The opinion
05/14/2026
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 14, 2026
STATE OF TENNESSEE v. OSCAR ROMERO
Appeal from the Circuit Court for Montgomery County
No. CC-2021-CR-1328 Robert T. Bateman, Judge
No. M2025-00777-CCA-R3-CD
The Defendant, Oscar Romero, was convicted by a Montgomery County jury of rape, a
Class B felony. See T.C.A. § 39-13-503 (2018) (subsequently amended). On appeal, he
asserts that the proof is insufficient to sustain his conviction, that the trial court erred by
excluding rebuttal evidence to impeach the victim, and that the court erred in its
application of an enhancement factor during sentencing. We affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which TOM
GREENHOLTZ and STEVEN W. SWORD, JJ., joined.
John T. Maher, Clarksville, Tennessee, for the appellant, Oscar Romero.
Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilber, Senior Assistant
Attorney General; Robert J. Nash, District Attorney General; and Christopher L. West,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Defendant’s conviction relates to the rape of a nineteen-year-old victim that
occurred on December 26-27, 2020, after a party at the Defendant’s house for the
Defendant’s stepdaughter.
At the trial, the victim testified that on December 26, 2020, she was age nineteen,
lived with her parents, and attended a birthday party for her friend, Ms. Enriquez, who
was the Defendant’s stepdaughter. The victim said that Ms. Enriquez’s cousin drove her
from her house in Nashville to the party at the Defendant’s house in Clarksville and that
the victim was supposed to return home that same evening. The victim recalled that she
arrived at the Defendant’s house around 10:00 p.m. and that approximately twenty
members of Ms. Enriquez’s family were in attendance. The victim said that she had
previously met the Defendant and identified him at the trial. The victim stated that Ms.
Enriquez’s mother, Maribel Paredes, offered the victim an alcoholic drink and that the
victim did not eat any food during the party. The victim recalled that everybody
continued drinking throughout the evening and that, around 11:00 p.m., she contacted her
mother and asked if she could stay the night because Ms. Enriquez’s cousin, who was
supposed to drive the victim home, had been drinking alcohol. The victim said that her
mother contacted Ms. Paredes and gave permission for her to stay the night. The victim
said that over the course of the evening, guests left until only the victim, Ms. Enriquez,
Ms. Paredes, the Defendant, and two other guests remained at the house.
The victim testified that she and Ms. Enriquez would “go out” about three
weekends each month and would drink alcohol. The victim recalled that after drinking
the alcoholic drink she was given when she arrived, she began drinking whiskey in a shot
glass. The victim recalled that Ms. Paredes and other guests poured alcohol into shot
glasses. The victim believed that she had more than three shot glasses of alcohol.
The victim testified that, during the party and while she was sitting in a chair at the
kitchen counter, the Defendant “put his arm around [her] and grabbed [her] left breast”
with his hand. The victim said that she did not want the Defendant to do this, and she left
the kitchen and went to bed in Ms. Enriquez’s bedroom. The victim said this happened
while Ms. Enriquez, Ms. Paredes, and the other guests sang karaoke. The victim said that
she did not mention this incident to anyone at the party because she was “in shock.” The
victim acknowledged that she was “pretty drunk” at the time and that she wanted to
“sleep it off.” The victim explained that the long side of Ms. Enriquez’s bed was pushed
against a window, that she slept on the side of the bed away from the window, and that
she slept on her side with her face toward the window and her back toward the door. The
victim believed she went to bed around 2:00 a.m. and set an alarm for 10:00 a.m. The
victim recalled that she went to bed wearing a black, braless top, underwear, and white
jeans and that she lay on top of the covers. The victim said that she closed the bedroom
door after entering the bedroom, that it was dark, and that she was alone when she went
to bed. The victim stated that she did not recall Ms. Enriquez entering the bedroom.
The victim testified that she awoke “feeling [the Defendant] behind me.” The
victim explained that she felt a man “thrusting himself against [her]” and that he had his
“private part” in her vagina. The victim said that she tried but was unable to wake
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completely and fell unconscious. The victim said she “just had a feeling” that the man in
bed with her was the Defendant. The victim acknowledged that she did not know
whether the man ejaculated. The victim said that Ms. Enriquez was asleep on the bed to
the victim’s right and on the side of the bed that was closer to the window. The victim
recalled waking up again during the night and hearing an argument before falling asleep.
The victim said she could not determine who argued. The victim said that when she
awoke from her alarm, Ms. Enriquez was beside her in the bed on the victim’s left side
and that Ms. Enriquez’s mother and younger sister were sleeping on the bedroom floor.
The victim stated that Ms. Enriquez’s mother and sister had not been sleeping on the
floor when the victim awoke earlier and heard an argument.
The victim testified that when she awoke at 10:00 a.m., her underwear was
“rolled” and her pants were unzipped and “sort of down.” The victim recalled that her
pants had been zipped when she went to bed. The victim said that the state of her clothes
led her to believe that someone had “messed with them” and that feeling a man behind
her had not been a dream. The victim said that the Defendant entered the bedroom and
asked how she and Ms. Enriquez slept. The victim stated that she was scared to
acknowledge that she was aware something had happened and pretended everything was
“okay.” The victim said that Ms. Enriquez “just looked down the whole time.” The
victim acknowledged that she did not tell anyone about what happened because she felt
she could not trust Ms. Enriquez’s family. The victim said that Ms. Enriquez’s cousin
gave her a ride home and that during the ride, she felt like crying and remained silent.
The victim said that during the ride she sent a text message to her boss regarding what
had happened and told her boss that she would miss work. The victim recalled arriving at
her house around noon on December 27, 2020.
The victim testified that after arriving at her house, she told her sister what had
happened and that they went to the hospital, where a nurse performed a sexual assault
examination. The exam included swabs of the victim’s vagina. The victim said that she
did not report the assault to the police on the day she visited the hospital but that she
reported it to the police two days later, after telling her mother. The victim recalled
giving a statement to the police. The victim said that she did not want to have sexual
intercourse with the Defendant, that she did not flirt with the Defendant or indicate she
wanted to have sex with him, and that she never told anyone that she wanted to have sex
with him.
The victim testified that, after the incident, the Defendant attempted to send her
messages on Facebook which she did not open, and she later blocked his messages. The
victim stated that she had not been friends on Facebook with the Defendant and that she
“didn’t want anything to do with him.” The victim said that the messages sent by the
Defendant were later “unsent” by the Defendant. A screenshot of the Defendant’s
Facebook profile showing sent and unsent messages was received as an exhibit. The
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victim stated that she blocked Facebook messages from Ms. Enriquez and that she and
Ms. Enriquez “eventually” stopped staying in contact with each other.
On cross-examination, the victim testified that, initially, she planned to stay at Ms.
Enriquez’s party for about an hour, that she planned to drink alcohol, and that she
believed Ms. Enriquez’s cousin could drive her home. The victim recalled that the
dancing and karaoke lasted approximately three hours and that she recorded videos and
sent text messages. The victim, however, acknowledged that she did not have a copy of
the recordings or messages. The victim stated that after going to bed, she did not
remember Ms. Enriquez, Ms. Paredes, or Ms. Enriquez’s sister entering the bedroom.
The victim said she did not recall telling the nurse or the police officer that the Defendant
left Ms. Enriquez’s bedroom after Ms. Enriquez asked him to leave. The victim said that
she did not recall any time after going out and drinking alcohol when she took off her
clothes or sent a text message to her boss’s husband. The victim did not recall Ms.
Enriquez ever telling the victim that the victim had done those things.
The victim testified that she contacted the police by telephone. The victim said
that she did not recall telling the nurse that she lay on her stomach when she was raped,
nor did she recall a police officer asking her about whether she was lying on her stomach
or her side. The victim recalled one police interview and then later telephone calls. The
victim recalled that she was alone when she first went to sleep in the bedroom, that Ms.
Enriquez was asleep on the victim’s right when the victim woke during the incident, and
that when the victim woke from her alarm, Ms. Enriquez was asleep on the victim’s left,
where the Defendant had been. The victim acknowledged that she had no “issues” with
the Defendant during the previous three or four times she had been around the Defendant.
The victim’s sister testified that in December 2020, she was age fifteen and lived
in Nashville with her parents and siblings, including the victim. The victim’s sister
recalled receiving a telephone call from the victim on the morning of December 27 and
that the victim sounded upset. The victim’s sister said the victim went straight to the
victim’s bedroom upon arriving home. The victim’s sister recalled talking to the victim
but said that the victim did not talk to their parents. The victim’s sister said that, on
December 27, she accompanied the victim to the hospital and that the victim appeared
angry. The victim’s sister said that when she joined the victim in the hospital room, the
victim was crying, which was unusual. The victim’s sister stated that upon returning
home, the victim began sleeping in the victim’s sister’s bedroom instead of the victim’s
bedroom. On cross-examination, the victim’s sister acknowledged that she did not attend
Ms. Enriquez’s party or know the Defendant.
The victim’s mother testified that she had met Ms. Enriquez and Ms. Paredes prior
to Ms. Enriquez’s party and that the victim had asked permission to attend Ms.
Enriquez’s party. The victim’s mother recalled that she was hesitant to allow the victim
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to attend because the party was far from Nashville but that she agreed because the victim
was supposed to return home the same night. The victim’s mother said that she agreed to
allow the victim to spend the night at Ms. Enriquez’s house only after Ms. Paredes sent
her a text message asking if the victim could stay. The victim’s mother said that she was
not at home when the victim returned home and that when she saw the victim the next
day, December 28, the victim “looked strange” and “was shut up in her room.” The
victim’s mother said that on December 29, the victim told her what happened at Ms.
Enriquez’s house, that she told the victim to contact the police, and that the victim spoke
to a detective. The victim’s mother stated that she helped the victim begin counseling.
On cross-examination, the victim’s mother said that she has had no contact with the
Defendant.
Meredith Boggs, a nurse and expert in the area of sexual assault examination,
testified that on the afternoon of December 27, 2020, she performed an examination of
the victim at the Vanderbilt Medical Center. Ms. Boggs said that she began the
examination by obtaining the victim’s medical history and obtaining any other
information that could affect the collection of DNA evidence. Ms. Boggs stated that the
victim had not showered or changed her underwear. Ms. Boggs said that the victim
related that she had been at a friend’s party and had been drinking alcohol, that she went
to bed fully clothed, that she awoke feeling “someone was behind [her] going inside of
[her]” and touching her breast, and that her friend awoke and yelled at “this person” to
get out. Ms. Boggs recalled that the victim said she was unsure whether the person
ejaculated. Ms. Boggs said the victim did not disclose the name of her assailant.
Ms. Boggs testified that she examined the victim for any injuries and collected
swabs for DNA evidence, including swabs of the victim’s vaginal area, and the victim’s
underwear. Ms. Boggs said that the victim’s vaginal area was not injured and that such a
finding was not unusual in sexual assault cases. Ms. Boggs did not take photographs
because the victim declined to be photographed. Ms. Boggs explained that the swabs and
underwear were sent to a laboratory for DNA testing. The sexual assault kit containing
evidence collected from the victim was received as an exhibit.
Officer Brittney Honeycutt testified that she spoke to the victim by telephone and
that the victim reported being sexually assaulted by the Defendant at the Defendant’s
house.
Clarksville Police Department (CPD) Sergeant Sean Walden testified that, in
December 2020, he was a detective with the special victims unit and, on January 7, 2021,
he interviewed the victim at the CPD office. Sergeant Walden stated that on January 8,
he went to the Defendant’s house, that he was unable to locate the Defendant, and that he
left a contact card. Sergeant Walden said that he received a telephone call from Ms.
Enriquez and that he spoke to Ms. Enriquez and Ms. Paredes. Sergeant Walden recalled
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that the Defendant provided a DNA sample and that Sergeant Walden submitted the
Defendant’s sample and the victim’s sexual assault kit to the Tennessee Bureau of
Investigation (TBI) for testing.
On cross-examination, Sergeant Walden testified that during his interview of the
victim, she indicated that she “was not falling down drunk” at Ms. Enriquez’s party and
that she and Ms. Enriquez went together into the bedroom. Sergeant Walden recalled
that the victim described the Defendant as being on top of her and also behind her.
Sergeant Walden said that after talking to the victim a second time, he concluded the
victim believed that the Defendant was behind her during the incident and that Ms.
Enriquez knew that something had happened and that Ms. Enriquez had walked with the
Defendant out of the bedroom. Sergeant Walden stated that he never received Snapchat
video recordings from Ms. Enriquez, although she had mentioned that they existed.
Laura Boos, a former special agent forensic scientist with the TBI and a forensic
biology expert, testified that she analyzed evidence collected from the victim and the
Defendant. Ms. Boos stated that the victim’s vaginal swabs contained sperm cells, for
which she developed a DNA profile. Ms. Boos said that she also obtained DNA profiles
from the Defendant’s and the victim’s buccal swabs. Ms. Boos stated that the evidence
obtained from the victim’s vaginal swabs contained DNA from both the victim and the
Defendant. Ms. Boos explained that “no one other than [the Defendant] could be the
source of that DNA profile with the exception of an identical twin.” Ms. Boos said that
TBI policy dictated that if tests of a victim’s “most intimate items,” such as the victim’s
vaginal swabs, show a DNA match, then testing of additional items was unnecessary.
Ms. Boos’s forensic report was received as an exhibit.
The State concluded its proof.
Outside the presence of the jury, the trial court heard testimony from Ms. Enriquez
that rebutted the victim’s testimony regarding past instances when the victim forgot
events after becoming intoxicated. Ms. Enriquez testified that sometimes when she and
the victim went out and drank alcohol, the next morning the victim could not recall what
the victim did the prior evening. Ms. Enriquez said this happened two or three times.
Ms. Enriquez recalled a time when the victim texted her boss’s husband, another time
when the victim began “acting weird” and “touching herself,” and a third time when the
victim tried to kiss Ms. Enriquez. Ms. Enriquez stated that she told the victim about what
the victim did on those three occasions, but that the victim did not have any recollection
of doing those things.
The parties agreed that the incident involving the victim trying to kiss Ms.
Enriquez was excluded by Tennessee Evidence Rule 412. The defense argued that the
remaining rebuttal evidence was admissible to prove the victim was not truthful during
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her testimony. The State noted that the victim was never asked about touching herself
and that sending a text message was not relevant or unusual behavior. The State also
argued that this evidence was excluded by Tennessee Evidence Rule 608(b). The court
held that the rebuttal evidence regarding the victim’s touching herself and trying to kiss
Ms. Enriquez was sexual in nature and barred by Tennessee Evidence Rule 412. The
court noted that the Defendant had failed to provide any notice or to request a hearing
before using this evidence as required by Rule 412. The court determined that the
victim’s text message “could be an [a]llusion to sexual impropriety,” and, thus, also was
barred by Rule 412. Additionally, the court found the evidence regarding the text
message to be irrelevant and, even if relevant, the potential for undue prejudice
outweighed any relevance. The jury returned to the courtroom.
Ms. Enriquez testified for the defense that she lived in Clarksville with her mother,
sister, and the Defendant and that she and her family lived in Nashville before moving to
Clarksville. Ms. Enriquez said that she had a birthday party in December 2020, to which
she invited her family, extended family, and the victim, with whom she had been friends
for two years. Ms. Enriquez recalled that her cousin drove the victim to the party and
that it was the first time the victim had been to Ms. Enriquez’s house in Clarksville. Ms.
Enriquez believed the victim arrived at the party around 8 p.m. Ms. Enriquez said that
alcoholic beverages were served at the party and that people danced and sang karaoke.
Ms. Enriquez said that she went with the victim to the bedroom and that they recorded
videos for and looked at social media before going to sleep. Two Snapchat video
recordings, one showing a time of 4:23 a.m. and the other of 4:26 a.m. on December 27,
2020, showed Ms. Enriquez and the victim in Ms. Enriquez’s bedroom, and were
received as exhibits. Ms. Enriquez stated that she and the victim went to sleep after
recording the videos and that the only other people in the bedroom were Ms. Enriquez’s
mother and sister, who slept on the floor next to the bed. Ms. Enriquez said her bedroom
door opened into the room and that birthday presents were on the floor near the door,
which the door touched when it opened. Ms. Enriquez recalled that she was not disturbed
during the night by noise or movement, that her mother woke her the next morning
around 9:00 a.m. or 10:00 a.m., and that the victim and Ms. Enriquez’s sister were still
asleep when Ms. Enriquez awoke. Ms. Enriquez stated that when she awoke, she was in
the same position on the bed near the window as when she went to sleep. Ms. Enriquez
said that the victim asked to borrow clothes to wear to work and seemed “fine.” Ms.
Enriquez recalled that the victim slept under the bed covers. Ms. Enriquez stated that the
Defendant was in the kitchen with her cousin when she went to sleep and that he was in
the living room the next morning. Ms. Enriquez acknowledged that she did not have any
contact with the victim after the morning of December 27 except that Ms. Enriquez sent
the victim a text message after Ms. Enriquez was contacted by a police investigator, to
which the victim did not respond. Ms. Enriquez stated that she was certain that, on
December 27, the Defendant did not enter or need to be escorted out of her bedroom.
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On cross-examination, Ms. Enriquez testified that she told the investigator that she
and the victim went to bed between 3:00 a.m. and 4:00 a.m. and acknowledged that video
recordings could be posted to social media at a time later than when they were recorded.
Ms. Enriquez said that she was age nineteen on December 26, 2020, that she began
drinking tequila that night around 8:00 p.m., and that she described herself to Detective
Walden as being “wasted” during the party. Ms. Enriquez explained that around
midnight she and other guests began dancing and singing karaoke. Ms. Enriquez
estimated that she consumed five or six shots of tequila. Ms. Enriquez acknowledged
that the Defendant was her stepfather and that she had lived with him for approximately
eight or nine years.
On redirect examination, Ms. Enriquez testified that the Defendant no longer lived
with her and her mother and that she did not want to have any contact with the Defendant
“because of how much he hurt my mom and sister,” which Ms. Enriquez attributed to
financial issues.
Maribel Paredes testified that the victim and her daughter, Ms. Enriquez, were
friends and drank tequila during the party. Ms. Paredes said that she did not notice any
interaction between the victim and the Defendant during the party, that she was the last to
go to bed, and that the victim and Ms. Enriquez went to bed around 3:45 a.m. Ms.
Paredes explained that she, the victim, Ms. Enriquez, and Ms. Enriquez’s sister slept in
Ms. Enriquez’s bedroom, that the Defendant and Ms. Enriquez’s cousin slept on the floor
in the living room, and that two other guests slept in Ms. Paredes’s bedroom. Ms.
Paredes said she and Ms. Enriquez’s sister slept on the floor. Ms. Paredes recalled that
her feet touched Ms. Enriquez’s bedroom door when she fell asleep and that she slept
through the night until the victim’s alarm woke her. Ms. Paredes explained that she then
woke Ms. Enriquez and that Ms. Enriquez woke the victim. Ms. Paredes recalled that the
victim slept on the side of the bed next to the window and that Ms. Enriquez slept on the
side of the bed closer to the door.
On cross-examination, Ms. Paredes testified that she, Ms. Enriquez, and the victim
drank alcohol but that she did not recall whether someone gave the victim a bottle of
whiskey. Ms. Paredes said that Ms. Enriquez’s cousin was age seventeen at the time of
the party. Ms. Paredes said that when party guests began to leave, she told Ms. Enriquez
and the victim to stop drinking alcohol and to go to bed. Ms. Paredes acknowledged that
she told Detective Walden that the victim and Ms. Enriquez went to bed between 2:30
a.m. and 3:00 a.m. and that she went to bed around 3:45 a.m. Ms. Paredes explained that
her house had three bedrooms and that no one slept in Ms. Enriquez’s sister’s bedroom.
Ms. Paredes said that she told Ms. Enriquez’s cousin to sleep there but that he slept on
the living room floor.
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Ms. Enriquez’s cousin testified that he drove the victim to Ms. Enriquez’s party
and that he and the Defendant were the last to go to sleep on the floor in the living room.
Ms. Enriquez’s cousin said that on December 27, 2020, Ms. Paredes woke him and that
he drove the victim home. He said the victim seemed normal. On cross-examination,
Ms. Enriquez’s cousin said that he and the Defendant were the last to go to sleep around
5:00 a.m. and that he “kn[e]w for sure [Ms. Enriquez’s sister] was sleeping in her room.”
The Defendant elected not to testify.
The jury found the Defendant guilty of one count of rape.
At the sentencing hearing, the presentence report was received as an exhibit. It
reflected that the Defendant was age forty-two at the time of the offense, that he attended
school in Mexico, and that he completed additional education through the eighth grade in
the United States. The Defendant had no prior criminal history. The Defendant reported
that his mental health was good, that his physical health was fair, and that he took sleep
medication. The Defendant acknowledged that he was intoxicated on the night of the
offense but denied that he was dependent on alcohol. The Defendant reported illegally
entering the United States when he was age sixteen or seventeen, that his father was
deceased, and that his mother had just obtained a visa to travel to the United States. The
Defendant reported that, as a child, he was sexually abused by a relative. The Defendant
said that he had been married to Ms. Paredes for ten years, that they had a daughter
together, and that he had a stepdaughter, Ms. Enriquez. The Defendant also reported a
son who lived in Mexico. The Defendant stated that he had a good relationship with his
wife and daughter but that he no longer had contact with Ms. Enriquez. The Defendant’s
prior employment included construction work. The Strong-R Risk and Needs
Assessment reflected that the Defendant had a low risk to reoffend and a high or
moderate need for education and residential assistance.
The trial court also received victim impact statements from the victim and the
victim’s sister. The victim wrote that she “will never be the same after this” and that her
sister and mother also “suffered greatly.” She wrote that she was diagnosed with post-
traumatic stress disorder and depression. She wrote that she engaged in destructive
behavior and that her grades fell. She described the rape as affecting her “relationships,
health, and enjoyment of life.” She wrote that she pushed away her friends and family
and sought therapy and that she had feelings of “guilt, despair, and disgust” and suicidal
ideations. She described living with trauma as a “day-to-day battle.” She requested that
the court order the Defendant to serve a maximum sentence. Likewise, the victim’s sister
described the torment she and the victim experienced as a result of the rape.
Ms. Paredes testified that she had known the Defendant for eleven years, and she
described him as a good man who never had engaged in criminal behavior. Ms. Paredes
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said that the Defendant had been a good provider and a loving father. Juana Romero, the
Defendant’s sister, testified that the Defendant was hardworking and responsible and that
he never had been in trouble during the fifteen years he had lived in Tennessee.
The State argued that enhancement factors applied because the victim was
particularly vulnerable at the time of the rape due to intoxication, that the Defendant
admitted he was unlawfully in the United States, and that the Defendant reported
frequently using alcohol and being intoxicated on the night of the offense. See T.C.A. §
40-35-114 (2019) (subsequently amended). The State requested an eleven-year sentence.
The Defendant argued that the victim’s incapacitation was an essential element of the
crime and should not be considered as an enhancement factor. The Defendant, requesting
that the court order the minimum sentence, also argued that his citizenship status had not
been adjudicated, that he had no criminal history, that he had strong ties to the
community, and that the presentence report found he had a low likelihood of recidivism.
The State further noted that the Defendant was charged with rape due to the victim’s lack
of consent, not that the victim was incapacitated.
The trial court found that the Defendant was a Range I offender1 and not a
favorable candidate for alternative sentencing pursuant to the relevant alternative
sentencing factors. The court applied three enhancement factors. See T.C.A. § 40-35-
114 (2019). The court applied enhancement factor (4), that the victim was particularly
vulnerable because of age or disability, because of the “vast difference” in age between
the victim and Defendant. Id. § 40-35-114(4). The court applied enhancement factor (7),
that the offense involved a victim and was committed to gratify the Defendant’s desire
for pleasure or excitement. Id. § 40-35-114(7). Additionally, the court applied
enhancement factor (28), that the Defendant was unlawfully in the United States when
the offense was committed, based upon the presentence report and the Defendant’s
admission to being in the United States unlawfully. Id. § 40-35-114(28). The court
determined that no mitigating factors were applicable. See id. § 40-35-113 (2019)
(subsequently amended). The court ordered the Defendant to serve a ten-year sentence in
confinement.
The Defendant filed a motion for new trial contending that the trial court erred by
excluding rebuttal evidence to impeach the victim’s credibility. The Defendant also filed
a renewed motion for judgment of acquittal and a motion to modify his sentence. The
court, after a hearing, denied the Defendant’s motions. This appeal followed.
1
The current rape statute requires that a defendant convicted of rape receive a sentence as, at least, a
Range II offender. Compare T.C.A. § 39-13-503(b)(2) (2025), with § 39-13-503(b) (2018) (subsequently
amended).
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The Defendant contends that the trial evidence is insufficient to support the
conviction, that the trial court erred by excluding rebuttal evidence to impeach the victim,
and that the court abused its discretion in sentencing by considering the age difference
between the victim and the Defendant as an enhancement factor. The State counters that
the evidence is sufficient to support the conviction, that the court did not err by excluding
rebuttal evidence, and that the court did not abuse its discretion in sentencing.
I
Sufficiency of the Evidence
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
“It is well established that the identity of the perpetrator is an essential element of
any crime.” State v. Miller, 638 S.W.3d 136, 158 (Tenn. 2021). The identity of the
perpetrator is a question of fact for the jury to determine. State v. Thomas, 158 S.W.3d
361, 388 (Tenn. 2005). Circumstantial evidence alone may be sufficient to establish the
perpetrator’s identity. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). We apply the
same standard of review, whether the evidence is direct or circumstantial. Dorantes, 331
S.W.3d at 379.
As relevant to the Defendant’s appeal, rape is the “unlawful sexual penetration of
a victim by the defendant or of the defendant by a victim . . . without the consent of the
victim and the defendant knows or has reason to know at the time of the penetration that
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the victim did not consent[.]” T.C.A. § 39-13-503(a)(2) (2018) (subsequently amended).
Sexual penetration is defined as
sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body or of any object
into the genital or anal openings of the victim’s, the defendant’s, or any
other person’s body, but emission of semen is not required[.]
Id. § 39-13-501(7) (2025).
Here, the victim testified that she went to bed and then woke to feel a man behind
her thrusting his penis into her vagina. Swabs of the victim’s vagina contained evidence
of semen and the Defendant’s DNA. The victim testified that she did not consent to have
sex with the Defendant. The victim’s conduct after the incident was consistent with the
behavior of a victim processing a sexual assault. The victim testified that she left Ms.
Enriquez’s house without confronting anyone, that she went to the hospital for an
examination shortly after arriving home, that she disclosed the assault to her mother and
sister, and that two days later she reported the assault to law enforcement. Although
witnesses at the trial provided conflicting testimony regarding whether the Defendant
entered the bedroom where the victim was sleeping, the jury resolved this conflict by
crediting the victim’s testimony. The Defendant’s conviction is further supported by the
DNA evidence. Viewing the evidence in the light most favorable to the prosecution, we
conclude that the jury could have found the essential elements of rape beyond a
reasonable doubt. The Defendant is not entitled to relief on this basis.
II
Exclusion of Evidence to Impeach the Victim
The Defendant contends that the trial court erred by excluding evidence to
impeach the victim’s credibility. Specifically, the Defendant sought to introduce
evidence that on two occasions the victim forgot things she did when she was intoxicated.
The first instance regarded a time when the victim was alleged to have sent a text
message to her boss’s husband. The second instance regarded a time when the victim
was alleged to have acted “irrationally” and began touching herself. The Defendant
asked the victim about these alleged occurrences during cross-examination, and the
victim said she did not remember the incidents and generally denied that they occurred.
The Defendant sought to introduce Ms. Enriquez’s testimony to rebut the reliability of the
victim’s recollection. The Defendant relies on Tennessee Rule of Evidence 611(a) in this
regard. The State relies upon the Defendant’s failure to comply with the conditions of
Tennessee Rule of Evidence 412 and the evidence’s failure to meet the relevance
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requirement of Tennessee Rule of Evidence 401.2 The following exchange occurred
during cross-examination of the victim:
[Defense Counsel]: Do you remember . . . going out and drinking
with [Ms. Enriquez] before, and waking up in the morning and
having them tell you you did something and you didn’t recall it?
....
[Victim]: No.
[Defense Counsel]: Do you remember an incident where you were
taking off your clothes in the house?
[Victim]: No.
[Defense Counsel]: And you don’t recall it?
[Victim]: No.
[Defense Counsel]: And [Ms. Enriquez] told you the next day?
[Victim]: No.
[Defense Counsel]: Do you recall texting your boss’s husband –
[Victim]: No.
[Defense Counsel]: -- when you guys were out drinking?
[Victim]: No.
[Defense Counsel]: And telling [Ms. Enriquez] about it the next
morning?
2
The State, in the trial court, relied on Tennessee Rule of Evidence 608(b), in addition to Tennessee Rule
of Evidence 412 to exclude the evidence. Rule 608(b) provides that “[s]pecific instances of conduct of a
witness for the purpose of attacking or supporting the witness’s character for truthfulness or
untruthfulness . . . may not be proved by extrinsic evidence.” The trial court did not rule on the
applicability of Rule 608(b) to the exclusion of the evidence of Ms. Enriquez’s proffered testimony, and
neither party addresses the rule on appeal.
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[Victim]: No.
[Defense Counsel]: Couldn’t believe you did it?
[Victim]: No.
[Defense Counsel]: You don’t think any of those things ever
happened?
[Victim]: No.
In a hearing outside the presence of the jury, the trial court considered whether the
Defendant could offer Ms. Enriquez’s testimony to impeach. Ms. Enriquez testified that
the victim, when she was intoxicated, sent a text message to the victim’s boss’s husband.
Ms. Enriquez said she did not recall the contents of the victim’s text message. Ms.
Enriquez also testified that, on another occasion, the victim, who was intoxicated, began
“touching herself” but did not recall it the next morning. The court held that the
testimony regarding the victim’s touching herself was sexual in nature and was prohibited
by Tennessee Rule of Evidence 412. The court also found that the text message to the
victim’s boss’s husband was “an [a]llusion to [the victim’s] sexual impropriety” and,
likewise, was prohibited Rule 412. The court noted that the parties entered an agreed
order providing that evidence of the victim’s prior sexual behavior would not be allowed
at the trial. The court also noted that the Defendant provided no prior notice to the court
of his intent to use this evidence, as required by Rule 412. Additionally, the court found
the evidence regarding the text message to be irrelevant and, alternatively, that the
potential for undue prejudice substantially outweighed any relevance. See Tenn. R. Evid.
401, 403.
Evidence is relevant and generally admissible 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,
402. Questions regarding the admissibility and relevance of evidence generally lie within
the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.” State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)).
A trial court abuses its discretion when it applies an incorrect legal standard or
reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence,
however, “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
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considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.
Tennessee Rule of Evidence 412 provides that although evidence of reputation or
opinion evidence of a victim’s sexual behavior or evidence of sexual behavior with an
individual other than the defendant is generally inadmissible, it may be admissible in
limited circumstances. Tenn. R. Evid. 412(c)(4). In order for the evidence to be
admitted, a motion complying with certain requisites must be filed, and the trial court
must determine at a hearing that the evidence relates to reputation or opinion regarding
the victim’s sexual behavior or is evidence of sexual behavior with someone other than
the defendant and is offered to rebut scientific or medical evidence. Id. 412(d). The
court must also determine that the probative value of the evidence of the evidence
outweighs its unfair prejudice to the victim. Id. 412(d)(4).
Tennessee Rule of Evidence 611(a) provides that “[t]he court shall exercise
appropriate control over the presentation of evidence and conduct of the trial when
necessary to avoid abuse by counsel.” Whereas the court has the essential responsibility
to “control the flow of evidence to the jury by ruling on the admissibility of evidence[,]”
Rule 611(a) gives the court “discretion to prevent lawyer misconduct.” Overstreet v.
Shoney’s, Inc., 4 S.W.3d 694, 702, 708 (Tenn. Ct. App. 1999). “[T]he propriety, scope,
manner and control of the examination of witnesses is a matter within the discretion of
the trial judge, subject to appellate review for abuse of discretion.” State v. Caughron,
855 S.W.2d 526, 540 (Tenn. 1993).
In the present case, the trial court concluded that the impeachment evidence that
the victim “touched” herself was sexual in nature and excluded pursuant to Rule 412.
Tenn. R. Evid. 412. The record reflects that the parties entered an agreed order that
evidence of the victim’s prior sexual behavior would not be allowed at the trial. It further
reflects that the Defendant provided no prior notice to the court of his intent to use this
evidence as required by Rule 412. The court did not abuse its discretion by excluding
this evidence pursuant to Rule 412.
The court also concluded that evidence regarding the victim’s text message to her
boss’s husband could be “an [a]llusion to [the victim’s] sexual impropriety” and should
be excluded pursuant to Rule 412. It is unclear whether this evidence is excludable
pursuant to Rule 412 because no record exists regarding whether the substance of the text
message was sexual in nature. However, the trial court did not abuse its discretion by
excluding this evidence pursuant to Tennessee Rules of Evidence 401. The victim
testified that she was intoxicated during that evening. Although she did not recall much
of what happened to her after she went to bed, she recalled waking in the night to feel the
Defendant thrusting his penis into her vagina, an act to which she testified that she did
not consent. Because the victim testified that she remembered the incident, Ms.
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Enriquez’s proffered testimony that the victim allegedly had drinking-induced memory
loss on a different occasion had no tendency to make the existence of any fact that is of
consequence to the determination of the victim’s recollection in this case more probable
or less probable than it would have been without the evidence. See Tenn. R. Evid. 401.
We also note that the State’s evidence was strong, including both testimonial and DNA
evidence. The court did not abuse its discretion by excluding this evidence. The
Defendant is not entitled to relief on this basis.
III
Sentencing
The Defendant contends that the trial court erred by considering the age difference
between the victim and the Defendant as a sentencing enhancement factor.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, the potential for rehabilitation or treatment, and the result of the
validated risk and needs assessment. T.C.A. §§ 40-35-103 (2025), -210 (2019); State v.
Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn.
1986); State v. Taylor, 744 S.W.2d 919, 920 (Tenn. Crim. App. 1987); see T.C.A. § 40-
35-102 (2025).
Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 707. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
The Defendant does not contest that he is a Range I offender who was found guilty
of a Class B felony. See T.C.A. §§ 40-35-105; 39-13-502(b)(1)(A). Tennessee Code
Annotated section 40-35-112(a)(2) (2025) provided that the Defendant’s sentencing
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range was “not less than eight (8) nor more than twelve (12) years.” The trial court
ordered the Defendant to serve a within-range, ten-year sentence. Because the court
considered the appropriate purposes and principles of the Sentencing Act and ordered the
Defendant to serve a within-range sentence, the court’s sentencing determination is
accorded a presumption of reasonableness.
The trial court applied enhancement factor (4), that the victim was particularly
vulnerable because of age or physical or mental disability. The court found this factor
applied because of the age difference between the victim, age nineteen, and the
Defendant, age forty-two. Id. § 40-35-114(4). The Defendant contends that the court
erred by applying this enhancement factor. The State noted that this factor was
applicable because the victim was vulnerable due to her intoxication. The court did not
address the victim’s intoxication as a basis for applying enhancement factor (4). We
agree with the Defendant that the court misapplied this enhancement factor if it was
based solely on an age difference. However, the misapplication of an enhancement factor
does not invalidate the sentence imposed unless the court wholly departed from the
Sentencing Act. Bise, 380 S.W.3d at 706. The Defendant does not contest the
application of enhancement factors (7) and (28). See T.C.A. §§ 40-35-114 (7) (“The
offense involved a victim and was committed to gratify the defendant’s desire for
pleasure or excitement[.]”); 40-35-114 (28) (“At the time the instant offense was
committed, the defendant was illegally or unlawfully in the United States[.]”) The court
considered the appropriate purposes and principles of sentencing and ordered the
Defendant to serve a within-range, ten-year sentence, which is two years less than the
maximum sentence for a Range I offender convicted of a Class B felony. Accordingly,
the court did not abuse its discretion in sentencing the Defendant. Bise, 380 S.W.3d at
706. The Defendant is not entitled to relief on this issue.
In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.
s/Robert H. Montgomery, Jr._ _
ROBERT H. MONTGOMERY, JR., JUDGE
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