accrediting agency; or

(ii) Employs an executive director who does not meet the

criteria of § 9-4-213(a)(2), if the executive director is

supervised by a publicly elected official;

(B) Had graduated from an accredited college or university with a

bachelor's degree in a field related to social service, education,

criminal justice, nursing, psychology or other similar profession;

(C) Had experience equivalent to three (3) years of fulltime

professional work in one (1) or a combination of the following areas:

(i) Child protective services;

(ii) Criminal justice;

(iii) Clinical evaluation;

(iv) Counseling; or

(v) Forensic interviewing or other comparable work with

children;

(D) Had completed a minimum of forty (40) hours of forensic training

in interviewing traumatized children and fifteen (15) hours of

continuing education annually;

(E) Had completed a minimum of eight (8) hours of interviewing

under the supervision of a qualified forensic interviewer of children;

(F) Had knowledge of child development through coursework,

professional training or experience;

(G) Had no criminal history as determined through a criminal records

background check; and

(H) Had actively participated in peer review;

(4) The recording is both visual and oral and is recorded on film or videotape

or by other similar audiovisual means;

(5) The entire interview of the child was recorded on the video recording and

the video recording is unaltered and accurately reflects the interview of the

child; and

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(6) Every voice heard on the video recording is properly identified as

determined by the court.

Id. § 24-7-123(b). “The court shall make specific findings of fact, on the record, as to the

basis for its ruling under this section.” Id. § 24-7-123(d). The Tennessee Supreme Court

held that Code section 24-7-123 “serves as a specific and limited exception to the general

rule against the admission of hearsay evidence[.]” State v. McCoy, 459 S.W.3d 1, 10

(Tenn. 2014).

First, the Defendant argues that the second forensic interview lacks trustworthiness

because A.C. never testified, under oath, that the offered interview recording was a true

and correct recording of the events contained therein as required by Code section 24-7-

123(b)(1). He claims that A.C.’s testimony at trial suggests that if the prosecutor had asked

her if the recording was a true and correct recording of events from her second forensic

interview, A.C. would have been unable to recall.

Subsection (b)(1) requires that “[t]he child testif[y], under oath, that the offered

video recording is a true and correct recording of the events contained in the video

recording and the child is available for cross[-]examination[.]” Tenn. Code Ann. § 24-7-

123(b)(1). The Tennessee Supreme Court has held that this subsection “requires the

witness to authenticate the video recording before it is submitted, and to be available for

cross-examination at trial.” McCoy, 459 S.W.3d at 15; see State v. Stegall, No. W2022-

00628-CCA-R3-CD, 2023 WL 6319610, at *7 (Tenn. Crim. App. July 14, 2023), reh’g

denied (Sept. 27, 2023) (acknowledging that the victim may testify under oath at either the

pretrial hearing or the trial as to the accuracy and authenticity of the recording of the

forensic interview before the recording is played for the jury). “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to the court to support a finding by the trier of fact that the matter in

question is what its proponent claims.” Tenn. R. Evid. 901(a), (b)(1). Both Rule 901 and

the common law assign the trial court as the “arbiter of authentication issues[.]” Tenn. R.

Evid. 901, Advisory Comm’n Cmts. Questions concerning the admissibility of a forensic

interview rest within the sound discretion of the trial court, and this court will not interfere

with the exercise of that discretion in the absence of a clear showing of abuse appearing on

the face of the record. State v. Franklin, 585 S.W.3d 431, 448 (Tenn. Crim. App. 2019).

Here, at the pretrial hearing, the trial court concluded that it was “reasonably

satisfied that the video recording[s] possessed particularized guarantee[s] of . . .

trustworthiness” pursuant to Code section 24-4-123(b) based on the cross-examination

- 37 -

questions the defense asked. At no time during the proceedings did the defense claim that

the recording of the second forensic interview was anything other than a true and correct

recording of the events contained therein. At trial, A.C., who was ten years old, testified

she had talked to a woman at the CAC on two different occasions about what happened

with the Defendant and that these two interviews had been recorded. She asserted that she

watched these two recorded interviews at the prosecutor’s office shortly before trial. On

cross-examination, A.C. acknowledged that she watched the recordings of her forensic

interviews four times and that she watched these recordings the day prior to her trial

testimony. On redirect examination, A.C. identified the disk containing video recordings

from her first and second forensic interviews. She stated that she looked at the recordings

of her forensic interviews the prior day and put her initials on this disk. When the

prosecutor asked her what was on these recordings, A.C. replied, “It’s the interview that I

did with this woman. They also gave me these drawings.” Given A.C.’s young age, we

conclude that A.C.’s testimony fulfilled the requirement that “the offered video recording

is a true and correct recording of the events contained” therein. See Tenn. Code Ann. §

24-7-123(b)(1).

While A.C.’s testimony about the veracity and accuracy of the recording occurred

at trial, we believe she sufficiently authenticated the recording of the second forensic

interview before it was published to the jury during Elizabeth Benton’s testimony at trial.

See McCoy, 459 S.W.3d at 15; Stegall, 2023 WL 6319610, at *7. There is nothing in the

record to indicate that this recording was anything other than what A.C. claimed it to be.

See State v. Worley, No. M2023-00867-CCA-R3-CD, 2025 WL 101656, at *13 (Tenn.

Crim. App. Jan. 15, 2025) (concluding there was no plain error when the record did not

indicate that the recording of the forensic interview was anything other than what the

proponent claimed it to be), perm. app. denied (Tenn. June 18, 2025). Because the video

recording of A.C.’s second forensic interview was properly authenticated, the Defendant

cannot show a breach of a clear and unequivocal rule of law, that a substantial right of the

accused was adversely affected, or that the consideration of the error is necessary to do

substantial justice.

Moreover, the Defendant has failed to establish that he did not waive this issue for

tactical reasons. See Smith, 24 S.W.3d at 282; State v. Vance, 596 S.W.3d 229, 254 (Tenn.

2020) (reiterating that it is the defendant’s burden to persuade an appellate court that all

five factors for plain error review have been met). Defense counsel attempted to use A.C.’s

inconsistent statements, including the ones she made during her first and second forensic

interviews, to discredit A.C. at trial. He cross-examined A.C. at length regarding her

differing statements about the abuse that she provided in her trial testimony, her first

forensic interview, and her second forensic interview. The defense strategy clearly focused

on impeaching A.C. with all her inconsistent statements, including those from the first and

second forensic interviews, to support its theory that Ms. Cunningham, with the assistance

- 38 -

of Reguli, coerced A.C. into making false sexual abuse allegations against the Defendant

to gain an advantage in the Cunninghams’ divorce case. The record shows that the defense

attempted to use the second forensic interview in its defense strategy rather than directly

challenge its admission, which would have most likely been denied by the trial court.

Accordingly, the Defendant has failed to show he did not waive the playing of the second

forensic interview for tactical reasons.

Second, the Defendant asserts that the trial court erred in failing to consider all the

factors in Code section 24-7-123(b)(2) before concluding that the recording of the second

forensic interview possessed particularized guarantees of trustworthiness. He claims that

the trial court made findings on “only a few factors outlined in the statute” and failed to

consider other factors, “such as the mental and physical age of A.C., her maturity, or the

spontaneity of [A.C.’s] statements.” He also asserts that the trial court did not review the

video of the second forensic interview during the pretrial hearing, that A.C. did not testify

at the pretrial hearing, and that A.C. did not recall the events discussed in the forensic

interview during her trial testimony. He asserts that A.C.’s statements in the first forensic

interview contradicted her statements in the second forensic interview and her statements

at trial under oath. Lastly, he states that A.C. admitted that she lied during the second

forensic interview, wherein she incriminated the Defendant, and that she made numerous

false statements to the interviewer.

A trial court ruling on the admissibility of a video recording of a forensic interview

of a child “shall make specific findings of fact, on the record, as to the basis for its ruling[.]”

Tenn. Code Ann. § 24-7-123(d). Here, the Defendant essentially complains that the trial

court’s failure to make findings of fact on all the factors warrants a reversal of his

convictions. Despite the Defendant’s claims to the contrary, we disagree that the trial court

did not review the recording of the second forensic interview during the pre-trial hearing.

We also question whether the trial court’s specific findings of fact, which it made on the

record before concluding that the recording had particularized guarantees of

trustworthiness, were insufficient. In any case, we have meticulously reviewed the

recording of the second forensic interview and agree with the trial court that it possesses

particularized guarantees of trustworthiness based on all the factors in Code section 24-7-

123(b)(2). Accordingly, the Defendant is not entitled to plain error relief because he has

failed to show that a clear and unequivocal rule of law was breached, that a substantial right

of the accused was adversely affected, or that consideration of the error is necessary to do

substantial justice.

Third, the Defendant contends he was denied his right to confront and cross-

examine A.C. because A.C. was unable to discuss details of her alleged abuse at trial,

because she was unable to identify the portions of the second forensic interview that were

lies, and because she denied almost all the allegations of sexual abuse she had previously

- 39 -

disclosed in this forensic interview. He claims A.C.’s lack of memory and her reluctance

to testify made cross-examination impossible. The Defendant reiterates that A.C. admitted

she lied during the second forensic interview, including about her allegations that the

Defendant sexually abused her, and that A.C.’s statements at trial were inconsistent with

the ones she made in the second forensic interview.

We conclude that the Defendant has also waived any standalone issue regarding his

right to confront A.C. by failing to include this issue in his motion or amended motion for

new trial. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for

review shall be predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or other action

committed or occurring during the trial of the case, or other ground upon which a new trial

is sought, unless the same was specifically stated in a motion for a new trial; otherwise

such issues will be treated as waived.”). The Defendant also waived this issue by not

raising a confrontation objection at that time regarding the “quality” of A.C.’s testimony.

See Franklin, 585 S.W.3d at 455 (concluding that the confrontation claim was waived

where the victim was unwilling to discuss the details of the incident at trial but the

defendant did not raise a confrontation objection or request that the victim’s testimony be

stricken from the record); see also Tenn. R. App. P. 36(a) (stating that relief is not required

for a party “who failed to take whatever action was reasonably available to prevent or

nullify the harmful effect of an error”). Therefore, we will evaluate this issue for plain

error.

The right of confrontation provides “two types of protection for criminal defendants:

the right to physically face the witnesses who testify against the defendant, and the right to

cross-examine witnesses.” State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). The

admission of forensic interviews “does not violate a defendant’s right of confrontation so

long as the child witness authenticates the video recording and appears for cross-

examination at trial, as required by our statute.” McCoy, 459 S.W.3d at 16. “Although the

Confrontation Clause does not guarantee ‘cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish,’ it does require that a defendant be

given ‘an opportunity for effective cross-examination’ of the witness.” Id. at 15 (quoting

United States v. Owens, 484 U.S. 554, 559 (1988)).

Here, the record shows that A.C. authenticated the video recording and appeared for

cross-examination. It also shows that the Defendant had the opportunity to conduct a full

cross-examination of A.C. at trial. See State v. Ruzicka, No. W2023-00134-CCA-R3-CD,

2024 WL 3387294, at *12-13 (Tenn. Crim. App. July 12, 2024). Here, A.C. testified, and

the defense conducted an extensive cross-examination of her. We conclude that A.C.’s

hesitancy to testify regarding the details of the sexual abuse does not detract from the fact

that the Defendant was given the opportunity to cross-examine her at trial in accordance

- 40 -

with the Confrontation Clause. Accordingly, the Defendant has failed to show that a clear

and unequivocal rule of law was breached, that a substantial right of the accused was

adversely affected, or that consideration of the error is necessary to do substantial justice.

Because the Defendant has failed to establish all five factors with regard to these issues, he

is not entitled to plain error relief.

II. Sufficiency of Evidence. The Defendant maintains that the evidence presented

at trial is insufficient to sustain all his convictions for rape of a child and aggravated sexual

battery. He asserts that A.C. denied several times at trial that the Defendant ever touched

her “privates” or had her touch his “privates.” He notes that although A.C. continued to

assert that the Defendant was “inappropriate” during her trial testimony, she failed to

provide specific details supporting the elements of the conviction offenses. Moreover, he

claims A.C. admitted she was dishonest during her forensic interview and that some of her

lies concerned the “inappropriate stuff” with the Defendant, although she could not recall

the specific lies she told. Furthermore, he highlights that A.C.’s medical exam did not

reveal evidence of sexual assault or penetration. The Defendant insists that the video of

the forensic interview was improperly admitted and that without this interview, the State

is left with “virtually nothing proving the elements of Rape of a Child or Sexual Battery.”

In response, the State contends that, despite A.C.’s contradictory evidence, any rational

trier of fact would have found the Defendant was guilty of rape of a child and aggravated

sexual battery after A.C. provided testimony regarding instances of the Defendant’s

specific conduct. We conclude that there is sufficient evidence to sustain the Defendant’s

convictions.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

“Appellate courts evaluating the sufficiency of the convicting evidence must determine

‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court

evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from that

evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318

S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691

(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for

- 41 -

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of

the witnesses, determine the weight given to witnesses’ testimony, and reconcile all

conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury

determines the weight to be given to circumstantial evidence, and the inferences to be

drawn from this evidence, and the extent to which the circumstances are consistent with

guilt and inconsistent with innocence, are questions primarily for the jury. Dorantes, 331

S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering

the sufficiency of the evidence, this court “neither re-weighs the evidence nor substitutes

its inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

As charged in this case, rape of a child is the “unlawful sexual penetration of a

victim by the defendant or the defendant by a victim, if the victim is more than three (3)

years of age but less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522 (Supp.

2013). “Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s body or of any

object into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body, but emission of semen is not required[.]” Id. § 39-13-501(7).

As charged in this case, aggravated sexual battery is “unlawful sexual contact with

a victim by the defendant or the defendant by a victim . . . [where] [t]he victim is less than

thirteen (13) years of age.” Id. § 39-13-504(a)(4). “Sexual contact” is statutorily defined

to include:

the intentional touching of the victim’s, the defendant’s, or any other

person’s intimate parts, or the intentional touching of the clothing covering

the immediate area of the victim’s, the defendant’s, or any other person’s

intimate parts, if that intentional touching can be reasonably construed as

being for the purpose of sexual arousal or gratification[.]

Id. § 39-13-501(6). “‘Intimate parts” includes semen, vaginal fluid, the primary genital

area, groin, inner thigh, buttock or breast of a human being[.]” Id. § 39-13-501(2).

“‘Intentional’ means that a person acts intentionally with respect to the nature of the

conduct or to a result of the conduct when it is the person’s conscious objective or desire

to engage in the conduct or cause the result[.]” Id. § 39-11-106(a)(18) (Supp. 2011).

- 42 -

The Defendant argues that A.C.’s testimony at trial was inconsistent, specifically

referencing the following portions of A.C.’s testimony on direct examination:

Q. All right. So, when your dad did inappropriate things, what parts of

his body touched you?

A. Sometimes hand.

Q. Okay.

A. And sometimes privates.

Q. Okay. And tell the jury where all he would touch you with his hand.

A. Mostly like the ribs like the ribs from my rib cage sometimes.

Q. Okay. Were there any times that he would touch you on your privates

with his hand?

A. Not that I can remember, no.

Q. Okay. Were there times when he would touch you on the butt with

his hand?

A. No.

Q. Okay. Where would he touch you with his privates? Okay. So when

he would—did he ever touch your private with his private?

A. No.

Q. Okay. Did he ever have you touch him in any way?

A. No.

Q. What about mouths? Was [sic] anybody’s mouths involved in

anything.

A. No, not that I know.

...

- 43 -

Q. Okay. Were there any times when his private touched your private?

A. No.

....

Q. Okay. Do you remember a time that he touched you on your face with

his private?

A. No.

Q. Okay. You don’t remember that?

A. No.

The Defendant emphasizes that A.C. said she was “not so scared and nervous” during her

trial testimony.

The Defendant also references later testimony by A.C. The prosecutor had A.C.

clarify on a male anatomical drawing what a male’s private part was and then asked, “So,

has that part of your dad’s body ever touched your body anywhere that you can remember?”

A.C. replied, “Not that I can remember.” A.C. stated that she remembered one time when

the Defendant “licked [her] privates”; she first claimed this happened “only once” but later

stated that it happened “three or four times.” The Defendant claims that this testimony

conflicted with her earlier testimony that the Defendant never touched her privates and her

prior testimony that mouths were never involved in the conduct.

The Defendant argues that testimony from a single witness will be disregarded when

the testimony “is not of a cogent and conclusive nature, and ‘if it is so indefinite,

contradictory or unreliable that it would be unsafe to rest a conviction thereon.” Letner v.

State, 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974) (quoting 23 C.J.S. Criminal Law §

903). He claims that because A.C. made “multiple contradictory sworn statements,” her

testimony is unsafe to rest a conviction thereon. We disagree.

For Count 1, the State elected the following offense: “Count 1 RAPE OF A CHILD

alleges an act of penile-genital penetration wherein A.C. describes the defendant putting

his ‘private’ in her ‘private’ and specified both the female and male genitalia on anatomical

drawings during the 2/10/20 forensic interview.” In the February 20, 2020 forensic

- 44 -

interview with A.C., which was played for the jury, A.C. pointed to the boy’s penis on the

anatomical drawing and stated that she called this area a “winky.” A.C. then pointed to the

girl’s vaginal area on the anatomical drawing to identify one of the two areas that A.C. had

previously stated that her dad used his “winky” to “push[] hard sometimes.” When Benton

asked what her dad does when he “pushes hard,” A.C. pointed to the boy’s penis on the

anatomical drawing and then she said her dad puts his penis in her vaginal area, and she

pointed to this area on the anatomical drawing of the girl.” When Benton asked where

exactly her dad put his “winky” when he puts it in her vaginal area, A.C. replied that her

dad put it “where girls go potty . . . like go pee pee.” Benton then asked if her dad pushed

hard on her vaginal area or buttocks, and A.C. pointed to the penis and vaginal areas on the

anatomical drawings and said that her father put his privates in her vagina “the most” and

this happens when her legs are “crossed and not crossed[.]” A.C. pointed to the girl’s

vaginal area on the anatomical drawing and said that when her legs were not crossed her

dad’s winky would go in “the hole” where she “goes tinkle.”

For Count 2, the State elected the following offense: “Count 2 RAPE OF A CHILD

alleges an act of painful penile-genital penetration based upon A.C.’s description during

the 2/10/20 forensic interview that ‘sometimes’ the defendant ‘pushes hard’ and that said

penetration ‘hurt.’” In the February 20, 2020 forensic interview, A.C. stated that her dad

had been “putting his privates in mine.” She added that her father put his privates in her

legs and in her privates. A.C. said, “Sometimes he pushes hard, and I don’t really like it.”

A.C. later said her dad “sometimes pushes hard” with his “privates” or “winky” and when

he does it on her vagina it “hurts.”

For Count 3, the State elected the following offense: “Count 3 RAPE OF A CHILD

alleges an act of penile-anal penetration wherein A.C. describes the defendant putting his

private in her ‘butt’ and specified both the female buttocks and male genitalia on

anatomical drawings during the 2/10/20 forensic interview.” In the February 20, 2020

forensic interview, A.C. pointed to the boy’s penis on the anatomical drawing, which she

called a “winky.” A.C. then pointed to the girl’s buttocks area on the anatomical drawing

to identify one of the two areas that A.C. had previously stated that her dad uses his

“winky” to “push[] hard sometimes.” A.C. pointed to the boy’s penis and stated that her

dad put his penis in her buttocks, and she pointed to this area on the anatomical drawing of

the girl. When Benton asked how it felt when her dad put his “winky” in her buttocks,

A.C. said, “It hurts.” Benton asked how many times he put his “winky” here, pointing to

the buttocks on the girl’s anatomical drawing, and A.C. said her father put his penis in her

buttocks “like forty-six times.”

For Count 4, the State elected the following offense: “Count 4 RAPE OF A CHILD

alleges an act of painful penile-anal penetration based upon A.C.’s description during the

2/10/20 forensic interview that ‘sometimes’ the defendant ‘pushes hard’ and that said

- 45 -

penetration ‘hurt.’” In the February 20, 2020 forensic interview, A.C. said her dad

“sometimes pushes hard” with his “privates” or “winky” and when he does that on her butt

“it hurts.”

For Count 5, the State elected the following offense: “Count 5 RAPE OF A CHILD

alleges an instance of cunnilingus based upon A.C.’s description during the 2/10/20

forensic interview of the defendant ‘licking’ her private part.” In the February 10, 2020

forensic interview, A.C. said her mother “would always catch us” and her dad did not like

it so he would “hide under the blanket.” She said this occurred at their “old house” and in

her mom and dad’s room. She said her mom did not see anything, but she knew

“inappropriate” things happened because they were under the blanket together.

Specifically, she said her father would “lick her privates” by putting his “tongue on it.”

She said this happened more than one time and that her father “did a lot of things more

than one time.” At trial, A.C. testified that she remembered an incident where the

Defendant “licked [her] privates” and although she initially stated that this happened only

one time, she quickly corrected herself and stated that this had happened “three or four

times.”

For Count 6, the State elected the following offense: “Count 6 RAPE OF A CHILD

alleges an instance of cunnilingus based upon A.C.’s statement made during her 10/5/20

visit to Our Kids Center wherein A.C. said that the defendant’s tongue ‘went inside’ her

‘lady part.’” Howlett testified that at the October 5, 2020 appointment with A.C. at Our

Kids Center, A.C. told her that the Defendant “licked” her lady parts, and that this occurred

more than one time. Nurse Practitioner Littrell testified that she examined A.C. on October

5, 2020, at Our Kids Center and knew that A.C. provided in her medical history to Howlett

that the Defendant touched her “lady parts” and that the Defendant put his tongue inside

her lady parts.

For Count 7, the State elected the following offense: “Count 7 RAPE OF A CHILD

alleges an instance of fellatio based upon A.C.’s statement made during her 10/5/20 visit

to Our Kids Center wherein A.C. said that the defendant ‘made me put my mouth on his

part.’” Howlett testified that at the October 5, 2020 appointment with A.C. at Our Kids,

A.C. said that sometimes the Defendant made her put her mouth on his penis. Nurse

Practitioner Littrell testified that A.C. provided in her medical history to Howlett that the

Defendant made her touch his “part” with her hand or her mouth.

For Count 8, the State elected the following offense: “Count 8 AGGRAVATED

SEXUAL BATTERY alleges an act of sexual contact based upon A.C.’s description during

the 2/10/20 forensic interview of the defendant having A.C. cross her legs while the

defendant slid his ‘winky’ between her legs ‘almost where I go pee’ (indicating an area

between her upper thighs and just below her genitalia).” In the February 20, 2020 forensic

- 46 -

interview, A.C. said that her father put his privates in her vagina “the most” and this

happens when her legs are “crossed and not crossed” and that her legs were “mostly”

crossed when the “yucky white/yellow stuff comes out.” She said that when her legs were

crossed, her dad’s winky would go “almost where [she] goes pee pee.” At trial, A.C.

testified that during one incident, the Defendant’s privates touched her legs after the

Defendant told her to have her legs “crossed.”

For Count 9, the State elected the following offense: “Count 9 AGGRAVATED

SEXUAL BATTERY alleges an act of sexual contact based upon A.C.’s statement made

during her 10/5/20 visit to Our Kids Center wherein A.C. said that the defendant ‘put my

feet on his part.’” Howlett testified that A.C. stated during her October 5, 2020 visit that

the Defendant sometimes put A.C.’s feet on his penis.

For Count 10, the State elected the following offense: “Count 10 AGGRAVATED

SEXUAL BATTERY alleges an act of sexual contact based upon A.C.’s statements made

during her 2/10/20 forensic interview wherein A.C. said that the defendant hit A.C.’s face

with his ‘winky’ while trying to ‘be funny.’” During the February 20, 2020 forensic

interview, A.C. said that her dad “tried to be funny” and hit her in the face with his

privates.”

For Count 11, the State elected the following offense: “Count 11 AGGRAVATED

SEXUAL BATTERY alleges an act of sexual contact based upon A.C.’s statement made

during her 2/10/20 forensic interview wherein A.C. said that the whitish-yellow substance

that came out of the defendant’s ‘winky’ went onto A.C.’s chest.” At trial, A.C. testified

that “white, yellowish, chunky like, thick stuff” would come out of the Defendant’s private

part. During the February 10, 2020 forensic interview, A.C. was asked if she had ever seen

anything come out of her dad’s “winky,” and A.C. said that it was “this really gross stuff”

that she “didn’t really like” that was “whitish yellow.” A.C. said that the “yucky

white/yellow” stuff only got on her chest one time, and the rest of the time it got on the

bed. At trial, A.C. testified that she remembered “white, yellowish, chunky like, thick

stuff” would come out of the Defendant’s private, and that this stuff from the Defendant’s

private went “[m]ostly on [her] chest.”

For Count 12, the State elected the following offense: “Count 12 AGGRAVATED

SEXUAL BATTERY alleges an act of sexual contact based upon A.C.’s statement made

during her 2/10/20 forensic interview wherein A.C. said that the defendant licked the

whitish-yellow substance off A.C.’s chest.” During the February 10, 2020 forensic

interview, A.C. stated that one time her father “licked” the “whitish yellow” substance off

her “chest” even though she didn’t think it was “really good or something to drink.” At

trial, A.C. testified that the “white, yellowish, chunky like, thick stuff” from the

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Defendant’s private went “[m]ostly on [her] chest” and that the Defendant would clean it

off by “lick[ing] it off or sometimes clean[ing] it with like a paper towel.”

For Count 13, the State elected the following offense: “Count 13 AGGRAVATED

SEXUAL BATTERY alleges an act of sexual contact based upon A.C.’s statement made

during her 10/5/20 visit to Our Kids Center wherein A.C. said that the defendant ‘made me

touch with my hand on his part.’” Howlett testified that during A.C.’s October 5, 2020

visit to Our Kids Center, Howlett then asked A.C. if she had to touch the Defendant’s body

in any way, and A.C. replied, “[H]e made me. I didn’t want to.” Howlett said A.C. told

her that the Defendant made her touch his penis with her hand, and that this occurred “a lot

of times.” Nurse Practitioner Littrell testified that she examined A.C. on October 5, 2020,

at Our Kids Center and knew that A.C. provided in her medical history to Howlett that the

Defendant made her touch his “part” with her hand or her mouth.

This court has recognized that “contradictory [sworn] statements by a witness in

connection with the same fact cancel each other.” State v. Matthews, 888 S.W.2d 446, 449

(Tenn. Crim. App. 1993) (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476,

482 (Tenn. Crim. App. 1978)); see State v. Harris, No. M2000-02143-CCA-R3-CD, 2001

WL 1218582, at *2 (Tenn. Crim. App. Oct. 12, 2001) (“The rule of cancellation is typically

limited to circumstances in which the witness has sworn to each statement.”). The “rule of

cancellation” addresses circumstances in which “the proof of [a] fact lies wholly with one

witness, and he both affirms and denies it,” resulting in no “evidence at all to prove the

fact.” Matthews, 888 S.W.2d at 449-50 (quoting Johnston v. Cincinnati N.O. & T.P. Ry.

Co., 240 S.W. 429, 436 (Tenn. 1922)). The Matthews court explained that unlike a

situation in which the jury hears contradictory testimony from two different witnesses and

must make a credibility determination, “a witness’s self-contradicting testimony means

that each version carries equal weight and cannot be resolved by the jury except through

whimsy.” Id. (citing Johnston, 240 S.W. at 436). The rule of cancellation applies “only

when inconsistency in a witness’[s] testimony is unexplained and when neither version of

his testimony is corroborated by other evidence.” Id. at 450 (citing Taylor, 573 S.W.2d at

483).

Generally, a defendant may be convicted upon the uncorroborated testimony of a

single witness. Letner, 512 S.W.2d at 649; see State v. McKnight, 900 S.W.2d 36, 48

(Tenn. Crim. App. 1994) (reiterating that a “defendant can be convicted of simple rape

based solely upon testimony of the victim”). However, exceptional circumstances may

require this court to disregard a witness’s testimony as a matter of law:

[A]lthough as a general rule a conviction may rest upon the testimony of a

single witness, though it be contradicted by others or appear uncertain or

inconsistent, the rule does not apply if the testimony of such single witness

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is not of a cogent and conclusive nature, and “if it is so indefinite,

contradictory or unreliable that it would be unsafe to rest a conviction

thereon.”

Letner, 512 S.W.2d at 649 (citing 23 C.J.S. Criminal Law § 903(19)); but see State v.

Johnson, 1988 WL 69539, at *2 (Tenn. Crim. App. July 8, 1988) (noting that the above

language was “clearly dictum” and observing that “[t]he Letner court was at pains to deal

with an eyewitness whose testimony was not wholly consistent with the testimony of

several others who were at the scene”), and State v. Walker, No. 01C01-9711-CR-00535,

1999 WL 219629, at *3 (Tenn. Crim. App. Apr. 16, 1999) (distinguishing the Walker case

from Letner because the witness’s statements immediately following the incident were

explained by “her intoxicated and hysterical state” and were influenced by the defendant’s

“suggestion that the victim had shot himself,” and her trial testimony was corroborated by

several pieces of evidence).

Despite the Defendant’s claims, A.C. did not give contradictory sworn statements

because the victim’s only sworn testimony was provided by her at trial. See State v.

Franklin, 585 S.W.3d at 458. We conclude that the statement A.C. provided during the

second forensic interview was not a sworn statement. See id. (“[W]e do not find that the

four-year-old victim’s statements during the forensic interview were sworn statements.”).

Accordingly, despite the Defendant’s arguments to the contrary, A.C. provided no

contradictory sworn statements, and the rule of cancellation does not apply. See State v.

Hopkins, No. E2016-02192-CCA-R3-CD, 2017 WL 4221148, at *7 (Tenn. Crim. App.

Sept. 22, 2017) (concluding that although the witness gave unsworn, contradictory

statements to police prior to trial, she gave consistent testimony at trial implicating

Hopkins, which meant that the rule of cancellation did not apply).

We reiterate that the jury as the trier of fact must evaluate the credibility of the

witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts

in the evidence. Campbell, 245 S.W.3d at 335 (citing Byrge, 575 S.W.2d at 295). Here,

the Defendant’s sufficiency claims focus on his complaints regarding A.C.’s credibility.

Despite the Defendant’s argument to the contrary, it was the jury’s prerogative to accredit

the proof from A.C.’s February 10, 2020 forensic interview, the testimony of Howlett and

Nurse Practitioner Littrell from Our Kids Center, and A.C.’s substantial testimony at trial

that supported the counts of the indictment.

We believe any inconsistencies in A.C.’s testimony are explained by A.C.’s very

young age at the time of the abuse, the ongoing nature of the Defendant’s abuse, and the

delay between the abuse and A.C.’s testimony at trial. See State v. Radley, 29 S.W.3d 532,

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537 (Tenn. Crim. App. 1999) (stating that “a jury’s verdict will not be disturbed unless the

inaccuracies or inconsistencies are so improbable or unsatisfactory as to create a reasonable

doubt of the appellant’s guilt”). We have already determined that the video recording of

A.C.’s second forensic interview was properly admitted into evidence. While there were

some inconsistencies in A.C.’s accounts of the offenses, the jury resolved these

inconsistencies in favor of the State, as was its prerogative. See State v. Elkins, 102

S.W.3d, 582-83 (Tenn. 2003) (concluding that the evidence was sufficient to support the

conviction for rape of a child because the inconsistencies in the victim’s testimony “were

not such as to create a reasonable doubt as to the defendant’s guilt on the child rape

charge”); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996) (holding that inconsistencies in

the evidence are resolved by the trier of fact); Byrge, 575 S.W.2d at 295 (reiterating that

“the weight and credibility of testimony of a witness, and the reconciliation of conflicts in

testimony, are matters entrusted exclusively to the jury as the triers of fact”). We decline

the Defendant’s invitation to re-weigh the evidence or to substitute our inferences for those

drawn by the jury. Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659). The

statements A.C. made during the February 10, 2020 forensic interview, the statements A.C.

gave to Howlett, and A.C.’s statements recorded in her medical history, as testified to by

Nurse Practitioner Littrell, all occurred within a short time of the abuse and provided

sufficiently consistent evidence of the Defendant’s guilt. The jury heard all the proof

presented at trial and was able to fully consider A.C.’s credibility before rendering its

verdict. Viewing the evidence in the light most favorable to the State, we conclude the

evidence was sufficient to sustain all thirteen of the convictions in this case.

III. Prior Bad Acts. The Defendant argues that the trial court erred in admitting

prior bad act evidence via a text message thread between Bratcher and Ms. Cunningham,

suggesting that he had cheated on his wife and had been previously violent toward her. He

also asserts that admission of this evidence was not harmless because this evidence

undermined the fairness of his trial and, more probably than not, affected the jury’s

assessment of his character, which was a key issue at trial. Referencing his previous issue,

he claims that there was insufficient evidence to sustain his convictions because there was

no corroborative evidence of A.C.’s allegations, A.C. initially denied any sexual abuse by

the Defendant, A.C. admitted she lied during her forensic interviews, and A.C. waffled on

the allegations. The Defendant claims that considering the insufficiency of the evidence,

the admission of the prior bad act evidence, which amounted to a “character assassination,”

likely tipped the scales unfairly against him. In response, the State asserts that the

Defendant waived this issue by not requesting a Rule 404(b) hearing and by objecting on

the ground that the evidence was irrelevant, rather than this evidence constituted a prior

bad act. We conclude that the Defendant has waived this issue and is not entitled to plain

error review.

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During a pretrial hearing, the State asked about any redactions in the forensic

interviews. The State noted that there were statements made during A.C.’s forensic

interviews that the Defendant was abusive toward the family, and that in accordance with

Rule 404(b), that evidence regarding “violence, or hot tempers, or yelling and screaming

in the house, just to the extent that [the Defendant] could have been scary to a child would

be relevant for purposes of creating a full picture for the jury in this case.” The trial court

held that if the defense had a request for redaction for this type of information from the

forensic interview recordings, any redactions would have to occur prior to trial because the

court would not stop in the middle of trial to do such redactions.

At trial, the State had Bratcher identify a text message thread between herself and

Ms. Cunningham, which took place between June 4, 2019, and June 7, 2019. When the

State tried to enter this text message thread into evidence, the defense asked for a bench

conference. During this conference, defense counsel said he had no objection to these text

messages coming in except for the statement within the thread, wherein Bratcher told Ms.

Cunningham that the Defendant had “screwed” with Ms. Cunningham’s mind for years.

Defense counsel argued that Bratcher did not “have the ability to testify to that” and that

there was “no foundation on that.” Defense counsel also objected to a second statement

within the thread, wherein Bratcher told Ms. Cunningham that the Defendant was “a

powerful manipulator” and “narcissist” who had “worked to control [her] mind for years”

and that the Defendant was “a cheat” and “a liar.” Defense counsel claimed this second

statement “had not been testified about” and was not relevant. The trial court overruled

the defense’s objection to these statements within the text thread. The court then admitted

the text thread as a collective exhibit to Bratcher’s testimony.

On cross-examination, defense counsel read Bratcher’s texts to Ms. Cunningham.

Bratcher confirmed that she had texted Ms. Cunningham that “they” would not let Ms.

Cunningham keep the children away from the Defendant and that the Defendant would

“continue to hurt them” if the Defendant did not have charges filed against him. Bratcher

explained that she wrote this because Ms. Cunningham had mentioned getting the

Defendant into “therapy” and that she would like for her kids to see their father while he

was “supervised.” She stated that it was clear to her that Ms. Cunningham was “easily

manipulated.” Bratcher agreed that she was trying to convince Ms. Cunningham that if she

did not get the authorities involved, then Ms. Cunningham’s children would have to spend

time alone with the Defendant. Bratcher stated that Ms. Cunningham told her that she did

report the abuse, which was a lie. When Ms. Cunningham told her that she had “reported

it” and that her mother was “mostly working on this” and that Bratcher could believe her

or not, Bratcher said she was trying to give Ms. Cunningham every opportunity to tell her

something that made sense. Bratcher asserted her belief that it would be better if Ms.

Cunningham reported the abuse. She said Ms. Cunningham later told her that four days

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after she reported the abuse, they “closed the case” against the Defendant. At this point,

defense counsel and Ms. Bratcher had the following exchange:

Q. You go on to say some things, like this man is a manipulative

narcissist. He has worked to control your mind for many years. He’s

a cheat and a liar. He’s totally disregarded your heart for many years,

right?

A. Yes.

Q. Now, that information was provided to you through [Ms.

Cunningham] over the years, is that right?

A. I suppose you could say that. I also saw things. So, yeah.

Q. Well, you saw things of him being a cheat and a liar?

A. Yes.

Q. How so?

A. My husband saw him in the car with another girl when he was

supposed to be on his way to work one day. I saw bruises on [Ms.

Cunningham] frequently when she would come to my house. I saw

many, many evidences [sic] of him being a cheat and a liar and just

an all around not good man to her

Q. But the first time—and she did disclose certain things like that to you

over the years, yes?

A. Yes.

Q. That he was cheating on her or abusive or what have you, yes?

A. Yes.

After the conclusion of Bratcher’s testimony, the prosecutor argued, “[J]ust for the

purposes of the record[,] . . . the text messages were provided in discovery in the State’s

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original discovery response [and t]he Defense has been in possession of these text messages

since that time.” The prosecutor then asserted,

[T]he first time we ever heard about any type of proposed redactions

was in the midst of [Bratcher’s] testimony. After the Defense actually put in

their opening statements information specifically contained in the text

discussions between [Bratcher] and Victoria Cunningham about her lying

about having reported [the abuse] to the police . . . .

So, I’m just saying, any type of proposed redactions would have been,

I think, more appropriately addressed at an earlier time.

After the trial court stated that the defense’s objection was “preserved” and asked if the

defense needed to put anything else on the record, defense counsel stated:

I will just simply put on the record there is nobody—even though

[these texts] were produced in discovery, there is no way for me to know

what the State is going to introduce in evidence. And, therefore, as this was

being initially proposed, I made the objection as to certain statements within

those text messages that I felt were both irrelevant, both prior bad acts as well

as her not having the foundational ability to testify to those things. So, as

long as that’s on the record, I’m good.

Although the Defendant contends that the trial court abused its discretion in

admitting this text message thread under Rule 404(b), the record shows that defense

counsel initially objected to this evidence on the grounds of lack of foundation and

relevance. During his cross-examination of Bratcher, defense counsel read the texts at

issue aloud to the jury and questioned Bratcher about those specific texts. Following

Bratcher’s testimony, defense counsel made a final argument in the jury-out hearing that

the statements within the text thread were both “irrelevant” and “prior bad acts.” We

conclude that the Defendant waived this issue because he never requested a Rule 404(b)

hearing on the text thread. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be

construed as requiring relief be granted to a party . . . who failed to take whatever action

was reasonably available to prevent or nullify the harmful effect of an error.”); see also

Tenn. R. Evid. 404(b)(1) (stating that “[t]he court upon request must hold a [Rule 404(b)]

hearing outside the jury’s presence” (emphasis added)); State v. Jones, 151 S.W.3d 494,

498 n.3 (Tenn. 2004) (refusing to consider a Rule 404(b) claim where the defendant failed

- 53 -

to request a 404(b) hearing); State v. Gunn, No. W2016-00338-CCA-R3-CD, 2017 WL

4861664, at *12 (Tenn. Crim. App. Oct. 26, 2017) (concluding that the issue was waived

because “the defendant did not request a 404(b) hearing” and “the trial court was not

obligated to conduct one”).

Finally, we note that the Defendant never requested plain error review in his initial

brief, never filed a reply brief addressing the State’s allegation of waiver of the Rule 404(b)

issue, and never asked for plain error review of this issue. See Bledsoe, 226 S.W.3d at 355

(“It is the accused’s burden to persuade an appellate court that the trial court committed

plain error.”); State v. Thompson, No. W2022-01535-CCA-R3-CD, 2023 WL 4552193, at

*5 (Tenn. Crim. App. July 14, 2023) (“Where a defendant fails to respond to a waiver

argument, only particularly compelling or egregious circumstances could typically justify

our sua sponte consideration of plain error relief.”). Therefore, we conclude that the

Defendant is not entitled to plain error review of this issue.

IV. Sentencing. The Defendant contends that the trial court abused its discretion

in imposing an excessive sentence of 100 years, which he claims was not justly deserved

and was not in accordance with the purposes of the sentencing act. Specifically, he claims

the trial court erred in applying two sentencing enhancement factors and in discounting

substantial mitigation. He also claims the trial court erred in applying Code sections 40-

35-115(b)(2) and 40-35-115(b)(5) to impose partially consecutive sentencing. The State

responds that the trial court properly exercised its discretion in imposing the sentence in

this case. We agree with the State.

Pursuant to State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012), this court reviews

sentencing decisions under “an abuse of discretion standard of review, granting a

presumption of reasonableness to within-range sentencing decisions that reflect a proper

application of the purposes and principles of our Sentencing Act.” The 2005 amendments

to the Sentencing Act “served to increase the discretionary authority of trial courts in

sentencing.” Id. at 708.

Pursuant to the 2005 amendments to the Sentencing Act, a trial court must consider

the following when determining a defendant’s specific sentence:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

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(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; [and]

(7) Any statement the defendant wishes to make on the defendant's own

behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b) (Supp. 2011). The defendant has the burden of showing

the impropriety of the sentence on appeal. Id. § 40-35-401, Sentencing Comm’n Cmts.

The trial court shall impose “a sentence justly deserved in relation to the seriousness of the

offense[.]” Id. § 40-35-102(1). The court must also consider the defendant’s potential for

rehabilitation or treatment. Id. §§ 40-35-102(3)(C), -103(5). In addition, the court must

impose a sentence “no greater than that deserved for the offense committed” and “the least

severe measure necessary to achieve the purposes for which the sentence is imposed.” Id.

§§ 40-35-103(2), (4).

At the sentencing hearing, the presentence investigation report, the Defendant’s

statement of allocution, and letters in support of the Defendant were made exhibits. The

defense presented several witnesses in support of the Defendant. Desmond Dickerson, a

pastor and an adjunct professor, testified that he had known the Defendant’s family for

over twenty years and had known the Defendant since he was a teenager. Dickerson said

he knew the Defendant to be of high character, reliable, and a man of his word. He asked

the trial court to be “as lenient as possible” when sentencing the Defendant. John Peterson

testified that he had known the Defendant since he was fourteen or fifteen years old. In the

last year, Peterson hired the Defendant as a camera operator and editor, and he found the

Defendant to be very knowledgeable, hardworking, and responsible. He asked the court to

be merciful in sentencing the Defendant. Keith Hatchett testified that he had known the

Defendant for two years and had worked with him over the last year to grow his insurance

company. He stated that the Defendant had excellent character, a strong work ethic,

regularly studied his Bible, and did not drink alcohol. Hatchett did not believe the

Defendant was “guilty of anything” and asked the trial court to give the most lenient

sentence possible. John Elliott Cunningham, the Defendant’s father, testified that the

Defendant had a strong work ethic doing various jobs in the music industry. He described

the Defendant as a good father, a strong provider for his family, and a man of “impeccable

character.” He stated that the Defendant was a very compassionate and very empathetic

person, and he asked the trial court for mercy in sentencing the Defendant. Mary Katherine

Cunningham, the Defendant’s mother, testified that the Defendant was “strong-willed,”

“creative,” “compassionate,” and “empathetic.” She claimed the whole situation was

“unnecessary” and “devastating” given the Defendant’s innocence, and she asked the trial

court to “have mercy” and “show compassion” because the Defendant had “so much to

offer to the world.”

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At this hearing, the trial court asserted that it had considered the evidence presented

at trial and at the sentencing hearing, the letters in support of the Defendant, the

Defendant’s statement of allocution, the presentence investigation report, the principles of

sentencing, the arguments concerning alternatives in the sentencing length, the nature and

characteristics of the criminal conduct in the case, the evidence and information regarding

enhancement and mitigating factors, the statistical information regarding sentencing

practices provided by the Administrative Office of the Courts, and the potential for

rehabilitation or treatment. See id. § 40-35-210(b).

For Counts 1 through 7, the trial court determined that the Defendant was a Range

II, multiple offender, which meant that his sentence range was twenty-five to forty years

for each of these counts. See id. §§ 40-35-106(a), -112(b)(1). For Counts 8 through 13,

the Defendant was a Range I, standard offender, which carried a range of eight to twelve

years for each of these counts. See id. §§ 40-35-105, -112(a)(2).

At the conclusion of the sentencing hearing, the trial court sentenced the Defendant

to thirty years for each conviction in Counts 1 through 7. See id. §40-35-112(b)(1). It also

imposed a sentence of ten years for each conviction in Counts 8 through 13. See id. §40-

35-112(a)(2). The trial court then ordered Counts 1 and 2 served concurrently, Counts 3

and 4 served concurrently, and Counts 5 and 6 served concurrently before ordering Counts

1 and 2, Counts 3 and 4, and Counts 5 and 6 served consecutively to one another. The

court also ordered Counts 8 through 13 served concurrently with one another but

consecutively to the sentences in the rape of a child counts and ordered Count 7 served

concurrently with Counts 1 through 6 and Counts 8 through 13, for an effective sentence

of 100 years.

At the motion for new trial hearing, the trial court held that it “put on the record. . .

the grounds that it considered” in applying enhancement factors (7) and (14) as well as

factors for consecutive sentencing. In addition, the court asserted that it would “stand by

the weight” that it “put on the record for mitigating factors during sentencing.”

First, the Defendant argues that the trial court erred in applying enhancement factor

(7) and (14) because the evidence did not support application of such factors. He also

contends that the trial court erred in failing to consider mitigating factors concerning the

Defendant’s lack of a criminal record and the testimony of several defense witnesses

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