State of Tennessee v. Ezekiel Abraham Schmaltz

10/29/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 22, 2025 Session

STATE OF TENNESSEE v. EZEKIEL ABRAHAM SCHMALTZ

Appeal from the Criminal Court for Knox County

No. 119795 Hector Sanchez, Judge1

___________________________________

No. E2024-01107-CCA-R3-CD

___________________________________

The Defendant, Ezekiel Abraham Schmaltz, appeals his Knox County jury convictions of

two counts of observation without consent and one count of assault, for which he received

an effective sentence of two years and six months’ incarceration. On appeal, the Defendant

argues (1) the evidence was insufficient to sustain his convictions, (2) the State committed

prosecutorial misconduct by discussing punishment with the prospective jurors during voir

dire, (3) the trial court erred by admitting extrinsic proof of the victim’s prior consistent

statements to rehabilitate her credibility, (4) the trial court erred by restricting the

Defendant’s ability to cross-examine two State’s witnesses, and (5) the cumulative effect

of trial errors entitles him to a new trial. Following our review, we remand the case for

merger of the Defendant’s convictions of observation without consent into a single

conviction and the entry of corrected judgments. We otherwise affirm the judgments of

the trial court.

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

Judgments of the Criminal Court Affirmed in Part;

Remanded for Entry of Corrected Judgments

STEVEN W. SWORD, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Mary J. Newton (on appeal and at trial); and Chelsea C. Moore (at trial), for the appellant,

Ezekiel Abraham Schmaltz.

1

This case was originally assigned to the Honorable Kyle A. Hixson prior to his appointment and

confirmation to this court on September 1, 2022. Judge Hixson presided over initial pretrial matters, and

Judge Sanchez presided over the remainder of the case.

Jonathan Skrmetti, Attorney General and Reporter; Caroline Weldon, Assistant Attorney

General; Charme P. Allen, District Attorney General; and Ashley McDermott and Franklin

Ammons, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 29, 2021, a Knox County Grand Jury returned a three-count

indictment charging the Defendant with two counts of observation without consent and one

count of assault. Following pretrial motions and evidentiary hearings, the Defendant’s case

proceeded to trial on January 30, 2023.

The victim testified she was eleven years old at the time of the offenses. She

testified that the Defendant was her paternal uncle and that she maintained a very close

relationship with him prior to the offenses, describing him as her “favorite person in the

whole world.” The victim stated that before the offenses, the Defendant frequently visited

her home and that she would occasionally spend the night at his home.

The victim recalled that the Defendant moved into her family’s home, where she

lived with her parents, brothers, and several family pets, approximately one week before

the offenses. While there, the Defendant slept in the living room on a long couch and kept

his belongings in a bag stored in the adjacent kitchen. The victim described the layout of

her living room, noting that a loveseat sat adjacent to the couch on which the Defendant

slept. She estimated the couch and the loveseat were between twelve and eighteen inches

apart and were separated by an end table, which sat in a corner of the living room. The

victim stated the loveseat was pushed against the living room wall, directly in front of a

large window. She also noted that the kitchen was visible from the living room and that

her family “always kept” a light on above the kitchen sink.

The victim testified that on the evening of April 21, 2021, she and her siblings

completed their chores and began playing a game with the Defendant, in which the

Defendant “would pick [them] up with one hand and hold [them] in the air and then drop

[them]” onto the couch. She described this type of interaction between herself and the

Defendant as normal. After concluding their game, the victim and her siblings brushed

their teeth and went to bed. The victim took one of the family’s dogs, Willow, to bed with

her. The victim fell asleep, but around midnight, Willow woke her by barking, “opening

all [her] doors,” and “jumping on [her] bed.” The victim got out of bed and exited her

bedroom, whereupon she saw that the Defendant was also awake. The Defendant walked

down the hallway towards the victim’s bedroom and asked her what was wrong. The

-2-

victim explained Willow’s behavior, and the Defendant put Willow in the bedroom shared

by the victim’s brothers. The victim’s brothers protested, however, so the Defendant

carried Willow downstairs to her kennel.

Afterwards, the Defendant asked the victim if she wanted to sleep on the loveseat

in the living room, and the victim agreed. The victim testified she often slept on the

loveseat and that she did not view the Defendant’s request as odd. The victim returned to

her bedroom and collected a stuffed animal, a pillow, and a blanket, which she then brought

to the living room and used to make a bed for herself on the loveseat. The victim recalled

that she fell asleep on her side, facing the couch. She also noted that she wore a pair of

blue sweatpants to sleep. Because the drawstring had been removed from the waistband

of her sweatpants, the victim “rolled up” the waistband of her sweatpants to her waist.

The victim testified that soon after she fell asleep, she awoke and found that she was

on her back and “facing up” towards the ceiling with her legs straightened. The victim

noted that her blanket had fallen onto the floor and that the sweatpants she wore were pulled

down “a little bit lower than [her] waist,” lower than they had been when she fell asleep.

The victim testified she saw the Defendant standing over her when she awoke. When the

victim asked the Defendant “what happened,” the Defendant responded that he had “heard

something.” The victim accepted this explanation and told the Defendant goodnight. She

retrieved her blanket from the floor, covered herself back up, bent her legs “in towards her

stomach,” and went back to sleep.

Shortly after the victim returned to sleep, she awoke again to find that, as previously,

she had rolled onto her back and was facing the ceiling with her legs straightened. She

testified that her blanket was on the floor and that her sweatpants had been pulled down

slightly lower than they had been the first time. The victim recalled that she again saw the

Defendant and again asked him what he was doing. The Defendant responded that he

thought he “saw something” near the victim and had gone to investigate. The victim

testified that she became frightened. She again retrieved her blanket from the floor,

wrapped it around herself “like a burrito,” curled her legs inwards, and went to sleep.

The victim estimated that approximately five to ten minutes later, she awoke again

to find the Defendant standing over her and her sweatpants “down to where [her] underwear

[was] exposed.” She stated that the Defendant held her ankles in one hand and his cell

phone in the other, which he used to shine a light towards the lower portion of her body.

She testified that the Defendant “ran downstairs” after seeing the victim was awake. The

victim stated she pulled up her sweatpants and ran to her bedroom, leaving her belongings

on the loveseat. She testified that she locked her bedroom door, cried, and eventually went

back to sleep.

-3-

The victim recalled that the Defendant visited her in her bedroom shortly after she

awoke the following morning to bring her candy and the stuffed animal she had left on the

loveseat. She stated the Defendant did not speak to her during this interaction. She

described the Defendant’s behavior during this interaction as odd; although the Defendant

brought her candy daily, it was unusual for him to visit her bedroom to do so. She also

averred that he would normally instruct her to collect any of her belongings she had left

around the house rather than bringing them to her.

The victim testified that later that morning, the Defendant made himself breakfast,

and the victim watched him leave afterwards with the victim’s father to go to work. After

they left, the victim “ran” to find her mother in the bedroom she shared with the victim’s

father. The victim sat on her mother’s bed and told her that the Defendant “tried to pull

[her] pants down last night.” In response, the victim’s mother “jumped up” and began

“looking for her keys.” When she was unable to find her keys, she called the victim’s

father, spoke with him briefly, and then handed her cell phone to the victim, who in turn

told her father what happened. After speaking to her father, the victim returned to her

bedroom, where she remained until the police arrived. She recalled that her father and the

Defendant returned home shortly after she spoke with her father and that the Defendant did

not return inside the house and instead got into his truck, which was parked “on the road

in front of [the] front yard.” She recalled speaking with a detective, a representative from

the Department of Children’s Services (“DCS”), and a forensic interviewer.

On cross-examination, the victim stated that the loveseat on which she slept was

pushed against a window which did not have any blinds or curtains. She explained that

she often slept in short intervals and estimated that approximately twenty minutes had

passed between the time she fell asleep on the loveseat and when she first awoke. She

conceded that she did not know precisely how long she had been asleep but noted that it

was still dark outside.

The victim estimated that her sweatpants were roughly one to two inches below her

waist when she awoke the first time. She reiterated that she pulled her sweatpants up before

going back to sleep but awoke to find they were further down her waist than they had been

when she awoke the first time. She stated that the final time she awoke, her sweatpants

were even further down and were so low that they exposed her underwear.

The victim initially denied that she awoke an additional time, but later conceded

that between the first and second times she found her sweatpants lower on her waist than

they had been when she fell asleep, she woke up to use the restroom at some point between

4:00 a.m. and 5:00 a.m. When she left the living room, she saw the Defendant lying on the

couch, but when she returned, she saw him sitting upright. She told the Defendant

-4-

goodnight, covered herself with her blanket, and went to sleep. She also noted that when

she awoke the final time, it was becoming slightly light outside.

The victim again testified that when she awoke the final time, the Defendant held

both her ankles in one hand and held his cell phone in his other hand, which he used to

shine a flashlight towards her “waist and below.” She stated she gasped when she saw

what the Defendant was doing. She also testified that the Defendant did not touch any part

of her body other than her ankles and that her underwear and shirt were not “disturbed”

when she awoke.

The victim reiterated that she and the Defendant had maintained a close relationship

and that he had never attempted to do anything inappropriate to her before the offenses.

When asked how she felt about no longer being able to see the Defendant, the victim

responded that she “didn’t really feel anything.” She initially denied stating during her

forensic interview that she felt “great” about the Defendant’s not being in her life anymore,

but she conceded she had made the statement after a portion of her forensic interview was

played. She also agreed that she stated during her forensic interview that she only really

“ha[d] a relationship” with her aunt before the offenses.

On redirect examination, the victim testified that although she had to roll the

waistband of her sweatpants up to her waist, they were nevertheless “tight enough that they

wouldn’t fall down.” She also stated that her legs had been straightened by the Defendant’s

holding her ankles when she awoke the final time. She noted that the Defendant was “close

enough to touch” her while he shone his flashlight at her. She testified that she felt afraid

during the encounter. She also stated that she did not consent to the Defendant’s

observation of her body. On recross examination, the victim testified she told both the

investigating officers and her forensic interviewer that the Defendant had used a flashlight.

The victim’s mother testified that the Defendant and the victim’s father worked

together at a construction firm. She stated that the Defendant had previously lived in

McMinn County and spent weekends at her home while he worked on construction projects

with the victim’s father. Eventually, the victim’s parents agreed to rent a room to the

Defendant to make it easier for him to commute to work. The victim’s mother estimated

that the Defendant moved into her home approximately three to four days before the

offenses. She recalled that the Defendant slept on a couch in the living room and kept his

belongings in the dining room.

The victim’s mother described the Defendant’s relationship with the victim prior to

the offenses as “amazing” and stated that the Defendant was “like [the victim’s] best

friend.” She testified that the victim and the Defendant were usually together when the

Defendant was at her family’s home. She averred that she had not seen the victim and the

-5-

Defendant argue or otherwise have any serious disagreements. She described the victim’s

personality as typically “bubbly.”

The victim’s mother testified that on the morning after the offenses, she woke up

and found the victim sleeping beside her in the bed. She stated she awoke and encouraged

the victim to “get up” and eat breakfast, and the victim did so. The victim’s mother

remained in her bed after the victim left her bedroom because she “had a couple of phone

calls to make.” She recalled hearing the victim’s father and the Defendant leave for work

while she was making those phone calls.

Shortly after the victim’s father and the Defendant left for work, the victim reentered

her mother’s bedroom and told her she needed to speak with her. The victim’s mother

described the victim as “really quiet and reserved” and “emotional.” She stated that the

victim told her that on the previous night, while she was lying on the loveseat, the

Defendant “attempted to take her pants off at least two times.” The victim stated she kept

“moving or repositioning herself” and pulling her pants up, but the Defendant eventually

“got her pants off her bottom and around her legs.” The victim’s mother testified she asked

the victim to repeat her story several times to ensure she understood exactly what happened.

The victim’s mother then called the victim’s father and told him that the Defendant “took

[the victim’s] pants off of her last night” and that “he needed to get [the Defendant] back”

home. After speaking with the victim’s father, the victim’s mother called the police.

A recording of the victim’s mother’s 911 call was played for the jury. During her

call, the victim’s mother requested that a police officer visit her home and provided her

address. She explained that the victim had recently reported that she had been “sexually

assaulted” the previous night by her uncle, who the victim’s mother identified as the

Defendant. The victim’s mother stated that while the victim slept on the couch, the

Defendant attempted to pull her pants down on three occasions. She also reported that the

victim attempted to “get in a fetal position,” but the Defendant “kept straightening her legs

out.”

While the victim’s mother waited for the victim’s father and the Defendant to return

home, she instructed her son, the victim’s older brother, to place the Defendant’s

belongings in his truck, which was parked in front of the home. She stated that when the

victim’s father and the Defendant returned home, the Defendant did not attempt to enter

the home and instead walked straight towards his truck.

On cross-examination, the victim’s mother testified that several officers arrived at

her home after she called the police, later followed by detectives and a DCS employee.

She informed the officers of the victim’s allegations and that the victim had been

“emotional that morning.”

-6-

The victim’s older brother testified that at the time of the offenses, he and the

victim’s younger brother shared a bedroom. He stated that the victim had her own

bedroom, that his parents shared a bedroom, and that the Defendant slept on the living

room couch. He estimated that the Defendant had been living with his family for “about

five to six days” before the offenses. The victim’s older brother recalled that he, the

victim’s younger brother, and the victim were occasionally permitted to keep Willow in

their respective bedrooms but averred that she usually slept in her kennel downstairs.

The victim’s older brother testified that on the day after the offenses, he and his

brother woke up and began making breakfast for themselves. He recalled that he saw the

victim once while the victim’s father and the Defendant were preparing to leave for work

and again after they left. He also noted that he could tell the victim had slept on the living

room loveseat the night before because she had left her blanket and pillow on the loveseat

and had rearranged the cushions. After he ate breakfast, the victim’s older brother sat at

the kitchen table and began working on his schoolwork until his mother called him and his

siblings into the living room. He noted that the victim was crying. His mother sent him

and his siblings to his bedroom, where they watched television and continued working on

their schoolwork together.

On cross-examination, the victim’s older brother clarified that while he was in the

kitchen, he watched his father make coffee and noted that the Defendant “just st[ood] there

waiting to get in the truck.” He also noted that he saw the victim briefly enter the kitchen

while the Defendant was present, but that she went back into her bedroom without eating

breakfast.

The victim’s younger brother testified that his family’s relationship with the

Defendant was “really good” prior to the offenses and noted that the victim and the

Defendant “would talk a lot.” The victim’s younger brother stated that he was scared of

the dark at the time of the offenses, so he typically slept with his closet light on and the

door to the bedroom he shared with the victim’s older brother open. He also noted that his

parents would occasionally forget to turn off the light above the kitchen sink before going

to sleep, and that he could see that light from his bed.

The victim’s younger brother recalled that on the night of the offenses, he and his

siblings ate dinner, brushed their teeth, and read together before they went to bed. He

stated that his parents had already gone to bed but that the Defendant was still awake.

Shortly after the victim’s brothers lay down to go to sleep, the Defendant entered their

bedroom and instructed them to close their bedroom door. The victim’s younger brother

found this strange but testified that he or his brother closed the door. He recalled waking

up later that night to hear someone “running down the hallway” and someone “running

-7-

downstairs.” He also stated he heard the victim crying in her bedroom for thirty to forty

minutes.

The victim’s younger brother testified he saw the victim’s father, the Defendant,

and the victim in the kitchen the following morning. He stated that the victim did not speak

to anyone that morning until she returned from their mother’s bedroom with their mother.

The victim’s younger brother also testified that the Defendant and the victim’s father

returned home from work shortly after leaving and noted that the Defendant did not reenter

the home.

On cross-examination, the victim’s younger brother recalled that Willow entered

his bedroom on the night of the offenses and began jumping on his bed. He stated the

Defendant eventually took Willow out of his bedroom and placed her in her kennel.

Afterwards, the Defendant returned to the victim’s brothers’ bedroom and closed the

bedroom door, telling the victim’s brothers “not to open it.” The victim’s younger brother

believed it was still dark outside when he heard the victim crying in her bedroom.

The victim’s father testified that the Defendant was his younger brother and that

they worked together in the family’s construction business. In the course of their work,

the victim’s father and the Defendant occasionally took on jobs that “r[a]n over through

the week,” so the victim’s father permitted the Defendant to stay at his home over the

weekends, where he typically slept on the living room couch. He estimated that the

Defendant moved into his home approximately four days before the offenses.

The victim’s father testified that the Defendant maintained a good relationship with

each of his children, but particularly with the victim. He stated that he and his wife

“routinely” left the victim in the Defendant’s care while they ran errands.

The victim’s father recalled that on the morning after the offenses, he woke up and

found the Defendant was awake, ready to go to work, and not talkative. He described this

as odd, noting that the Defendant was typically “kind of slow” to get ready in the morning

and that he usually took time to play with his niece and nephews. After the victim’s father

made coffee and told his family goodbye, he drove himself and the Defendant to their

jobsite. As they approached the jobsite, the victim’s father received a phone call from his

wife, who asked him if he was alone. The victim’s father stated he was not alone, and his

wife asked him to call her back when he was. His wife called again approximately five

minutes later, and the victim’s father again told her he was not alone.

The victim’s father stated that when he and the Defendant arrived at their jobsite,

the Defendant “hopped straight out” of the vehicle and went to work. The victim’s father

then called his wife, who informed him of the victim’s allegations. The victim’s father

-8-

stated he was “taken aback” and had to “talk[] it through” with his wife for approximately

thirty minutes to determine “exactly what happened.” He recalled that his wife had already

called the police when she informed him of the victim’s allegations.

After speaking with his wife, the victim’s father found the Defendant at the jobsite

and told him they needed to return home. The victim’s father testified the Defendant did

not question this. While the victim’s father drove himself and the Defendant back home,

the victim’s father asked the Defendant, “[w]hat happened last night?” The Defendant

stated he did not know what the victim’s father was talking about, and the victim’s father

informed the Defendant that the police were on their way to their home. The victim’s

father did not believe he provided any details about the victim’s allegations when he spoke

to the Defendant.

The victim’s father recalled that when he and the Defendant returned home, he saw

that the Defendant’s belongings had been placed inside the Defendant’s truck, which was

parked in front of the home. The victim’s father instructed the Defendant to go to his truck

and stay there, and the Defendant did so. The victim’s father then entered the home, locked

the door, and waited for the police to arrive. He stated that the Defendant was still at his

truck when the police arrived and that he remained there while the victim’s father and his

family spoke with the police.

On cross-examination, the victim’s father noted that he also spoke with the victim

during his call with his wife. He testified he waited until he and the Defendant were nearly

home to confront him about the victim’s allegations. He stated that when he asked the

Defendant “what happened between him and [the victim], [the Defendant] denied anything

happened.” The victim’s father testified that he attempted to give the Defendant the

“benefit of the doubt” after hearing the victim’s allegations. He was unsure whether he

asked the Defendant if the victim “had gotten hot in the night.” After reviewing portions

of his statement to the police, however, he agreed that he told the police that the Defendant

had “denied it all” during their ride back home. On redirect examination, the victim’s

father testified he did not “lay anything out” or provide “any details” when asking the

Defendant about what happened between the Defendant and the victim the previous night.

Officer Kristina Kanning of the Knox County Sheriff’s Office (“KCSO”) testified

she responded to the victim’s mother’s 911 call. When Officer Kanning arrived at the

victim’s home, she noticed “somebody” sitting in a truck “with the door open,” who she

later identified as the Defendant. Officer Kanning went into the victim’s home and

interviewed the victim’s mother and the victim. She recalled that another officer, who

arrived soon after she did, entered the home to “check on” Officer Kanning and then went

back outside to speak with the Defendant.

-9-

Video footage taken from Officer Kanning’s body camera depicting both her arrival

at the victim’s home and her subsequent interview with the victim was played for the jury.

During her interview, the victim stated she was awakened the previous night by the family

dog jumping on and off her bed. The victim asked the Defendant to take the dog away; the

Defendant did so and then invited the victim to sleep in the living room. After collecting

her things from her bedroom, the victim went to sleep. The victim recalled that the

Defendant subsequently woke her on three occasions as he attempted to pull her pants

down. She stated that she “curled up” after the first occasion, so the Defendant “would

have to adjust [her] body” if he attempted to pull her pants down again. She stated the

Defendant straightened her legs during his attempts. On the third occasion, the victim

awoke to find her pants were lower than they had been previously. The Defendant “ran

away” after his third attempt, and the victim returned to her bedroom and “started to panic.”

KCSO Officer Bradley Warren testified he also responded to the victim’s mother’s

911 call. When he arrived at the victim’s home, Officer Warren interviewed the Defendant,

and a video recording of the interview taken from his body camera was played for the jury.

During the interview, Officer Warren asked the Defendant what happened the previous

night, to which the Defendant responded, “Apparently, I tried pulling down . . . this kid’s

pants last night.” The Defendant stated the family dog woke the victim and her siblings

around 4:00 a.m., so he took the dog to her kennel downstairs. The Defendant stated the

victim then grabbed “her blankets and stuff” from her bedroom and brought them to the

couch. The Defendant averred that he had been “playing” on his cell phone since 4:30 a.m.

and had not been able to fully go back to sleep since then. He denied that he attempted to

pull the victim’s pants down and stated he did not know what was “going on.”

Kelly Sanders, a forensic interviewer employed at Childhelp Tennessee, testified

that she interviewed the victim on April 21, 2021. Ms. Sanders testified regarding her

qualifications, her employer’s accreditations, the manner in which she typically

interviewed children, and the setup of her interview room. Afterwards, several portions of

the victim’s video-recorded forensic interview were played for the jury.

In her forensic interview, the victim stated that the Defendant took Willow

downstairs after the dog woke the victim, and that he invited the victim to sleep on the

loveseat. The victim agreed and brought her things from her bedroom to the loveseat. She

stated this was not out of the ordinary and that the Defendant had asked her to sleep in the

living room before. She recalled wearing a tank top and sweatpants to sleep. She estimated

that between thirty minutes to an hour after she went to sleep, she awoke to find the

Defendant attempting to pull down her pants. The Defendant explained that he came over

because he “heard something.” The victim repositioned herself and went back to sleep but

awoke soon thereafter to find the Defendant “adjusting [her] body.” The victim stated the

Defendant had positioned her legs so they were straight in front of her and that he again

- 10 -

attempted to pull her pants down. When the Defendant saw the victim was awake, he “said

the same thing” as he had before. The victim stated she then “curled up into a ball,” but

later found the Defendant again attempting to pull her pants down. She stated the

Defendant pulled her pants down the lowest the final time she awoke. The victim recalled

that the Defendant then ran downstairs and that she ran to her bedroom.

In another portion of the victim’s forensic interview, she stated that the Defendant

had come to stay in her family’s home because he “had nowhere else to sleep” and “wanted

to visit his family.” She recalled that he was supposed to stay “a whole week” but was no

longer doing so. The victim also noted that she could clearly see the Defendant’s face

when she awoke because there was a light on in the adjacent kitchen. She stated that the

Defendant visited her bedroom the morning after the offenses to bring her the stuffed

animal she had left on the loveseat and candy.

On cross-examination, Ms. Sanders testified she did not recall the victim’s

mentioning that the Defendant had used a flashlight when he attempted to pull down her

pants.

The State rested. Following a Momon colloquy, the Defendant elected not to testify

and did not present any additional proof. Upon this evidence, the jury convicted the

Defendant as charged. At the Defendant’s sentencing hearing, the trial court imposed a

sentence of two years’ incarceration for each of the Defendant’s convictions of observation

without consent, to run concurrently. The trial court also imposed a sentence of six months’

incarceration for the Defendant’s conviction of assault, which it imposed consecutively.

The Defendant filed a timely but unsuccessful motion for new trial, and this timely appeal

followed.

II. ANALYSIS

On appeal, the Defendant argues (1) the evidence was insufficient to sustain his

convictions, (2) the State committed prosecutorial misconduct by discussing punishment

with the prospective jurors during voir dire, (3) the trial court erred by admitting extrinsic

proof of the victim’s prior consistent statements to rehabilitate her credibility, (4) the trial

court erred by restricting the Defendant’s ability to cross-examine two State’s witnesses,

and (5) the cumulative effect of trial errors entitles him to a new trial. We will address

these issues in turn.

A. SUFFICIENCY

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

his convictions. Specifically, he challenges the victim’s credibility considering his

- 11 -

impeachment of her testimony during direct examination. He further asserts that the State

failed to prove he acted for the purpose of sexual arousal or gratification regarding his

convictions of observation without consent. The State responds that the evidence was

sufficient to sustain each of the Defendant’s convictions. We will address each issue in

turn.

1. STANDARD OF REVIEW

“Findings of guilt in criminal actions . . . shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”

Tenn. R. App. P. 13(e). The standard of appellate review on a challenge to the sufficiency

of the evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original) (citations omitted); see also State v. Williams, 558 S.W.3d 633, 638 (Tenn. 2018).

“A jury conviction removes the presumption of innocence with which a defendant

is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant

has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982); see also State v. Thomas, 687 S.W.3d 223, 249 (Tenn.

2024) (citing State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000)). “On appeal, the

State is entitled to the strongest legitimate view of the evidence and all reasonable and

legitimate inferences which may be drawn therefrom.” State v. Wilson, 211 S.W.3d 714,

718 (Tenn. 2007) (citing State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999)). “We do not

reweigh the evidence . . . because questions regarding witness credibility, the weight to be

given the evidence, and factual issues raised by the evidence are resolved by the jury as the

trier of fact.” State v. Curry, 705 S.W.3d 176, 183 (Tenn. 2025) (citations omitted). The

same standard of review applies “whether the conviction is predicated on direct or

circumstantial evidence, or a combination of both.” Williams, 558 S.W.3d at 638 (citing

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329,

331 (Tenn. 1977)).

2. ASSAULT

First, the Defendant argues the evidence adduced at trial was insufficient to sustain

his conviction of assault. As relevant here, “[a] person commits assault who . . .

[i]ntentionally or knowingly causes physical contact with another and a reasonable person

would regard the contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-

13-101(a)(3).

- 12 -

The Defendant contends that the only proof of his committing any offense came

from the victim’s testimony, which he asserts was unreliable considering his impeachment

of her credibility during cross-examination. He also notes that the victim’s account of

events varied and that her “family members’ testimonies all varied regarding details of the

night and morning in question.” Thus, the Defendant’s arguments may be summed up as

a challenge to the victim’s credibility and to the weight the jury afforded the testimonies

of the witnesses. However, the jury is entrusted with the duty of weighing the evidence

and resolving questions of witness credibility; we do not reweigh the evidence or substitute

our credibility determinations for those reached by the jury on appeal. Curry, 705 S.W.3d

at 183; Dorantes, 331 S.W.3d at 379. Moreover, the Defendant challenged the victim’s

credibility to the jury throughout his extensive cross-examination of the victim. He also

identified certain inconsistencies in her statements through his cross-examination of other

witnesses for the State. The jury heard the Defendant’s attacks on the victim’s credibility

and nevertheless concluded she was a credible witness, as evidenced by its verdict of guilty.

The evidence adduced at trial, when viewed in the light most favorable to the State,

supports that verdict. The proof showed that on the night of the offenses, the Defendant

invited the victim to sleep in the living room after the victim was awakened by the family

dog. The victim agreed and made a bed for herself on the loveseat, while the Defendant

slept on the couch. As the night progressed, the victim repeatedly awoke to find that her

sweatpants had been pulled down and that the Defendant was standing nearby. The final

time she awoke, she found her sweatpants had been pulled down to expose her underwear,

and her legs had been straightened out in front of her. She also found that the Defendant

was standing over her, holding both of her ankles in one hand and shining his cell phone’s

flashlight towards her exposed underwear with his other hand. She testified that she felt

afraid during this encounter. This evidence is sufficient to sustain the Defendant’s

conviction of assault by extremely offensive or provocative contact.

3. OBSERVATION WITHOUT CONSENT

The Defendant also challenges his convictions of observation without consent. As

relevant here,

It is an offense for a person to knowingly spy upon, observe or otherwise

view an individual, when the individual is in a place where there is a

reasonable expectation of privacy, without the prior effective consent of the

individual, if the viewing:

(1) Would offend or embarrass an ordinary person if the person knew the

person was being viewed; and

- 13 -

(2) Was for the purpose of sexual arousal or gratification of the defendant.

Tenn. Code Ann. § 39-13-607(a). A defendant charged under this statute may not raise as

a defense that he or she “was lawfully on the premises where the offense occurred,” and

“[i]f the person being viewed is a minor,” then a defendant commits the offense of

observation without consent “regardless of whether the minor or the minor’s parent or

guardian consented to the viewing.” Tenn. Code Ann. § 39-13-607(b), (c).

The Defendant contends that the State failed to prove he acted for the subjective

purpose of sexual arousal or gratification. Tenn. Code Ann. § 39-13-607(a)(2); see also

State v. Whited, 506 S.W.3d 416, 440 (Tenn. 2016) (noting observation without consent

“explicitly includes the subjective intent of the accused as an element of the offense”). This

court has previously noted that “sexual arousal” and “sexual gratification” are amorphous

terms that evade precise definitions. State v. Morgan, No. E2023-01815-CCA-R3-CD,

2025 WL 1604472, at *5 (Tenn. Crim. App. June 6, 2025) (citing State v. Johnson, No.

W2011-01786-CCA-R3-CD, 2013 WL 501779, at *11 (Tenn. Crim. App. Feb. 7, 2013),

perm. app. denied (Tenn. Aug. 14, 2013)), perm. app. pending. As with other offenses,

there is rarely direct proof of a defendant’s subjective intent, so it must necessarily be

established through circumstantial evidence. State v. Allison, 618 S.W.3d 24, 40 (Tenn.

2021); State v. Hall, 682 S.W.3d 143, 157 (Tenn. 2019). “While, in most cases [requiring

proof of sexual arousal], there is clear evidence that a defendant committing such a crime

was aroused, a trier [of fact] may find this element proven from less obvious evidence,

considering the nature and circumstances surrounding the act itself.” Johnson, 2013 WL

501779, at *11 (collecting cases). “[J]urors may use their common knowledge and

experience in making reasonable inferences from evidence” in determining whether a

defendant acted for the purpose of sexual arousal or gratification. State v. Meeks, 876

S.W.2d 121, 131 (Tenn. Crim. App. 1993); see also Allison, 618 S.W.3d at 40.

The evidence adduced at trial, when viewed in the light most favorable to the State,

showed that on the night of the offenses, the victim awoke repeatedly to find her sweatpants

had been pulled progressively further down from her waist. The first time she awoke, the

victim found that her legs had been straightened, that her blanket had been pushed onto the

floor, and that her pants had been pulled down roughly one to two inches lower than she

typically wore them. She also saw the Defendant “standing over [her].” When the victim

asked what the Defendant was doing, he asserted that he “heard a noise” near the victim

and came over to investigate it. The victim pulled her pants up and went back to sleep.

She then awoke a second time and found that her pants had been pulled down again, slightly

lower than they had been the first time. Her blanket was on the floor, her legs were

straightened, and she was facing the ceiling. The victim again saw the Defendant and asked

what he was doing, and the Defendant provided a similar explanation. The victim grew

frightened, curled up into a ball, and wrapped her blanket around her. When she awoke

- 14 -

the final time, she found that her pants were pulled down to the point that her underwear

was exposed and her legs were straightened. She also found that the Defendant was

standing over her, holding both of her ankles in one hand and shining his cell phone’s

flashlight towards her exposed underwear with his other hand. Upon seeing that the victim

was awake, the Defendant ran downstairs.

From this proof, a reasonable juror could have concluded that the Defendant

removed the victim’s blanket, pulled her sweatpants down to expose her underwear,

straightened her legs, held her ankles, and shone his flashlight towards her exposed

underwear. The offensive and embarrassing nature of the Defendant’s observation of the

victim, his removal of her clothing, his use of a flashlight to better view her, his holding

her ankles, and the repetitive nature of his conduct constitute sufficient circumstantial

evidence from which a reasonable juror could have concluded the Defendant acted for the

purpose of sexual arousal or gratification. Therefore, the evidence is also sufficient to

sustain the Defendant’s convictions of observation without consent.

B. PROSECUTORIAL MISCONDUCT

The Defendant also contends that the State committed prosecutorial misconduct by

discussing punishment with the prospective jurors during voir dire. Specifically, he alleges

that the prosecutor violated Tennessee Code Annotated section 40-35-201(b)’s prohibition

on commenting on possible penalties for charged offenses by stating the Defendant would

not “be punished twice.” The State responds that this claim is waived for the Defendant’s

failure to raise it via contemporaneous objection at trial and that the Defendant is not

entitled to plain error relief.

As the State notes, the Defendant failed to raise his claim of prosecutorial

misconduct via a contemporaneous objection, so the claim is waived. 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 State v. Jordan, 325 S.W.3d 1,

57-58 (Tenn. 2010) (“A contemporaneous objection provides the trial court with an

opportunity to assess the State’s [closing] argument and to caution the prosecution and

issue a curative instruction to the jury if necessary.”). The Defendant concedes that he did

not raise a contemporaneous objection during voir dire but nevertheless insists he is entitled

to plenary review of his claim of prosecutorial misconduct because he raised it in his

motion for new trial and the trial court ruled upon it.

The Defendant’s argument for plenary review, however, was squarely addressed

and rejected by the Tennessee Supreme Court in State v. Enix, 653 S.W.3d 692 (Tenn.

2022). In that case, the defendant argued he was entitled to plenary review of his claim of

- 15 -

prosecutorial misconduct during closing arguments because he raised it in his motion for

new trial, despite his failure to contemporaneously object at trial. Id. at 699-701. The

defendant in Enix based this argument upon the Tennessee Supreme Court’s holding in

State v. Hawkins, 519 S.W.3d 1 (Tenn. 2017), in which the Court, “without citation to

authority or any discussion of intentionally overruling long-standing Tennessee case law,”

Enix, 653 S.W.3d at 700, elected to apply plenary review to the defendant’s claims of

prosecutorial misconduct during closing arguments, which the defendant presented for the

first time in his motion for new trial. Hawkins, 519 S.W.3d at 48. The defendant in Enix

argued that this precedent entitled him to plenary review of his claims, but the Tennessee

Supreme Court disagreed and held “that plain error review is the appropriate standard of

review to apply to claims of alleged prosecutorial misconduct during closing argument

when no contemporaneous objection was lodged at the time of the alleged misconduct but

the claim is raised in the motion for a new trial.” Enix, 653 S.W.3d at 700-01. The

Tennessee Supreme Court also explicitly overruled Hawkins to the extent it was

inconsistent with that ruling. Id. at 701.

In this case, the Defendant does not argue that Enix is, for some reason, inapplicable

to his claim of prosecutorial misconduct during voir dire, and we do not believe that such

an argument would be consistent with the Tennessee Supreme Court’s precedent. See State

v. Vance, 596 S.W.3d 229, 254 (Tenn. 2020) (“[T]he trial court’s denial of relief on the

[d]efendant’s motion for new trial does not serve to alleviate the consequences of the

[d]efendant’s failure to timely object at trial.”). In fact, this court has recently applied Enix

in the context of addressing a claim of prosecutorial misconduct during voir dire which

was not first raised via a contemporaneous objection and concluded that the appropriate

standard of review was plain error, not plenary review. See State v. Sliger, No. E2024-

00508-CCA-R3-CD, 2025 WL 1263096, at *8 (Tenn. Crim. App. Apr. 30, 2025), perm.

app. denied (Tenn. Sept. 10, 2025). Accordingly, the appropriate standard of review for

the Defendant’s claim of prosecutorial misconduct is plain error.

A defendant may only receive relief under plain error review if he or she proves

all five of the following prerequisites:

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

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

right of the accused must have been violated; (4) the accused must not have

waived the issue for tactical reasons; and (5) consideration of the error is

necessary to achieve substantial justice.

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

492, 504 (Tenn. 2016)). If a defendant fails to prove any one of the five plain error factors,

then they are not entitled to plain error relief, and the appellate court is not required to

- 16 -

analyze the remaining factors. State v. Bledsoe, 226 S.W.3d 349, 358 (Tenn. 2007). To

qualify as plain error, “[t]he magnitude of the error must have been so significant that it

probably changed the outcome of the trial.” Id. at 354 (quoting State v. Adkisson, 899

S.W.2d 626, 642 (Tenn. Crim. App. 1994) (internal quotation marks omitted)); see also

Tenn. R. App. P. 36(b).

Both the United States Constitution and the Tennessee Constitution protect a

criminal defendant’s right to trial by an impartial jury. See U.S. Const. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed[.]”);

Tenn. Const. art. I, § 9 (providing “[t]hat in all criminal prosecutions, the accused hath the

right to . . . a speedy public trial, by an impartial jury of the County in which the crime

shall have been committed[.]”). Voir dire exists to protect a defendant’s right to trial by

an impartial jury by ensuring the jurors selected for trial are competent and unbiased. State

v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993). During voir dire, the trial court must “permit

counsel to introduce themselves and make brief, non-argumentative remarks that inform

the potential jurors of the general nature of the case.” Tenn. R. Crim. P. 24(a)(2).

The State may commit prosecutorial misconduct during arguments or voir dire by

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

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

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

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

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

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

knowledge.

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

(Tenn. Crim. App. 2003)); Sliger, 2025 WL 1263096, at *8. Our analysis of whether a

challenged portion of the State’s comments constituted prosecutorial misconduct and

prejudiced a defendant’s trial is guided by the following factors:

(1) the conduct at issue in light of the facts and circumstances of the case, (2)

the curative measures undertaken by the trial court and the prosecution, (3)

the intent of the prosecutor in making the improper argument, (4) the

cumulative effect of the improper argument and any other errors in the

record, and (5) the relative strengths and weaknesses of the case.

State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008); see also Judge v. State, 539 S.W.2d 340,

344 (Tenn. Crim. App. 1976). “[P]rosecutorial misconduct does not amount to reversible

- 17 -

error absent a showing that it has affected the outcome of the case to the prejudice of the

defendant.” State v. Reid, 164 S.W.3d 286, 321 (Tenn. 2005) (citing State v. Chalmers, 28

S.W.3d 913, 917 (Tenn. 2000)).

The Defendant challenges the following statement made by the prosecutor during

voir dire while discussing the elements of the Defendant’s charges of observation without

consent:

So[,] for this one, the first count of observation without consent, the word

that’s underlined up here is “offend.” The second count is the exact same

thing, but with one word different, and that’s the word “embarrass,” okay.

And so[,] we are going to ask you all to find the [D]efendant guilty of both

of those offenses.

He’s not going to be punished twice, okay.2 But there are two

alternative theories that if the jury finds these elements are met, then we’re

going to ask you to find him guilty.

So[,] we’re going to ask you to find him guilty of two offenses that

have to do with observation without consent. One “offend” and one

“embarrass.” And again, he’s not going to be punished twice. Does

everybody understand that?

The Defendant asserts that by informing the prospective jurors that the Defendant

would not “be punished twice,” the prosecutor violated Tennessee Code Annotated section

40-35-201(b), which provides that “[i]n all contested criminal cases, except for capital

crimes . . . the judge shall not instruct the jury, nor shall the attorneys be permitted to

comment at any time to the jury, on possible penalties for the offense charged nor all lesser

included offenses.” The Defendant likens the prosecutor’s statements in this case to those

made during closing arguments in State v. Lockhart, No. W2018-00051-CCA-R3-CD,

2019 WL 1753056, at *11 (Tenn. Crim. App. Apr. 17, 2019), perm. app. denied (Tenn.

Aug. 20, 2019). In that case, this court concluded that the prosecutor’s discussion of the

doctrine of merger with the jury violated Code section 40-35-201(b) because “the merger

of offenses also implicates sentencing concerns.” Id. (citing State v. Pamblanco, No. 2015-

01870-CCA-R3-CD, 2016 WL 6958888, at *8 (Tenn. Crim. App. Nov. 29, 2016), perm.

app. denied (Tenn. Apr. 12, 2017)). The State responds that the comments did not go so

far as those found improper in Lockhart because the prosecutor did not specifically mention

merger, double jeopardy, or sentencing options.

2

We have identified the statements the Defendant specifically challenges in italics.

- 18 -

We agree with the Defendant that the prosecutor’s informing the jury that the

Defendant would not “be punished twice” violated Tennessee Code Annotated section 40-

35-201(b). However, we cannot say this error affects any of the Defendant’s substantial

rights such that he would be entitled to plain error relief in light of the sufficiency of the

convicting evidence. The jury was presented with proof that the Defendant awoke the

victim three times as he attempted to pull down her sweatpants. The final time the victim

awoke, she found the Defendant holding her ankles in one hand to straighten her legs out

in front of her and using his other hand to shine a flashlight towards her exposed underwear.

The victim fled from the Defendant, began crying in her bedroom, and testified that her

“world just broke” afterwards. This evidence was sufficient to sustain the Defendant’s

convictions of observation without consent, even considering the prosecutor’s improper

comments. The Defendant is not entitled to plain error relief on this issue.

C. PRIOR CONSISTENT STATEMENTS

Next, the Defendant challenges the trial court’s admission of three prior consistent

statements offered to rehabilitate the victim’s credibility. The Defendant contends that the

victim’s credibility was not sufficiently impeached on cross-examination to warrant the

introduction of her prior consistent statements. He also asserts that the statements were

inadmissible because they were not, in fact, consistent with the victim’s direct examination

testimony. Finally, he argues the trial court erred by failing to issue a limiting instruction

to the jury for each prior consistent statement. The State responds that the trial court’s

admission of the victim’s prior consistent statements was proper and that its limiting

instruction was sufficient.

Hearsay statements are those “statement[s], other than one[s] made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). Generally, hearsay statements are inadmissible, Tenn.

R. Evid. 802, unless they fall into one of the exceptions listed in Tennessee Rules of

Evidence 803 and 804. “If a statement is hearsay, but does not fit one of the exceptions, it

is inadmissible, and the [trial] court must exclude the statement.” State v. Kendrick, 454

S.W.3d 450, 479 (Tenn. 2015). When considering whether a statement is inadmissible

hearsay, the trial court must first determine whether the statement constitutes hearsay; if

so, it must then determine whether the statement qualifies as an exception to the rule against

hearsay. Id.

An appellate court’s standard of review of a trial court’s ruling on hearsay evidence

is layered. Id. A trial court’s findings of fact and credibility determinations are binding

upon the appellate court unless the evidence preponderates against them. Id. (citing State

v. Gilley, 279 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). A trial court’s conclusions

of law as to whether the challenged statement is hearsay and whether it qualifies as an

- 19 -

exception to the rule against hearsay are reviewed de novo. Kendrick, 454 S.W.3d at 479

(first citing State v Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); and then

citing Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)). However, simply

because a statement qualifies as an exception to the rule against hearsay does not mean that

the trial court must admit the statement; in other words, the statement may nevertheless

violate other rules of evidence. Kendrick, 454 S.W.3d at 479 (citing Gilley, 297 S.W.3d at

760-61). When the trial court concludes that a statement is inadmissible under another rule

of evidence, then the appellate courts review the trial court’s decision for abuse of

discretion. State v. Howard, 504 S.W.3d 260, 276 (Tenn. 2016) (citing State v. Herron,

461 S.W.3d 890, 904 (Tenn. 2015)).

Prior consistent statements are hearsay statements “if offered for the truth of the

matter asserted therein.” State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980).

Generally, prior consistent statements are inadmissible for the purpose of rehabilitating a

witness’s credibility, except under certain exceptions. Id. As applicable to this case, prior

consistent statements may be admissible to rehabilitate a witness’s credibility when that

credibility has been “attacked on cross-examination as ‘recent fabrication’ or ‘deliberate

falsehood.’” Herron, 461 S.W.3d at 905 (citing State v. Benton, 759 S.W.2d 427, 433

(Tenn. Crim. App. 1988)). As a prerequisite to admissibility, however, the witness’s

credibility must have “been assailed or seriously questioned to the extent that the

witness’[s] credibility needs shoring up.” Herron, 461 S.W.3d at 905 (citing Benton, 759

S.W.2d at 433-34). This exception authorizes the admission of a witness’s prior consistent

statement for the limited purpose of rehabilitating a witness’s credibility, but not as

substantive evidence. Herron, 461 S.W.3d at 905. We afford the trial court “wide latitude”

in determining whether a witness’s credibility has sufficiently been called into question to

justify the introduction of a prior consistent statement to rehabilitate that credibility. State

v. Gossett, No. W2013-01120-CCA-R3-CD, 2014 WL 6609353, at *6 (Tenn. Crim. App.

Nov. 21, 2014) (citing State v. Neese, No. M2005-00752-CCA-R3-CD, 2006 WL 3831387,

at *6 (Tenn. Crim. App. Dec. 15, 2006), perm. app. denied (Tenn. Apr. 23, 2007)), no

perm. app. filed.

At trial, the victim testified she and the Defendant had a very close relationship prior

to the offenses, that the Defendant was her “favorite person in the world,” that the

Defendant frequently visited her family’s home, and that she often spent the night at his

home. She stated that when the offenses occurred, her “world just broke.” On cross-

examination, the victim reiterated that she had a close relationship with the Defendant and

testified that she “didn’t really feel anything” about no longer being able to see the

Defendant. The Defendant then impeached the victim by introducing a portion of her

forensic interview as prior inconsistent statements in which she stated that she only really

“ha[d] a relationship with her aunt” and that she felt “great” about the Defendant’s not

being in her life anymore.

- 20 -

The State then called the victim’s mother to testify and asked her what the victim

told her about the morning after the offenses. The Defendant objected on hearsay grounds,

and the trial court held a bench conference. The State responded to the Defendant’s hearsay

argument by contending that the victim’s credibility had been sufficiently impeached on

cross-examination to permit the admission of prior consistent statements to rehabilitate her

credibility. Following arguments, the trial court held that the proposed testimony was

admissible for “that limited purpose.”

Similarly, when the State sought to ask Officer Kanning what the victim told her

during their interview, the Defendant objected on hearsay grounds, and the trial court held

a bench conference. The State reiterated that the victim “had her credibility attacked and

at this point the witnesses are allowed to testify to prior consistent statements.” The trial

court overruled the Defendant’s objection.

Finally, during its direct examination of Ms. Sanders, the forensic interviewer, the

State sought to introduce a portion of the victim’s forensic interview in which the victim

recounted her allegations against the Defendant. The Defendant again raised his

“[s]tanding objection” to the introduction of prior consistent statements, which the trial

court overruled. After the recordings of the victim’s forensic interview were played for the

jury, the State requested, during another bench conference, that the trial court issue a

limiting instruction to the jury to consider the prior consistent statements for the limited

purpose of assessing the victim’s credibility rather than for substantive evidence. The trial

court did so.

The Defendant argues that the trial court erred by admitting the victim’s prior

consistent statements because they exceeded the scope of rehabilitation necessitated by the

defendant’s impeachment of the victim’s credibility. He likens this case to State v.

Livingston, 907 S.W.2d 392 (Tenn. 1995), in which the Tennessee Supreme Court held the

admission of a victim’s prior consistent statements was improper because her credibility

was only “mildly questioned on cross-examination through questions concerning her

disagreements with the defendant.” Id. at 398. The Defendant contends that he, similarly,

“only mildly questioned on cross-examination [the victim’s] credibility regarding her

statements about her feelings about the [Defendant].” This argument is not supported by

the record. While to be sure, the Defendant cross-examined the victim regarding her

feelings about the Defendant and introduced her prior inconsistent statement regarding

their relationship, the Defendant also extensively questioned the victim about the sequence

of the events she described, placing particular emphasis on the number of times she had

woken up. Initially, the victim denied that she awoke more times than she had described

during direct examination, and the Defendant requested a bench conference to discuss the

admissibility of her statement to law enforcement that she awoke four times on the basis

- 21 -

that it was a prior inconsistent statement. After that hearing, the Defendant again asked

the victim if she awoke an additional time, and the victim conceded that she did. Although

the Defendant was unable to introduce extrinsic proof of the victim’s prior inconsistent

statement, an “impeaching attack on the witness’s credibility need not be successful in

order to admit the prior consistent statement.” Gossett, 2014 WL 6609353, at *6 (citing

Neese, 2006 WL 3831387, at *6). Moreover, the implication the Defendant sought to be

drawn through his impeachment of the victim’s testimony regarding her relationship with

the Defendant and her feelings following the offense was that the victim had fabricated her

allegations against the Defendant, and the State was permitted to rebut that implication of

a deliberate falsehood by rehabilitating the victim’s credibility. Herron, 461 S.W.3d at

905. Accordingly, the trial court did not abuse its discretion in determining that the

victim’s credibility was sufficiently called into question to warrant the introduction of her

prior consistent statements.

The Defendant also asserts that the prior statements were not, in fact, consistent with

the victim’s testimony on direct examination. He notes that the victim testified that the

final time she awoke, she saw the Defendant shining a flashlight at her exposed underwear;

however, she did not mention this fact in any of her statements to the victim’s mother,

Officer Kanning, or Ms. Sanders. The victim testified that on the night of the offenses, she

repeatedly awoke to find that her sweatpants were down lower than they had been when

she fell asleep; when she awoke the final time, she found that her sweatpants were down

low enough to expose her underwear, that the Defendant was holding her ankles so that her

legs were straightened in front of her, and that the Defendant shined a flashlight towards

her exposed underwear. Her statements to her mother, Officer Kanning, and Ms. Sanders,

though omitting the detail about the Defendant’s use of a flashlight, were consistent with

that testimony and were thus admissible as prior consistent statements. See State v.

Fitzpatrick, No. M2012-00186-CCA-R3-CD, 2013 WL 215206, at *10 (Tenn. Crim. App.

May 20, 2013) (concluding that while “the victim’s direct examination testimony regarding

the date of the crime was inconsistent with her prior statements . . . regarding the date,”

“the remainder of her prior statements . . . were highly consistent with her trial testimony”

and were admissible in light of the defense’s cross-examination attacks on the victim’s

credibility), perm. app. denied (Tenn. Nov. 18, 2013). Accordingly, the trial court did not

abuse its discretion in concluding that the statements were consistent with the victim’s trial

testimony.

Finally, the Defendant contends that the trial court erred by failing to instruct the

jury to consider each of the victim’s prior consistent statements for the limited purpose of

evaluating the victim’s credibility and not as substantive evidence. While he concedes that

the trial court issued such an instruction following the introduction of the victim’s prior

consistent statement to Ms. Sanders at the State’s request, he nevertheless asserts that the

- 22 -

trial court erred by failing to issue limiting instructions for each prior consistent statement

sua sponte.

When a prior consistent statement is admitted to rehabilitate a witness’s credibility,

the trial court should, upon request, issue a limiting instruction to the jury that the prior

consistent statement is not to be considered for the truth of the matter asserted therein.

Tenn. R. Evid. 105; Herron, 461 S.W.3d at 905; State v. Ward, No. M2017-02269-CCA-

R3-CD, 2019 WL 1436151, at *23 (Tenn. Crim. App. Apr. 1, 2019), perm. app. denied

(Tenn. July 18, 2019). However, the Defendant failed to request any limiting instruction

at trial. As this court has repeatedly held, a defendant who fails to request that the trial

court instruct the jury as to the limited admissibility of a prior consistent statement waives

appellate review of that issue. See, e.g., State v. Robinson, 971 S.W.2d 30, 43 (Tenn. Crim.

App. 1997); State v. Cianfarani, No. M2022-01200-CCA-R3-CD, 2023 WL 6534236, at

*14 (Tenn. Crim. App. Oct. 6, 2023), perm. app. denied (Tenn. Mar. 6, 2024); State v.

Sherrod, No. W2015-02022-CCA-R3-CD, 2017 WL 1907723, *11 (Tenn. Crim. App.

May 9, 2017), perm. app. denied (Tenn. Sept. 22, 2017).

Regardless, we note that the jury was, in fact, instructed as to the limited

admissibility of two of the victim’s prior consistent statements. As the Defendant

concedes, the trial court issued a contemporaneous limiting instruction following the

introduction of the victim’s forensic interview as a prior consistent statement.

Additionally, during deliberations, the jury returned a question asking where it could find

and review Officer Kanning’s video-recorded interview with the victim. The trial court

responded to this question by instructing the jury that the interview was introduced as a

prior consistent statement that “is not admissible as substantive evidenc[e] for the jury to

have during deliberations. The purpose of a prior consistent statement is to attempt to

rehabilitate the alleged victim’s credibility when it has been challenged and should not be

considered by the jury for any other purpose.” Thus, the jury received limiting instructions

for two of the challenged prior consistent statements, and the jury is presumed to follow

the trial court’s instructions. State v. Jordan, 325 S.W.3d 1, 66 (Tenn. 2010) (citing State

v. Young, 196 S.W.3d 85, 111 (Tenn. 2006)). Although no limiting instruction was

provided regarding the presentation of the victim’s prior consistent statement through the

victim’s mother’s testimony, the Defendant waived any claim of error on appeal by failing

to request it. The Defendant is not entitled to relief on this issue.

D. RESTRICTION OF CROSS-EXAMINATION

The Defendant also argues the trial court erred by restricting his ability to cross-

examine two of the State’s witnesses: the victim and the victim’s father. At trial, the

Defendant sought to question the victim on cross-examination regarding her prior

accusations of abuse against someone other than the Defendant, arguing that her responses

- 23 -

would be relevant to show that the victim had fabricated her allegations against the

Defendant and to impeach her credibility. He also sought to question the victim’s father

regarding a recent criminal charge of theft to impeach his credibility. The trial court denied

both requests. On appeal, the Defendant contends that the trial court’s restriction of his

cross-examination of the victim violated his constitutional right to present a defense and

Tennessee Rule of Evidence 616. He also argues that the trial court’s restriction of his

cross-examination of the victim’s father violated the Defendant’s constitutional right to

confront the witnesses against him. The State responds that the trial court properly

restricted the scope of the Defendant’s cross-examination as to each witness. We will

address each issue in turn.

1. STANDARD OF REVIEW

Both the United States Constitution and the Tennessee Constitution guarantee a

criminal defendant the right to confront the witnesses against him or her at trial. U.S.

Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein the crime shall

have been committed… and… to be confronted with the witnesses against him.”); Tenn.

Const. art. I, § 9 (providing “[t]hat in all criminal prosecutions, the accused hath the right

. . . to meet the witnesses face to face.”). These guarantees protect a criminal defendant’s

right to face the witnesses in court and to cross-examine them. State v. Brown, 29 S.W.3d

427, 430-31 (Tenn. 2000) (first citing Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); and

then citing State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992)).

However, a criminal defendant’s right to cross-examine witnesses is not unlimited.

See State v. Davis, 466 S.W.3d 49, 68 (Tenn. 2015) (“‘[T]he Confrontation Clause

guarantees only an opportunity for effective cross-examination, not cross-examination that

is effective in whatever way, and to whatever extent, the defense might wish.’”) (quoting

United States v. Owens, 484 U.S. 554, 559 (1988)). The trial court may impose reasonable

restrictions on the scope of cross-examination to limit problems of “harassment, prejudice,

issue confusion, witness safety, or merely repetitive or marginally relevant interrogation.”

State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994); see also State v. Dishman,

915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). “Absent a clear abuse of discretion that

results in manifest prejudice to the defendant, this court will not interfere with the trial

court’s exercise of its discretion on matters pertaining to the examination of witnesses.”

State v. Hardison, 680 S.W.3d 282, 315 (Tenn. Crim. App. 2023) (citing State v. Johnson,

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

2. THE VICTIM

- 24 -

The Defendant contends the trial court erred in denying his request to cross-examine

the victim regarding her prior accusations of abuse. At trial, the Defendant sought to

introduce a portion of the victim’s forensic interview in which she discussed having been

previously sexually assaulted by someone other than the Defendant and noted that the

individual was no longer permitted to see her. The Defendant contends that this evidence

was crucial to his defense that the victim fabricated her allegations against the Defendant

to prevent him from permanently moving into her home, and that its exclusion prevented

him from presenting his defense. He also asserts that he was entitled to present this

evidence to impeach the victim’s credibility pursuant to Tennessee Rule of Evidence 616.

The State responds that the trial court properly restricted cross-examination because the

evidence was irrelevant and was not crucial to the Defendant’s defense.

The United States Constitution guarantees a criminal defendant a meaningful

opportunity to present a complete defense through both the Sixth Amendment and the Due

Process Clause of the Fourteenth Amendment. Crane v. Kentucky, 476 U.S. 683 (1986)

(citing California v. Trombetta, 467 U.S. 479, 485 (1984)); Brown, 29 S.W.3d at 432. This

protection includes “[t]he right to offer the testimony of witnesses” and “the right to present

the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide

where the truth lies.” Washington v. Texas, 388 U.S. 14, 19 (1967); see also State v. Flood,

219 S.W.3d 307, 316 (Tenn. 2007). This right, however, is not absolute; the criminal

defendant, as well as the State, “must comply with established rules of procedure and

evidence,” which are designed to “assure fairness and reliability in the criminal trial

process.” Flood, 219 S.W.3d at 316 (quoting Chambers v. Mississippi, 410 U.S. 284, 302

(1973) (internal quotation marks omitted)). “So long as the rules of procedure and evidence

are not applied arbitrarily or disproportionately to defeat the purposes they are designed to

serve, these rules do not violate a defendant’s right to present a defense.” Flood, 219

S.W.3d at 316 (citing United States v. Scheffer, 523 U.S. 303, 308 (1998)).

Evidence is relevant when it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Tenn. R. Evid. 401. Evidence which is not relevant

is inadmissible, and “[a]ll relevant evidence is admissible except as provided by the

Constitution of the United States, the Constitution of Tennessee,” the Tennessee Rules of

Evidence, or “other rules or laws of general application in the courts of Tennessee.” Tenn.

R. Evid. 402. Further, “evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence,” even if it is otherwise relevant. Tenn. R. Evid. 403.

Generally, a trial court’s ruling on the admission of evidence based upon relevance

will not be reversed unless the trial court abused its discretion. See State v. Gomez, 367

- 25 -

S.W.3d 237, 243 (Tenn. 2012); State v. DuBose, 953 S.W.2d 649, 652-53 (Tenn. 1997);

see also State v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006). Under that standard

of review, we will reverse the trial court’s decision “only when the court applied an

incorrect legal standard, or reached a decision which is against logic or reasoning” and the

admission of the evidence “caused an injustice to the party complaining.” State v.

Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000) (internal quotation marks omitted) (quoting

State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). However, the trial court’s erroneous

exclusion of evidence may be constitutional error if it “thwarts a criminal defendant’s right

to present a defense.” State v. Bell, 512 S.W.3d 167, 190; Brown, 29 S.W.3d at 436. In

consideration of a defendant’s assertion of violation of his or her right to present a defense,

we consider “(1) whether the evidence is critical to the defense, (2) whether it bears

sufficient indicia of reliability, and (3) whether the interest supporting exclusion is

substantially important.” Rimmer, 623 S.W.3d at 279 (citing Brown, 29 S.W.3d at 433-

34).

The record indicates that the Defendant filed a pretrial motion to compel the State

to disclose any evidence in its possession pursuant to Brady v. Maryland, 373 U.S. 83

(1963), regarding the victim’s prior accusations of sexual assault. The State opposed this

motion, and the trial court held a hearing on February 22, 2022. At the hearing, the

Defendant contended that the victim had previously reported suffering two prior instances

of abuse and that one instance occurred in Kentucky. The Defendant requested that the

trial court compel the State to procure any materials documenting the victim’s allegations.

The State responded that it had filed a motion in opposition to the Defendant’s request in

which it argued such evidence would be inadmissible pursuant to Tennessee Rule of

Evidence 412 and Tennessee Code Annotated section 24-7-125.

The State conceded that after the victim reported the offenses in this case, a DCS

employee interviewed the victim and her family and included in a subsequent report that

the victim’s parents “sa[id] a sentence or two about this incident that happened in

Kentucky.” The Defendant also noted that the victim described having been previously

assaulted during her forensic interview. The Defendant argued that any additional

documentation of the victim’s prior accusations could be relevant to the jury’s

determination of “the credibility and motivation of the people in this case.”

Following arguments, the trial court denied the Defendant’s Brady motion,

concluding it was unable to compel the Commonwealth of Kentucky to disclose any

additional documentation of its reports of the victim’s prior allegations. However, the trial

court held the State’s motion to exclude any proof of the victim’s prior allegations under

Tennessee Rule of Evidence 412 and Tennessee Code Annotated section 24-7-125 in

abeyance “until we know more about this situation.”

- 26 -

At trial, the Defendant asked the victim during cross-examination, “Before these

incidents back in April 2021, had someone else ever hurt you?” The State objected, arguing

the Defendant’s proposed line of questioning regarding previous abuse was inadmissible

under Tennessee Rules of Evidence 404(b) and 412. The Defendant responded that the

proposed testimony was admissible “under several different avenues,” including as proof

of the victim’s “state of mind, knowledge of sexual acts, [and] motive.” The Defendant

argued that Tennessee Rule of Evidence 412 did not exclude the proposed testimony

because that rule specifically lists the sexual offenses to which it applies and does not

include observation without consent. The following exchange then occurred:

THE COURT: Okay. What’s the proffer of what – if the victim did answer

in the affirmative, what is the proffer?

THE DEFENDANT: Judge, it was literally going to be two questions: Has

anyone ever – essentially, have you ever been sexually assaulted before?

Yes. And were you able – as a result, those people weren’t allowed to see

you anymore? Yes. . . . I was not planning on going into the details. If she

said no, then we would have an impeachment issue because she discusses

that it happened during her interviews. But if she had answered in the

affirmative, it would have been two questions.

The Defendant further argued that the line of questioning would have been admissible to

impeach the victim pursuant to Tennessee Rule of Evidence 616. The State responded that

the Defendant’s proposed questions were irrelevant and “violate[d] the purpose of Rule

412.”

Following arguments, the trial court denied the Defendant’s request to cross-

examine the victim regarding her prior accusations:

The [c]ourt has considered the request from both parties. What we

have outstanding to deal with is the defense is attempting to get in prior

allegations that the victim had made about sexual abuse from an episode that

was separate and apart from the case that is now on trial.

The [c]ourt has considered that and really what the [c]ourt does find

is that although [Rule] 412 does not contemplate this particular offense of

observation without consent, I think the State does bring a good point that

it’s – what you’re supposed to do is bring this up before trial, particularly if

Judge Hixson had ruled on this.

- 27 -

To be surprised in court and to be asked that question was certainly

alarming to the [c]ourt. So under [R]ule 401, I’m not even going to look at

analysis under [Rule] 412. Under Rule 401[,] first we need to determine

whether or not it’s relevant.

The [c]ourt cannot determine that any sort of sexual allegations that

the victim has made in the past are not [sic] relevant to this proceeding. Even

if they were, pursuant to Rule 403, they would be excluded because the

probative value would be significantly, substantially outweighed by the

danger of unfair prejudice to the victim in this case.

So with respect to that line of questioning, the [c]ourt’s ordering that

that is not to be asked of the victim and that is not to come in in this trial.

Although the Defendant argues on appeal that the trial court’s restriction of his

cross-examination of the victim denied him a fair trial by preventing him a meaningful

opportunity to present a complete defense, he made no constitutional claim at trial or in his

motion for new trial; instead, he argued for the evidence’s admissibility pursuant to the

Tennessee Rules of Evidence. Consequently, the Defendant’s constitutional claim of error

is waived. See Tenn. R. App. P. 3(e) (Provided, however, that in all cases tried by a jury,

no issue presented for review shall be predicated upon error in the admission or exclusion

of evidence . . . unless the same was specifically stated in a motion for a new trial[.]”);

State v. Rowland, 520 S.W.3d 542, 545 (Tenn. 2017) (“Generally, issues raised for the first

time on appeal are waived.”); see also State v. Robinson, No. M2019-00303-CCA-R3-CD,

2020 WL 1923152, at *45 (Tenn. Crim. App. Apr. 21, 2020) (holding that the defendant’s

challenge to the trial court’s exclusion of evidence based on his “due process right to

present a defense” was not waived because the defendant “did not make a constitutional

claim” in the trial court), perm. app. denied (Tenn. Aug. 7, 2020). Moreover, it is well

settled that “‘a party may not take one position regarding an issue in the trial court, change

his strategy or position in mid-stream, and advocate a different ground or reason’ on

appeal.” State v. Hardison, 680 S.W.3d 282, 309 (Tenn. Crim. App. 2023) (quoting State

v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1998)).

Accordingly, we will address the victim’s argument that he should have been

permitted to present proof of the victim’s prior accusations of abuse pursuant to Tennessee

Rule of Evidence 616 because it was relevant to show her motive and bias against the

Defendant. Tennessee Rule of Evidence 616 provides that “[a] party may offer evidence

by cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or

prejudiced against a party or another witness.”

- 28 -

The Defendant’s theory of the case was that the victim was an untrustworthy

witness. He extensively cross-examined her and impeached her credibility on several

grounds, including her relationship with the Defendant. He also sought to argue that the

victim did not want the Defendant to move into her home. As part of this argument, he

sought to ask the victim whether she had previously been sexually abused and, if so,

whether the perpetrator of that abuse was permitted to see her. Knowing the victim had

previously said as much during her forensic interview, the Defendant intended to present a

theory to the jury that the victim, knowing from a previous experience that accusing

someone of improper behavior resulted in their no longer being permitted to be near the

victim, fabricated her allegations against the Defendant to ensure he was not permitted to

move into her home. In other words, the Defendant contended at trial, and reiterates on

appeal, that the proposed testimony would have been relevant to prove the victim’s motive

to lie and, by extension, as an additional means of attacking her credibility, pursuant to

Tennessee Rule of Evidence 616.

We disagree. Although evidence may, arguably, be helpful to impeach a witness, it

must nevertheless still be admissible. See Gomez, 367 S.W.3d at 248 (“A party may not

introduce a subject that is inadmissible to attack the credibility of a witness.”); Hatchett v.

State, 552 S.W.2d 414, 415 (Tenn. 1977) (“The State cannot ask a witness an irrelevant

but prejudicial question, and then, under the theory of impeachment, predicate a second

irrelevant and prejudicial question upon the defendant’s response to the first question.”).

The proposed line of questioning, however, was irrelevant. The simple fact that the victim

had been previously sexually abused and that the perpetrator was no longer permitted to

see the victim had no bearing, in and of itself, on whether the victim fabricated the facts of

her abuse in this case. See State v. Williams, No. W2015-01981-CCA-R3-CD, 2016 WL

4577064, at *5 (Tenn. Crim. App. Aug. 31, 2016) (holding that evidence which is

irrelevant, including on the issue of a witness’s credibility, is inadmissible), no perm. app.

filed. The victim’s proposed testimony did not make her more or less likely to lie about

the Defendant’s assaulting her or observing her without her consent, nor did it in any way

impact her credibility as a witness in this case. Whether the victim wanted the Defendant

removed from the house prior to the allegations may have been a relevant question.

Whether the victim had been sexually abused in the past was not. The trial court did not

abuse its discretion in concluding that the proposed line of questioning was irrelevant.

We note that the Defendant also contends the trial court erred by considering

Tennessee Rule of Evidence 412 and Tennessee Code Annotated section 24-7-125 in its

restriction of his cross-examination of the victim. This argument is unavailing. Although

the State argued the proposed testimony was inadmissible under those provisions and the

trial court referenced them at trial and at the hearing on the Defendant’s motion for new

trial, the trial court’s ultimate ruling regarding the Defendant’s cross-examination of the

victim regarding her prior accusations of abuse was based upon Tennessee Rule of

- 29 -

Evidence 401. The trial court also noted that those issues were not timely raised pretrial.

Accordingly, the trial court did not abuse its discretion in declining to consider the

evidence’s admissibility pursuant to Tennessee Rule of Evidence 412 or Code section 24-

7-125. The Defendant is not entitled to relief on this issue.

3. THE VICTIM’S FATHER

The Defendant also argues the trial court erred by restricting his cross-examination

of the victim’s father regarding a recent criminal charge of theft. He argues that he was

entitled to inquire into the victim’s father’s recent charge to impeach his credibility,

pursuant to Tennessee Rule of Evidence 608(b), and that the trial court’s prevention of his

doing so violated the Confrontation Clause and his right to due process of the law. The

State responds that the trial court did not err in restricting cross-examination, but if it did,

then the error was harmless because the Defendant was nevertheless sufficiently permitted

to impeach the victim’s father’s credibility.

Tennessee Rule of Evidence 608(b) authorizes impeachment of a witness’s

credibility by inquiring into a witness’s character for truthfulness based upon specific

instances of conduct when certain conditions are met. As relevant to this case, the trial

court “upon request must hold a hearing outside the jury’s presence and must determine

that the alleged conduct has probative value and that a reasonable factual basis exists for

the inquiry.” Tenn. R. Evid. 608(b). However, both the United States Constitution and the

Tennessee Constitution protect a criminal defendant’s right against self-incrimination.

U.S. Const. amend. V (“No person . . . shall be compelled in any criminal case to be a

witness against himself.”); Tenn. Const. art. I, § 9 (“In all criminal prosecutions, the

accused . . . shall not be compelled to give evidence against himself.”)

Fifth Amendment concerns may be implicated where, as here, the witness testifies

he or she has pending charges for a crime of dishonesty. Although Tennessee Rule of

Evidence 608(b) permits cross-examination of a witness by inquiring into specific

instances of conduct “if probative of truthfulness or untruthfulness,” if “there is a conflict

between the basic right of a defendant to compulsory process and the witness’s right against

self-incrimination, . . . the right against self-incrimination is the stronger and paramount

right.” State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981) (citing Frazier v. State, 566

S.W.2d 545, 551 (Tenn. Crim. App. 1978)). Accordingly, a trial court may restrict cross-

examination pursuant to Tennessee Rule of Evidence 608(b) where it is apparent that “the

answers to certain questions will result in the witness asserting the Fifth Amendment

privilege against self-incrimination.” State v. Dunn, No. E2021-00343-CCA-R3-CD, 2022

WL 2433687, at *13 (Tenn. Crim. App. July 2, 2022) (citing State v. Lakins, No. 03C01-

9703-CR-00085, 1998 WL 128842, at *4 (Tenn. Crim. App. Mar. 24, 1998), perm. app.

denied (Tenn. Nov. 2, 1998)), perm. app. denied (Tenn. Dec. 14, 2022).

- 30 -

After voir dire, but before opening statements, the Defendant notified the trial court

that the victim’s father had been arrested the day before for a charge of theft in McMinn

County. The State acknowledged this and requested the trial court hold a hearing pursuant

to Tennessee Rule of Evidence 404(b) to determine the admissibility of any proof of the

victim’s father’s recent charges. The trial court stated it would do so before the victim’s

father testified. In a bench conference following the victim’s testimony, the trial court also

noted that it would address the issue pursuant to Tennessee Rule of Evidence 608.

At the subsequent jury-out hearing, the trial court questioned the victim’s father

regarding his recent criminal charge:

Q: All right, sir, it’s the [c]ourt’s understanding that you may be called as a

State’s witness in this case. It’s further the [c]ourt’s understanding that

you’ve recently been charged, I believe in the general sessions court with the

offense of theft –

A: Uh-huh.

Q: – is that correct? All right. What I need to advise you is that you have a

right to not subject yourself to self-incrimination. Do you understand that,

sir?

A: (Witness nods head.)

Q: And if you testify with regard to a crime of dishonesty, sometimes that

can become relevant. And when it does, the lawyers can ask you about that.

And if you do that, that may be a concession to guilt on the matter that could

be used against you further down the road. [] So my duty is to advise you

that you have a Fifth Amendment right and protection against self-

incrimination. Do you understand that, sir?

A: I do.

Q: All right. Do you intend to testify in this case?

A: In this case?

Q: Yes, sir.

A: I do in this case, yes, sir.

- 31 -

Q: And with respect to if you’re asked about a pending charge that you have,

if it your – what do you plan to do?

A: I plead the Fifth on that.

Q: Okay. All right, that’s sufficient. Does either party have further questions

for [the victim’s father]?

Following this testimony, defense counsel also informed the trial court that she believed

the victim’s father had also been charged with burglary in 2018. Defense counsel conceded

she was unsure if the victim’s father was convicted of that charge but noted that the charge

was “listed on the Tennessee court’s website.” The trial court held that defense counsel

had failed to introduce “clear and convincing evidence of any disposition in that case.”

Defense counsel then asked the trial court whether she would be permitted to ask the

victim’s father if he had been charged. The trial court held that if the victim’s father

“intend[ed] to testify about other matters, he would be permitted to do that, but with respect

to the present charge, the defense counsel would not be able to ask him about that in any,

in any capacity,” reasoning that the victim’s father’s right against self-incrimination

outweighed the Defendant’s right to cross-examine the victim’s father regarding his

pending charge.

The Defendant contends that the trial court abused its discretion in restricting him

from asking the victim’s father if he had been charged with a crime of dishonesty, because

such testimony is relevant and non-incriminatory evidence that the Defendant could have

used to impeach the victim’s father’s credibility. We disagree. In this case, the sole

question the Defendant posed to ask the victim’s father was whether he had recently been

charged with theft. The fact that a witness has been charged with a criminal offense, even

one involving dishonesty, is not in itself relevant evidence to impeach the witness's

credibility. The witness, like all criminal defendants, is presumed innocent of the charge

against them. Prior to conviction, only the specific act of dishonesty by the witness would

be relevant under Tennessee Rule of Evidence 608(b) to attack credibility. The act of

charging the witness with a crime was an act by the State, not the witness. Since the

Defendant only wanted to ask the victim’s father if he had been charged with theft, he, in

essence, wanted to impeach the witness with the conduct of another, namely the conduct

of the State of Tennessee. Thus, the trial court did not abuse its discretion in prohibiting

this question, as it was not relevant to the witness’s credibility.

Concerning the specific instance of conduct by the victim’s father that may have led

to the theft charge, upon examination, the victim’s father agreed that he had been charged

but that he intended to invoke his Fifth Amendment privilege against self-incrimination if

- 32 -

asked about that charge.3 Despite this answer, the Defendant maintains on appeal that he

should have been permitted to pose this question to the victim’s father to impeach his

credibility. This is, effectively, an argument that the trial court should have compelled the

victim’s father to invoke his Fifth Amendment privilege before the jury so the Defendant

could test his credibility. However, our case law is clear that “[n]either side has a right to

benefit from any inferences the jury may draw simply from the witness’ assertion of the

privilege either alone or in conjunction with questions that have been put to him.” Dicks,

615 S.W.2d at 129; see also State v. Rollins, 188 S.W.3d 553, 569 (Tenn. 2006) (noting

that a witness’s invocation of his or her Fifth Amendment privilege in the presence of the

jury may have “a disproportionate impact on [the jury’s] deliberations”) (quoting State v.

Bowles, 439 F.2d 536, 541-42 (D.C. Cir. 1970)). Of course, as the Defendant correctly

notes, where a party seeks to cross-examine a witness pursuant to Tennessee Rule of

Evidence 608(b) and the witness can testify regarding other relevant, non-incriminatory

facts, the trial court does not err by permitting examination regarding those facts, so long

as they do not infringe upon the witness’s invocation of his or her privilege against self-

incrimination. See, e.g., State v. Hardison, 680 S.W.3d 282, 316 (Tenn. Crim. App. 2023);

State v. Dooley, 29 S.W.3d 542, 551 (Tenn. Crim. App. 2000); Lakins, 1998 WL 128842,

at *4. But where, as here, a party seeks to ask a witness a single question regarding a prior

instance of conduct and it is evident that the witness intends to invoke his or her privilege

against self-incrimination in response to that question, a trial court does not abuse its

discretion by restricting cross-examination. Dunn, 2022 WL 25433687, at *13.

Nevertheless, the Defendant likens this case to State v. Hardison, in which this court

ruled that a trial court did not err by permitting inquiry into certain non-incriminatory

aspects of a witness’s pending charges on cross-examination. However, there are several

important differences between Hardison and this case, primarily that the defendant

explicitly sought the trial court’s approval to inquire into non-incriminatory facts that were

highly relevant to his theory of the case. In Hardison, the defendant sought to cross-

examine the witness regarding his pending charges, which included “drug possession

charges,” because “it goes to whether [the witness] was on meth” on the day he purported

to see the defendant with a firearm prior to the victim’s murder, as well as issues of

potential bias or an expectation of favoritism in return for his testifying for the State.

Hardison, 680 S.W.3d at 293-94. At trial, the witness invoked his Fifth Amendment

3

We note that the Defendant does not argue on appeal that the trial court failed to comply with

Tennessee Rule of Evidence 608(b)’s procedural requirements; although he argues he should have been

able to test the victim’s father’s credibility pursuant to Tennessee Rule of Evidence 608(b), his challenge

is primarily based upon whether the trial court erred by permitting the victim’s father to invoke his Fifth

Amendment privilege against self-incrimination. Nevertheless, we are constrained to note that beyond the

victim’s father’s agreement that he had recently been charged with theft in the general sessions court, there

was remarkably little proof before the trial court upon which it could have concluded that a reasonable

factual basis existed for the inquiry. See Tenn. R. Evid. 608(b).

- 33 -

privilege through counsel regarding the details of his pending charges, and the trial court

restricted cross-examination in that regard but otherwise permitted the defendant to ask the

witness “what he’s got pending on the table . . .; the fact that he[] hasn’t been prosecuted

yet, he’s not been held to account, [and] the State’s not pushed [his] cases to trial.” Id. at

294, 298 (alterations in original). A central issue in Hardison was the sufficiency of the

State’s proof of the defendant’s identity as the shooter, and the areas in which the trial court

authorized cross-examination permitted the defendant to test the credibility of a witness’s

testimony, which tended to identify the defendant as the shooter. Id. at 298, 318-20.

Even setting aside the fact of the victim’s father’s invocation of his Fifth

Amendment privilege against self-incrimination and the lack of relevance, the Defendant’s

proposed cross-examination regarding his pending charge lent little probative value to his

defense, in contrast to the cross-examination permitted in Hardison. Although the

Defendant correctly notes that credibility was a central issue in this case, it was the victim’s

credibility, not her father’s, upon which the State relied. The victim’s father’s testimony

added little, if any, incriminating evidence against the Defendant. What is more, despite

his argument that the trial court’s restriction of his cross-examination of the victim’s father

violated the Confrontation Clause and his right to due process of the law, the Defendant

was freely permitted to impeach the victim’s father’s credibility in other manners. During

his cross-examination of the victim’s father, the Defendant noted that the victim’s father

had testified on direct examination that he was unable to recall whether he provided any

details of the victim’s allegations to the Defendant on their ride back home but on cross-

examination agreed that he told the police that the Defendant “denied it all” and that he

recalled “the conversation” he and the Defendant had. The Defendant reiterated this attack

on the victim’s father’s credibility during his closing argument by noting that “originally,

he testified he couldn’t remember the details of what he and [the Defendant] talked about

on the car ride home. Later[,] he was sure of it.” Accordingly, in light of the sufficiency

of the convicting evidence, the limited value of the victim’s father’s testimony to that

evidence, and the Defendant’s impeachment of the victim’s father’s credibility via other

avenues, we cannot say that the trial court’s restriction of cross-examination contributed

beyond a reasonable doubt to the jury’s verdict of guilty. The Defendant is not entitled to

relief.

E. CUMULATIVE ERROR

The Defendant also argues that the cumulative effect of the errors in this case entitles

him to a new trial. “The cumulative error doctrine exists to protect a criminal defendant’s

state and federal constitutional right to a fair trial.” Herron, 461 S.W.3d at 909 (citing

State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010)). The cumulative error doctrine provides

relief where there are multiple errors committed during the trial, “each of which in isolation

constitutes mere harmless error, but which when aggregated, have a cumulative effect on

- 34 -

the proceedings so great as to require reversal in order to preserve a defendant’s right to a

fair trial.” Hester, 324 S.W.3d at 76. “To warrant assessment under the cumulative error

doctrine, there must have been more than one actual error committed in the trial

proceedings.” Id. at 77. Because we discern no properly presented trial court errors in this

case, the Defendant is not entitled to relief under the cumulative error doctrine.

F. MERGER OF OFFENSES

Finally, although not raised by either party, we consider the doctrine of merger as a

matter of plain error. Generally, this court’s jurisdiction extends only to those issues

properly preserved and presented for appellate review. Tenn. R. App. P. 13(b); State v.

Bristol, 654 S.W.3d 917, 923 (Tenn. 2022). However, this court may also “consider other

issues in order, among other reasons: (1) to prevent needless litigation, (2) to prevent injury

to the interests of the public, and (3) to prevent prejudice to the judicial process.” Tenn.

R. App. 13(b); see also Tenn. R. App. 36(a) (providing that the appellate courts “shall grant

the relief on the law and facts to which the party is entitled or the proceeding otherwise

requires”). The standard of review for unpresented or unpreserved issues considered under

this discretion is for plain error. Tenn. R. App. P. 36(b); Hester, 324 S.W.3d at 56.

Both the United States Constitution and the Tennessee Constitution protect a

criminal defendant’s right against double jeopardy. U.S. Const. amend. V (providing that

“[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or

limb”); Tenn. Const. art. I, § 10 (providing “[t]hat no person shall, for the same offence,

be twice put in jeopardy of life or limb.”). The doctrine of merger provides that “under

certain circumstances, two convictions or dual guilty verdicts must merge into a single

conviction to avoid double jeopardy implications.” State v. Berry, 503 S.W.3d 360, 362

(Tenn. 2015). Merger is required in cases where, as here, “a jury returns guilty verdicts on

two counts that represent alternative theories of the same offense.” Id. (first citing State v.

Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998); and then citing State v. Cooper, 336 S.W.3d

522, 523-24 (Tenn. 2011)).

The requirements for plain error review are met in this case. Rimmer, 623 S.W.3d

at 255-56. The issue was addressed during the appellate arguments, and the parties agreed

that merger is required. The record clearly establishes what occurred in the trial court; the

Defendant was indicted, tried, and convicted of two charges of observation without consent

based upon alternative theories: in count one, that his observation of the victim was

offensive, and in count two, that the same observation was embarrassing. These charges

arose from the same criminal episode and required merger, Berry, 503 S.W.3d at 362, but

the trial court did not merge the offenses following the jury’s guilty verdict. Moreover, we

can perceive no reason for the Defendant to have tactically waived this issue. Accordingly,

we remand this case to the trial court for the entry of corrected judgments reflecting the

- 35 -

merger of the Defendant’s convictions of observation without consent into a single

conviction.

III. CONCLUSION

Following our review of the record and based upon the foregoing analysis, we

remand this case for the entry of corrected judgments reflecting the merger of the

Defendant’s convictions of observation without consent into a single conviction. We

otherwise affirm the judgments of the trial court.

s/ Steven W. Sword

STEVEN W. SWORD, JUDGE

- 36 -