State of Tennessee v. Henry Wayne Russell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 14, 2013 Session

STATE OF TENNESSEE v. HENRY WAYNE RUSSELL

Direct Appeal from the Criminal Court of Davidson County

No. 2007-C-2066A Monte Watkins, Judge

No. M2013-00166-CCA-R3-CD - Filed April 29, 2014

A Davidson County Grand Jury returned an indictment against Defendant, Henry Wayne

Russell, charging him in Counts One, Three, and Five with rape; and in Counts Two, Four,

and Six with statutory rape by an authority figure. After a jury trial, Defendant was found

guilty as charged in the indictment. The trial court merged the convictions in Count Two

with Count One; Count Four with Count Three; and Count Six with Count Five. The trial

court imposed a sentence of fifteen years for each count of rape as a Range II offender for

a total effective sentence of thirty years. On appeal, Defendant argues that: (1) the evidence

was insufficient to support his convictions for statutory rape by an authority figure; (2) the

trial court erred by denying his motion under Tenn. Rule Evid. 412 to allow evidence of

C.L.’s sexual behavior; (3) the trial court erred by advising Defendant that the State would

be permitted to cross-examine him concerning his prior felony drug convictions; (4) the trial

court erred by allowing a forensic social worker to testify concerning the victim’s medical

history; (5) the trial court erred in refusing to instruct the jury on the lesser-included offense

of attempted rape; and (6) the trial court erred in imposing consecutive sentencing. After a

thorough review of the record, we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT

W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Manuel Benjamin Russ, Nashville, Tennessee, for the appellant, Henry Wayne Russell.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Holmgren,

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

OPINION

I. Background

In accordance with the policy of this Court, we will refer to the minor victim by the

victim’s initials. C.L. testified that she was born in October 1992, and she began living with

her foster mother when she was nine years old. They lived at two different residences in

Nashville. At some point, C.L.’s foster mother began dating Defendant, and he would

sometimes spend the night at the foster mother’s residence. C.L. was twelve years old when

she first met Defendant. C.L. testified that she considered Defendant an “authority figure”

over her because when her foster mother was not present “or just if we was all out

somewhere and [Defendant] told me to do something, I was expected to do it.”

From the evening of February 22, 2007, until the morning of February 23, 2007,

C.L.’s foster mother left Defendant in charge of her two sons and C.L., who was fourteen at

the time, while the foster mother went to work. C.L. testified:

[The foster mother] had left the house and I had - - me and her two sons were

sharing a room, and I was asleep. And then [Defendant] came into my room

and he woke me up, and he led me into [the foster mother’s] bedroom.

And he told me to take off my clothes. And I stood there for a minute. And

then he told me to take off my clothes again. And I took off my clothes. And

then he sat on the bed and unbuttoned his pants and unzipped his pants.

Then he told me to perform oral sex on him. I said no. And he told me again,

and so I did it. And after that, he told me to lay on top of him, and he

performed oral sex on me while I performed oral sex on him.

C.L. testified that Defendant’s tongue and fingers touched her vagina. She said that this

continued for three to five minutes until Defendant’s cell phone rang. When Defendant

answered the phone, C.L. gathered her clothes and left the room.

C.L. testified that on the morning of February 23, 2007, her foster mother arrived

home from work and questioned her about whether anyone had touched her in an

inappropriate manner. C.L. told her foster mother that Defendant had made her perform oral

sex on him. C.L.’s foster mother then asked her the color of Defendant’s boxer shorts. After

C.L.’s foster mother confronted Defendant, she asked C.L. to come into the room and repeat

to Defendant what she said had happened. Defendant claimed that C.L. was lying and

“didn’t know what [she] was talking about.” C.L. testified that approximately five minutes

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later, her foster mother took her to Our Kids Clinic for an examination. She had not

showered or bathed from the time of the sexual activity until the examination. C.L. testified

that the individuals at the clinic questioned her about what happened. C.L. said that she was

sent to another foster home after she left the clinic. She was later interviewed on two

occasions by a man and a woman. C.L. initially told them that the sexual activity with

Defendant occurred one time. She eventually told them about other incidents.

C.L. testified that sexual activity occurred with Defendant on three other occasions

prior to the night of February 22-23, 2007. She said that the first instance occurred at her

foster mother’s home on Murfreesboro Road. C.L. testified:

[Defendant] came into my room. The boys were outside playing, and I was in

a room watching TV. And [Defendant] told me to come here. And he pulled

out his private part and he told me to get on my knees and perform oral sex on

him.

C.L. indicated that she did not want to perform oral sex on Defendant; however, he told her

that she would be taken away from her foster mother if she did not perform the act. C.L. then

performed oral sex on Defendant while he stood in the doorway with his hand on the back

of her head pushing it down. She said that she performed oral sex on Defendant until he

ejaculated.

C.L. testified that the second time sexual activity occurred with Defendant was when

Defendant picked her up after school. He was supposed to take her home but they drove to

the Taco Bell near Hickory Hollow Mall to get some food. C.L. testified that after receiving

the food, Defendant pulled around to the parking lot of the Taco Bell and told her to give him

oral sex. C.L. refused but Defendant again told her to perform oral sex on him, and C.L.

complied. C.L. testified that she performed oral sex on Defendant for approximately three

minutes. He was in the driver’s seat of the truck, and C.L. was in the passenger’s seat. C.L.

testified that Defendant’s pants were unbuttoned and unzipped, and he had one hand on the

back of C.L.’s head pushing it down while she was performing oral sex on him.

C.L. later told the daughter of her foster mother’s friend that she did not like

Defendant. When the girl asked why, C.L. responded: “Because he makes me give him

head.” The girl told C.L. that they should tell someone what happened. However C.L.

testified that she told the girl that she would get in trouble and be taken away from her foster

mother. The girl agreed not to say anything until C.L. was ready to reveal the information.

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C.L. testified that the third incident of sexual contact with Defendant occurred at the

home Defendant shared with his sister. C.L. had spent the night at the residence with

Defendant’s niece. C.L. testified that as she walked out of the shower and into the room to

get dressed, Defendant opened the door and asked what she was doing. She told Defendant

that she was getting dressed, and he then told her to give him oral sex. C.L. testified that she

said, “I don’t like doing this[,]” and Defendant said, “It won’t take that long.” She then

performed oral sex on Defendant, and he ejaculated into the towel that she had been using

and left the room. C.L. again testified that while she was performing oral sex on Defendant,

he had his hand on the back of her head pushing it down. She said that at the time, everyone

else in the residence was downstairs.

C.L. testified that she never engaged in any sexual activities with Defendant while he

was sleeping, and she never approached him in a sexual manner.

C.L.’s foster mother testified that C.L. began living with her when C.L. was ten years

old, and she remained C.L.’s foster mother for approximately four years. Prior to the time

of the offenses, she had planned to adopt C.L. C.L.’s foster mother testified that she met

Defendant in 2002, and they began dating shortly thereafter. Their relationship lasted for

four or five years. C.L.’s foster mother testified that C.L. met Defendant approximately a

year and a half after the foster mother began dating Defendant. C.L. and Defendant seemed

to have a good and appropriate relationship. C.L.’s foster mother did not notice any conflicts

between the two. She said that Defendant spent at least one night a week at her residence.

C.L.’s foster mother testified that on the night of February 22, 2007, until the morning

of February 23, 2007, she was working for a home health company caring for an elderly

patient. She also worked full time for CarMax. C.L.’s foster mother testified that when she

worked at night for the home health company, her mother usually cared for C.L. and the

foster mother’s two other children. When her mother could not care for the children,

Defendant would stay with them at night. The foster mother did not consider Defendant to

be C.L.’s caretaker or supervisor when the foster mother was around.

C.L.’s foster mother testified that Defendant picked C.L. up from a hair appointment

on one occasion in Hermitage. She said that it took a while for Defendant and C.L. to return

home, so she called Defendant and asked where they were. Defendant indicated that C.L.

had gone to Taco Bell with him. C.L.’s foster mother testified that Defendant and C.L.

arrived home approximately fifteen to twenty minutes later with food from Taco Bell.

C.L.’s foster mother testified that on February 22, 2007, she left for the home health

job at approximately 10:30 p.m. Her two children were asleep, and C.L. was almost asleep.

C.L.’s foster mother testified that there were no adults present at the residence when she left

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and that Defendant was supposed to arrived later to stay the night with them. She thought

that he arrived at the house at approximately 3:00 a.m. on February 23, 2007, because she

spoke with him by cell phone. C.L.’s foster mother testified that she had been calling

Defendant “all night” because she wanted someone there with the children, but she had not

received any response.

C.L.’s foster mother testified that during the time that she was trying to reach

Defendant, she had a conversation with Keela Hatchett concerning C.L. During the

conversation with Ms. Hatchett, C.L.’s foster mother received some information that caused

her to question C.L. the following morning when the foster mother arrived home between

7:00 and 7:15 a.m. C.L.’s foster mother testified that she asked C.L. if “anything had been

going on that shouldn’t be with an adult.” C.L. replied, “No.” C.L.’s foster mother

continued to question her about the matter until C.L. said, “Yes.” C.L. then told her that

Defendant had “licked” her. C.L.’s foster mother assumed Defendant had licked C.L. in her

private area. She asked C.L. if she had urinated or washed since Defendant licked her, and

C.L. said, “No.” C.L.’s foster mother told her to put some clothes over her pajamas so that

she could be taken to a hospital.

While C.L. was getting dressed, C.L.’s foster mother walked down the hall to her

bedroom where Defendant was sleeping and told him what C.L. had disclosed to her.

Concerning Defendant’s response, the foster mother testified:

He was, like, “What?” He was confused. And he was, like “Okay.” He got

up and went to the restroom and he had his clothes on and he came out. And

then he asked [C.L.] why she said that or whatever. And then he said, “Don’t

you know that we can go to jail? We can all go to jail?” or something like that

or “I can go to jail,” or something like that.

C.L.’s foster mother testified that Defendant denied any sexual activity with C.L. and said

that she was lying. However, Defendant later told her that C.L. “come on to him” and that

“he had licked his fingers and began fondling [C.L.’s ] vagina because she was dry[.]”

C.L.’s foster mother called C.L.’s mentor with the Department of Children’s Services

(DCS), who told the foster mother to take C.L. to Our Kids Clinic. C.L.’s foster mother had

also asked Defendant to go to the clinic for his mouth to be swabbed to prove his innocence.

Defendant then drove to the clinic separately and arrived shortly after C.L. and her foster

mother. C.L.’s foster mother testified that on the drive to the clinic, C.L. told her that she

and Defendant had “69’d,” which to the foster mother implied that Defendant and C.L. were

performing oral sex on each other at the same time. C.L.’s foster mother noted that

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Defendant was fond of the “69” position. After they arrived at the clinic, C.L.’s foster

mother informed the staff that Defendant had licked C.L., who was then examined.

C.L.’s foster mother testified that C.L. immediately went to another foster home after

the examination. The decision was made by C.L.’s foster mother and the DCS worker.

C.L.’s foster mother testified that C.L. had spent the night at the home of Defendant’s sister

on two or more occasions. She noted that C.L. told her that Defendant had made statements

to her that if she told about the sexual abuse, she would lose her foster mother.

C.L.’s foster mother testified that she was later contacted by Detective David Zoccola

with the Metropolitan Nashville Police Department. She told him that C.L. indicated that

Defendant had asked C.L. to perform oral sex on him. C.L.’s foster mother testified that she

continued her relationship with Defendant for approximately one year after the allegations.

She identified phone records from Defendant’s cell phone number which reflected calls

placed between her and Defendant from February 22, 2007, until the early morning hours of

February 23, 2007. One of the calls was answered at 2:59 a.m. on February 23, 2007. Prior

to that call, all of the calls to Defendant went unanswered or to his voice mail. When C.L.’s

foster mother spoke to Defendant at 2:59 a.m., he sounded inebriated. She asked Defendant

what time he arrived at her residence, and Defendant indicated that he had just arrived. He

also said that the children were asleep.

C.L.’s foster mother testified that she had not witnessed any conflict between C.L. and

Defendant, and C.L. had never seemed jealous of her relationship with Defendant. C.L.’s

foster mother said that she never indicated to C.L. that she would not adopt C.L. if the foster

mother continued her relationship with Defendant.

On cross-examination, C.L.’s foster mother testified that the phone records also

documented four telephone calls between her and Defendant between the hours of 2:00 a.m.

and 3:00 a.m. in addition to the call at 2:59 a.m. She also agreed that the call at 2:59 a.m.

was from Defendant. C.L.’s foster mother testified that Defendant eventually told her that

there was sexual contact between him and C.L. and that C.L. initiated the contact. She

admitted that she did not consider C.L. to be a truthful person, and DCS, police, and the

district attorney’s office were aware of her opinion. C.L.’s foster mother did not recall

Defendant ever being asked to pick up C.L. from school. She said that when C.L. stayed

overnight at Defendant’s sister’s house, Defendant was not living there at the time.

C.L.’s foster mother was not aware of any occasion that C.L. went to Hickory Hollow

Mall with Defendant, and she thought that they stopped at the Taco Bell on Murfreesboro

Road the day that he picked her up in Hermitage from a hair appointment. She testified that

while C.L. was living with her, C.L. had problems with “lying, fabricating stories.” She also

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had “a lot of emotional and attachment issues.” C.L.’s foster mother testified that C.L. was

not on medication at the time but had “lots of therapy and counseling.”

Lisa Dupree, a forensic social worker at the Our Kids Center in Nashville General

Hospital, testified that C.L. was examined at the center on February 23, 2007. C.L. reported

to Lorraine Gray, who was no longer employed at the center at the time of trial, that

Defendant had put his mouth on her “private parts.” C.L. indicated that Defendant had

“swiped his hands by her genital area, but did not touch in her genital area with his hands[.]”

Ms. Dupree testified that C.L. also said that approximately two months earlier, Defendant

asked her to put her mouth on his private parts. C.L. then disclosed the conduct to the

daughter of her foster mother’s friend. Ms. Dupree testified that C.L. indicated that her last

menstrual cycle ended two days prior to the exam. There was some blood noted during the

physical exam. Ms. Gray also documented that C.L. indicated that Defendant told C.L.,

“Don’t do this, you don’t want to leave don’t go telling nobody this, you’ll have to leave[.]”

Holly Gallion, a nurse practitioner with Our Kids Center, testified that she conducted

a medical examination of C.L. in February of 2007. According to the report, the sexual

contact between Defendant and C.L. occurred at approximately 3:00 a.m. She examined C.L.

within five to six hours of that contact. Since there were allegation of oral sex, Ms. Gallion

collected a rape kit from C.L. that consisted of swabs of C.L.’s genital area “to look for

specifically saliva oral secretions.” Ms. Gallion testified that she based her examination on

information that Ms. Gray obtained from C.L. She noted that C.L. had described having her

period a few days earlier, and Ms. Gallion noticed a little bit of bleeding. She determined

that a “scant” amount of blood was coming from C.L.’s cervix, but there was no internal

trauma. Ms. Gallion described C.L.’s physical examination as normal and that the exam

neither confirmed nor denied the possibility of any type of sexual contact. However, given

the history provided by C.L. Ms. Gallion did not expect to see any type of physical evidence

to confirm the sexual assault.

Special Agent Charles Hardy, a forensic scientist with the Tennessee Bureau of

Investigation (TBI) assigned to the serology and DNA unit, testified that he analyzed

evidence from the rape kit collected from C.L. The results of the swabs from C.L.’s vaginal

area “revealed the presence of alpha-amylase, which indicates the presence of saliva.” The

DNA profile that he obtained from the swabs matched that of C.L. Special Agent Hardy

noted that the swab could have contained C.L.’s skin cells, which could account for the

finding of C.L.’s DNA profile.

Detective David Zoccola of the Metropolitan Nashville Police Department was

assigned to investigate C.L.’s case through a DCS referral from Peggy Nunn. He testified

that an interview of C.L. was conducted on February 28, 2007, with Latoya Clark, a forensic

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interviewer from the Child Advocacy Center. Detective Zoccola was not present for the

interview but it was recorded. Concerning the interview Detective Zoccola testified:

I would have been furnished with a copy of that interview where the child

disclosed whatever information there was to disclose. And then I would have

been furnished with either verbally what happened at that first interview and

then eventually would have gotten a typed copy and a DVD or tape of that

interview. It would have involved me talking to [C.L.’s] foster mom and then

starting the process of investigating the allegations.

Detective Zoccola testified that he interviewed Defendant on March 9, 2007, at

Defendant’s place of business, a barbershop located at 8 th Avenue and Wedgewood in

Nashville. He said that Defendant agreed to talk with him, and the interview was recorded.

Defendant was aware of the allegations made by C.L., and Detective Zoccola explained to

him exactly what C.L. alleged had occurred on February 22-23, 2007. In the recording

Defendant explained his relationship with C.L. He said that they got along well, and he

never disciplined her. Defendant told Detective Zoccola that C.L. considered him to be an

authority figure, someone that she would talk to when in trouble, and someone that she would

confide in. Defendant also referred to himself as “a friend, a father figure, someone in an

authoritative position.”

In the interview, Defendant initially said that he did not touch C.L. After speaking

with Detective Zoccola for more than an hour, Defendant maintained that C.L.’s allegations

were false and that he was not guilty of “any type of sexual advancement towards her.”

When Detective Zoccola asked if C.L. had made any sexual advancement toward him,

Defendant without hesitation replied, “Yes.”

Defendant told Detective Zoccola that on the night of February 22-23, 2007, he

stopped at a Jack-in-the-Box before going to C.L.’s foster mother’s house. He ate the food,

and then went to bed. Defendant said that he had been drinking and became sick. He went

to the bathroom and vomited and then went into the kitchen to get some water to rinse his

mouth. Defendant claimed that he went back to bed and woke up sometime later to find C.L.

performing oral sex on him. At first, Defendant thought that he was dreaming, but when he

realized what was happening, he told C.L. to go back to her room. Defendant said that when

he asked C.L. what she was doing, “she just kind of shrugged her shoulders, like

nonchalant.” Defendant admitted that he was intoxicated that night.

Defendant said that the contact with C.L. occurred only one time. Later in the

interview he explained that when he woke up C.L. was not wearing any clothes. When

Detective Zoccola asked Defendant what he was wearing and whether C.L. had to remove

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or manipulate his underwear to access his penis Defendant said that he was wearing his boxer

shorts. When questioned again about what C.L. was wearing Defendant said that “[s]he had

on - she might have had on a shirt, but she - once again, I told you when I had touched her

person[], being her vaginal area, that’s when I really came to, and it was like, this is more

vivid than what it really is - is this is not a dream.” When Detective Zoccola repeatedly told

Defendant that he needed to tell everything that happened, Defendant responded:

Once I had laid down to go to sleep, like I said, she, uh - whenever time she

came in there, you know, I was, in the dream I was having oral sex - um, I was

receiving oral sex, and - I went to touch her, but noticed that it was dry, so,

being that it was dry, I did one of those common things that either a man or a

woman would do, and basically, I took and - basically, I did like that, [licked

his hand] and I touched her, and when I - that’s when I really just awoke, and

was like, hold up - what’s going on.

Defendant told Detective Zoccola that there was no further talking, kissing, fondling,

or removal of each other’s clothing, or any other sexual contact between him and C.L.

Detective Zoccola later spoke with Defendant about giving a DNA sample to compare to

anything found on the swabs taken from C.L.’s body. He informed Defendant that he did not

have to give the samples and that he was free to speak with an attorney before giving them.

Detective Zoccola also explained how the swabs from C.L.’s vaginal area might show the

presence of Defendant’s saliva. Defendant replied, “But then - I know- I know I didn’t stick

my fingers in her, but me touching my mouth and touching her vagina - that can transfer

saliva right there.”

Based on some discrepancies between C.L.’s interview and Defendant’s interview,

Detective Zoccola interviewed C.L. on March 14, 2007. Peggy Nunn from DCS was also

present when he interviewed C.L. at the Child Advocacy Center. Initially, Ms. Nunn

interviewed C.L. alone and emphasized the need for C.L. to be honest with her. When asked

if the sexual abuse had occurred on any previous occasions, C.L. said that the incident on

February 22-23, 2007, was “the first time.” Ms. Nunn then asked C.L. if anything had “ever

been going on that led up to this,” C.L. replied, “Well, not really, but one time before he

asked me to put my mouth on his private part, but I didn’t do it.”

Ms. Nunn then asked C.L. again about the incident that occurred on February 22-23,

2007. C.L. told Ms. Nunn that the incident occurred at approximately 3:00 a.m. She was in

the bedroom asleep with her foster brothers when Defendant walked in and told her to “come

here.” C.L. said that Defendant took her into the other bedroom and told her to lie down.

He then removed her pants and underwear and placed his mouth on her “private part.” C.L.

said that she tried to scoot back, but every time she did so, Defendant pulled her closer.

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Defendant instructed her to stop scooting back, and then his phone began ringing. C.L. said

that Defendant did not answer until the third time that the phone rang. C.L. then picked up

her clothes and left. C.L. told Ms. Nunn, “And he was like, where you going?” Then C.L.

told him that she was going back to her room, Defendant “was like, man, just forget you.

Go on.”

C.L. eventually told Ms. Nunn that Defendant asked her if she wanted to “sixty-nine?”

C.L. said that she asked Defendant what the term meant, and he told her that it was when a

girl and a boy perform oral sex on each other at the same time. Ms. Nunn told C.L. that

Detective Zoccola had interviewed Defendant and that his story was different than hers.

When asked again if any sexual behavior had previously occurred with Defendant, C.L.

responded, “Not that I can remember.” When asked what she thought Defendant would say,

C.L. said that Defendant would say that she came on to him in order to keep himself out of

trouble.

Detective Zoccola then joined Ms. Nunn and C.L. in the interview room and asked

if C.L. had any questions for him. C.L. asked if Defendant “admitted to doing it.” Detective

Zoccola then told C.L. that Defendant had told him about a different kind of activity, and he

told C.L. that he could not help her unless she was completely honest with him. He told C.L.

that Defendant claimed that she came into the bedroom and performed oral sex on him while

he was sleeping. However, C.L. insisted that Defendant was untruthful and that he had asked

her previously to perform oral sex on him but she refused. C.L. told Detective Zoccola that

the request occurred at Defendant’s house one day after he had picked her up from school

while she was waiting for her foster mother to pick her up. C.L. denied performing oral sex

on anyone. Detective Zoccola explained to C.L. that there were problems with her case

because things were so different, and he could not understand why Defendant admitted to the

different sexual activity when it would still get him into trouble. C.L. insisted that although

Defendant asked her to “sixty-nine” with him, she did not comply.

Detective Zoccola again told C.L. that he wanted her to be one-hundred percent

honest and to tell the truth. C.L. then asked to speak with Detective Zoccola alone. She told

him that on the night of February 22-23, 2007, Defendant walked into her bedroom where

she and her foster brothers were sleeping and woke her up. He took her into the other

bedroom, placed her on the bed, and over her objections, began to perform oral sex on her.

C.L. said that Defendant’s cell phone rang, and he stopped to look at it but did not answer.

He continued performing oral sex on C.L. and the phone rang again. Defendant looked at

the phone but did not answer and returned his attention to C.L. C.L. told Detective Zoccola

that when she resisted Defendant, he forced her to perform oral sex on him as she sat on the

edge of the bed. When the cell phone rang a third time, Defendant answered. C.L. then

picked up her clothes and returned to her room.

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Detective Zoccola told C.L. that if she performed oral sex on Defendant any other

times, then she should tell him. C.L. finally said, “It has happened.” When asked how many

times she had performed oral sex on Defendant, C.L. replied, “Three.” C.L. told Detective

Zoccola that the first incident occurred near the beginning of the school year in 2006 at her

foster mother’s house while her foster mother was at work. She had just gotten out of the

shower and Defendant was waiting in her room. C.L. said that Defendant told her to “come

here,” and he forced her to perform oral sex on him as he touched her chest. The second

incident occurred during the second semester of school in Defendant’s truck in the parking

lot at the Hickory Hollow Mall. C.L. said that Defendant asked her to “do it,” and she said

no, but when he told her again to “do it,” she complied. Defendant then drove her home. A

third incident occurred at Defendant’s house after Christmas break in January of 2007.

Tekiyah Cooper testified on behalf of Defendant. She previously dated Defendant,

and she remained in contact with his mother. She also spoke with Defendant during his

incarceration in Kentucky. Ms. Cooper testified that she was also familiar with C.L. through

Ms. Cooper’s employment with Corrections Corporation of America at the minimum security

jail in Nashville. Ms. Cooper testified that she met the victim when C.L. was an inmate in

the “female building” under Ms. Cooper’s supervision. She and C.L. would have in-depth

conversations while C.L. was incarcerated. Concerning C.L.’s character for truthfulness, Ms.

Cooper testified:

I believe that in the beginning she wasn’t as truthful with me, because she

didn’t know me. But once she got to know that I required the truth, she would

be more truthful with me. So, in the beginning if she lied to me she would

receive sanctions. But, after that once she got to know who I am and how I

like things, if I asked her a question I believe she will tell me the truth.

Patricia Terrell testified that she was employed as a guidance counselor at the

Margaret Allen Middle School in 2006-2007. C.L. was one of her former students. Ms.

Terrell testified that she interacted with C.L. on an “as-need basis.” She estimated that she

spoke with C.L. at least fifteen to twenty times. Concerning C.L.’s character for truthfulness,

Ms. Terrell testified:

Well, I had incidents - - it was some incidents where there was some truth not

told; whether it would be a parent conference, I believe, I had with the

guardian at the time, regarding, you know, work ethic, or different things like

that, or just general things - - a trip, I believe, she told me she took that she did

not take. So, it was things like that.

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II. Analysis

A. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence for his convictions of statutory

rape by an authority figure. When an accused challenges the sufficiency of the convicting

evidence, our standard of review is whether, after reviewing the evidence in a light most

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

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions

concerning the credibility of the witnesses, and the weight and value to be given the evidence

as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932

(Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the evidence. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest

legitimate view of the evidence and all inferences therefrom. Id. Because a verdict of guilt

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

accused has the burden in this Court of illustrating why the evidence is insufficient to support

the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

“[D]irect and circumstantial evidence should be treated the same when weighing the

sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

Tenn. Code Ann. 39-13-532 provides:

(a) Statutory rape by an authority figure is the unlawful sexual penetration

of a victim by the defendant or the defendant by the victim when:

(1) the victim is at least thirteen (13) but less than eighteen

(18) years of age;

(2) the defendant is at least four (4) years older than the

victim; and

(3) the defendant was, at the time of the offense, in a

position of trust, or had supervisory or disciplinary power

over the victim by virtue of the defendant’s legal,

professional or occupational status and used the position

of trust or power to accomplish the sexual penetration; or

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(4) the defendant had, at he time of the offense, parental or

custodial authority over the victim and used the authority

to accomplish the sexual contact.

Regarding a position of trust, the Tennessee Supreme Court has stated:

The position of parent, step-parent, babysitter, teacher, coach are but a few

obvious examples. The determination of the existence of a position of trust

does not depend on the length or formality of the relationship, but upon the

nature of the relationship. Thus, the court should look to see whether the

offender formally or informally stood in a relationship to the victim that

promoted confidence, reliability, or faith.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996) (emphasis added).

In State v. Margaret L. Holt, No. E2010-02128-CCA-R3-CD, 2012 WL 826523, *16

(Tenn. Crim. App. Mar. 13, 2012), this court noted:

The statute regarding statutory rape by an authority figure does not require that

a defendant used his or her position of authority to force the sexual

penetration; instead, the statute states only that the defendant used his or her

power to accomplish the sexual penetration. See State v. Bryan Dale Farmer,

No. M2007-01553-CCA-R3-CD, 2008 WL 3843847, at *7 (Tenn. Crim. App.,

at Nashville, Aug. 18, 2008) (stating that the defendant used his position as a

teacher or coach to accomplish the offense of sexual battery by an authority

figure), perm. app. denied, (Tenn. March 2, 2009). Accordingly, if the

evidence shows that a defendant used his or her position to cultivate an

improper relationship with the victim and to bring about or bring to completion

sexual penetration with the victim, then this evidence is sufficient to support

the conviction for statutory rape by an authority figure. See id. at *8.

Defendant contends that the evidence was insufficient to support his convictions for

statutory rape by an authority figure because the State failed to show that Defendant

“possessed any ‘parental or custodial authority’” over C.L. Defendant further contends that

the State failed to show that even if Defendant had “parental or custodial authority” over

C.L., that he used “this ‘parental or custodial authority’ in order ‘to accomplish the sexual

penetration’ as the statute required.” We disagree.

Although C.L. testified as to four incidents of sexual contact with Defendant, the State

elected to proceed on three of those incidents. Viewing the evidence in a light most

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favorable to the State, the proof showed that Defendant and C.L.’s foster mother were dating,

and C.L’s foster mother had planned to adopt her. C.L. testified that she considered

Defendant an “authority figure” over her because when her foster mother was not present “or

just if we was all out somewhere and [Defendant] told me to do something, I was expected

to do it.” C.L.’s foster mother acknowledged that when her mother could not care for C.L.

and the other children, Defendant would stay with them at night. However, C.L.’s foster

mother did not consider Defendant to be C.L.’s caretaker or supervisor when the foster

mother was present. During his interview with Detective Zoccola, Defendant said that C.L.

considered him to be an authority figure, someone that she would talk to when in trouble, and

someone that she would confide in. Defendant also referred to himself as “a friend, a father

figure, someone in an authoritative position.”

During each of the three incidents in this case, C.L. was in Defendant’s care. C.L.

testified that the first incident of sexual contact with Defendant occurred in Defendant’s truck

after he had picked her up after school. Defendant was supposed to take C.L. home, but he

drove her to the Taco Bell near Hickory Hollow Mall to buy some food. After receiving the

food, Defendant pulled into the parking lot and told C.L. to perform oral sex on him, and

C.L. complied.

The second incident of sexual contact between Defendant and C.L. occurred at the

home Defendant shared with his sister. C.L. had spent the night at the residence with

Defendant’s niece. C.L. testified that as she walked out of the shower and into the room to

get dressed, Defendant opened the door and asked what she was doing. He then told her to

give him oral sex. When C.L. told Defendant, “I don’t like doing this[,]” Defendant said, “It

won’t take that long.” C.L. then performed oral sex on Defendant, and he ejaculated into the

towel that she had been using.

During the third incident that occurred sometime during February 22-23, 2007, C.L.’s

foster mother left Defendant in charge of her two sons and C.L., who was fourteen at the

time, while the foster mother went to work. C.L. testified that Defendant came into the room

that she shared with her two foster brothers and woke her up. He then led her into the foster

mother’s bedroom and told her to remove her clothing. C.L. stood there for a moment, and

Defendant again told her to remove her clothing. C.L. took off her clothes, and Defendant

sat on the bed and unbuttoned his pants and unzipped his pants. C.L. testified that Defendant

told her to perform oral sex on him, and she said, “No.” Defendant again told her to perform

oral sex on him, and she complied. After that, Defendant told her to lay on top of him, and

he performed oral sex on her while she performed oral sex on him. C.L. testified that

Defendant’s tongue and fingers touched her vagina. She said that this continued for three

to five minutes until Defendant’s cell phone rang. When Defendant answered the phone, C.L.

gathered her clothes and left the room. At trial, C.L. testified that she had removed her

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clothes “[b]ecause [Defendant] told me to. And he used to tell me that if I told anybody, that

I would be taken away from [her foster mother].”

At some point, C.L. told a friend that she did not like Defendant. When the friend

asked why, C.L. responded: “Because he makes me give him head.” When the friend told

C.L. that she should tell someone what happened, C.L. said that she would get in trouble and

be taken away from her foster mother.

Based on our review of the evidence, we conclude that the evidence was sufficient to

support beyond a reasonable doubt Defendant’s convictions for statutory rape by an authority

figure. As pointed out by the State, Defendant used his position of authority to cultivate an

improper relationship with C.L. Defendant had, at the time of the offenses, parental or

custodial authority over C.L. and used the authority to accomplish the sexual penetration as

the statute required. Defendant is not entitled to relief on this issue.

B. Denial of Defendant’s Rule 412 Motion

Defendant argues that the trial court erred in denying his motion to admit evidence of

C.L.’s prior sexual behavior under Rule 412 of the Tennessee Rules of Evidence. More

specifically, he asserts that the trial court should have allowed testimony that C.L. dressed

provocatively in front of Defendant and that she attempted to hug him on one occasion.

Defendant also contends that evidence of C.L.’s prior sexual behavior toward other males

and evidence of her prior knowledge of sexual matters should have been admitted. Finally,

Defendant argues that because statutory rape by an authority figure is not one of the

enumerated offenses covered by Tenn. R. Evid. 412, the rape shield law, the trial court

should have admitted evidence of C.L.’s prior sexual behavior.

Tennessee Rule of Evidence 412 governs the admissibility of evidence about a sex

crime victim’s prior sexual acts. It is a rule of relevance, see State v. Brown, 29 S.W.3d 427,

430 (Tenn. 2000), and we will not overturn a trial court’s Rule 412 ruling absent an abuse

of discretion. State v. Sheline, 955 S.W.2d 42, 46 (Tenn. 1997). Rule 412 provides, in

pertinent part, as follows:

(c) Specific instances of conduct. Evidence of specific instances of a

victim’s sexual behavior is inadmissible unless admitted in accordance

with the procedures in subdivision (d) of this rule, and the evidence is:

(1) Required by the Tennessee or United States Constitution,

or

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(2) Offered by the defendant on the issue of credibility of the

victim, provided the prosecutor or victim has presented

evidence as to the victim’s sexual behavior, and only to

the extent needed to rebut the specific evidence presented

by the prosecutor or victim, or

(3) If the sexual behavior was with the accused, on the issue

of consent, or

(4) If the sexual behavior was with persons other than the

accused,

(i) to rebut or explain scientific or medical

evidence, or

(ii) to prove or explain the source of semen,

injury, disease, or knowledge of sexual

matters, or

(iii) to prove consent if the evidence is of a

pattern of sexual behavior so distinctive

and so closely resembling the accused’s

version of the alleged encounter with the

victim that it tends to prove that the victim

consented to the act charged or behaved in

such a manner as to lead the defendant

reasonably to believe that the victim

consented.

Tenn. R. Evid. 412(c).

Even if one of the above considerations is satisfied, the trial court must nevertheless

conclude that the probative value of the evidence outweighs its unfair prejudice to the victim.

See id. 412(d)(4). “As with other evidentiary rulings, the admissibility of the evidence

[pursuant to Rule 412] rests in the discretion of the trial court.” Sheline, 955 S.W.2d at 46.

Our supreme court has stated,

Although “[t]he right to present witnesses is of critical importance . . . it is not

absolute. In appropriate cases, the right must yield to other legitimate interests

-16-

in the criminal trial process.” Specifically, “[i]n the exercise of this right, the

accused, as is required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.”

Brown, 29 S.W.3d at 432 (Tenn. 2000) (quoting Chambers v. Mississippi, 410 U.S. 284, 295,

93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)).

In a pre-trial hearing, Marcie Austin testified that she previously owned a company

called Realistic Interventions and had twenty-one years of psychology and counseling

experience. Although she was not licensed, Ms. Austin was qualified as an expert in the field

of children’s sexual issues. Ms. Austin testified that her company provided “in-home

interventions, such as stabilization and privacy situations, preservation services, reunification

services, adoption studies, home studies, supervised therapeutic visits, parenting assessments.

Just a number of things.” Ms. Austin testified that she worked closely with the Department

of Children’s Services (DCS), and she began working with C.L. when C.L. was nine or ten

years old and worked with her for an approximate total of seven years. She said that C.L.

came in for “therapeutic, supervised therapeutic visits with her maternal grandmother[.]”

Ms. Austin specifically noted that she did not conduct any psychological tests with C.L.

Concerning her observations of C.L., Ms. Austin testified that supervised therapeutic

visits with C.L. stopped because C.L.’s maternal grandmother decided that she did not want

to follow through with the visits. After C.L. began living with her foster mother, Ms. Austin

followed her as a “mentor” for a year. Ms. Austin testified that C.L. had a history of abuse

and neglect by her family members. Concerning C.L.’s behavior, Ms. Austin testified:

Within the first week of knowing [C.L.], [she] was placed at [the foster

mother’s] house, her first foster home, she was witnessed humping her body

on [a] neighborhood boy. From that point on there [were] constant issues with

her at school doing inappropriate things, sexually and behaviorally. This has

gone on, and on, and on. There is a very strong history of - - it comes to a

point where I realized, in working with her, the best I could do was try to help,

kind of, restructure her thinking of what she was trying to function on

behaviorally from what she (unintelligible) because it is very difficult to get

the truth out of [C.L.]. And I’m sorry [C.L.] (unintelligible) I will say that on

a personal level I love her as a child dearly, but I will say I cannot believe

anything that comes out of her mouth. She is the first child in my twenty-one

years that I’ve worked with that I would say that about. So I cannot be a good

witness to the court to prosecute anyone that has been alleged to do anything

to her because of the very strong history, and the acting out, and the familial

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history, too. [C.L.] needs help. She’s going to need help for many, many

years. I don’t know that [C.L.] will ever function totally appropriately as an

adult[], what we consider appropriately in society.

On cross-examination, Ms. Austin testified that the “humping” of little boys by C.L.

occurred when C.L. was nine or ten years old. The allegations involving the present case

occurred when C.L. was fourteen years old. Ms. Austin testified that she had no particular

knowledge or information of any sexual behavior involving C.L. that occurred within a

seventy-two hour time frame on February 23, 2007. However, Ms. Austin noted that C.L.

dressed provocatively at nine or ten years old and that she had “absolutely no boundaries

physically or mentally.” Ms. Austin testified that other teenagers told her that C.L. had sex

“with boys in the bathrooms and stuff at school” when she was fourteen to fifteen years old.

She said that C.L. had been physically abused in one of her foster homes. Ms. Austin felt

that C.L. should be tested for “sociopathic behaviors,” and she said that it was very difficult

for C.L. to tell the truth.

On redirect examination, Ms. Austin testified to the following concerning prior

incidents of sexual behavior by C.L.:

Dressing provocatively; approaching men in inappropriate manners, which

means, like, taking your body and touching them, not necessarily humping

them in front of me, but no boundaries. Like, you would be a man standing

there, and her come up and be as close to you as that she’s touching your knee

and your leg. Putting her hands on your chest your hair, and, you know, sexual

acting out playfully that’s very - - could be considered, you know, iffy-like if

the person didn’t know her, if that makes sense. But by the trained

professional you know that that’s not appropriate behavio[]r.

Kisha Cox, Assistant Principal at I.T. Creswell, Arts Magnet Middle School, testified

that she met C.L. when Ms. Cox was a sixth grade teacher at Wharton Middle School.

Concerning C.L.’s behavior at school, Ms. Cox testified:

The first incident, that I can remember, I caught [C.L.] in the second floor

restroom, tongue kissing another male student. And I, also, contacted [C.L.’s

foster mother] when this incident occurred. This is when she was a sixth

grader.

Another incident is, one day I was sitting at my desk - - and I always kept

[C.L.] in close proximity of me because of her promiscuous behavior.

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***

And so I was sitting at my desk and she was talking about the genitalia areas

of her foster mother’s oldest son. And I, kind of, eavesdropped and listened

to the conversation. And she said she had saw him in the restroom and he had

a big genitalia area. And so, after I heard it, I asked [C.L.], you know, “Why

are you having these conversations in the classroom?” And she didn’t see

anything wrong with those types of conversations.

Ms. Cox noted that C.L. would frequently “present herself in a sexual manner to the

young men” in Ms. Cox’s classroom. Parents called Ms. Cox and asked her to keep C.L.

away from their child. Concerning C.L.’s truthfulness, Ms. Cox testified:

I observed, in our - - my personal conversations with [C.L.], [C.L.] was not

truthful about the incidents that I even witnessed with my own eyes. She had

a way of being creative with the truth. Even if you saw her commit the act

with your own eyes she had a way of painting a totally different picture in

which you saw [sic]. And so, therefore, it was like pulling teeth to get the truth

out of [C.L.]. And only when I called [C.L.’s foster mother] is when the truth

would start surfacing, slowly but surely. But it was a task getting the truth out

[of] her, even when I witnessed and heard these incidents.

Ms. Cox testified that all of the incidents occurred before February 23, 2007, when C.L. was

twelve years old and in the sixth grade.

On cross-examination, Ms. Cox testified that C.L. initiated the incident of french

kissing with a boy in the bathroom. She said that the boy did not like it and reported the

incident to her. C.L. told Ms. Cox that she liked the boy and wanted to kiss him. Ms. Cox

testified that C.L. had never reported that she had been raped or sexually molested. She

agreed that sexual behavior among girls thirteen and fourteen years old was not unusual. Ms.

Cox testified that C.L. had a “wide knowledge of sexual activities” at the age of twelve.

C.L.’s foster mother testified that she became C.L.’s foster parent on April 17, 2003.

Concerning C.L.’s sexual behavior, C.L.’s foster mother testified that C.L. saw her youngest

son when he was approximately three years old in the bathroom. C.L. then went to school

and talked about “how big his penis was and how he was all hard[.]” The foster mother also

caught C.L. putting a tattoo on her friend’s bottom. C.L.’s foster mother testified that while

C.L. was attending St. Vincent de Paul Catholic School, she told the foster mother that her

grandmother had raped her. C.L. was approximately ten years old at the time. She also told

other children at school about the incident. C.L.’s foster mother testified:

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She told me that she and her grandmother were laying in the bed, and - - she

said she don’t [sic] sleep in panties, so her grandmother was rubbing on her

[private area]. And the only thing that stopped her from doing it was someone

knocked on her door.

C.L.’s foster mother testified that she was called to St. Vincent’s School for an

emergency meeting with the principal and two other parents in August of 2003. The

individuals were concerned because C.L. was “telling them that she had been raped over the

summer and that she had come on her period.” She said that the other parents wanted to

remove their children from the school because they were concerned that C.L. was “a little

more [sexually] advanced than their children.” C.L.’s foster mother later learned that C.L.

was not truthful about being raped. She testified that on one occasion, she saw C.L. at a

friend’s house “all crawled up on” an older man that C.L. did not know. C.L.’s foster mother

also said that C.L. had an old cell phone that she had been pretending to talk on for two days

while at the friend’s house, and she made the phone ring. The phone was dead when the

foster mother took possession of it.

On cross-examination, C.L.’s foster mother testified that she had no knowledge of

C.L. being involved in any type of sexual activity within seventy-two hours of the incident

with Defendant.

At the Rule 412 hearing, Defendant presented no proof of C.L.’s report that she had

also been molested by her grandfather, or that she had made sexual advances toward a man

named “Mark” at a New Year’s gathering.

In denying Defendant’s 412 motion, the trial court made the following findings:

During the suppression hearing in the instant case, the Court heard testimony

that a previous report had been made regarding allegations of sexual abuse by

her maternal grandfather on or about January 26, 2001. The Court also heard

evidence that the alleged victim has demonstrated inappropriate sexual

behavior and issues with truthfulness.

In the instant case, the defendant seeks to introduce the evidence regarding the

alleged victim’s sexual behavior to challenge her credibility and prior sexual

knowledge. However, the Court finds that the probative value of the evidence

does not outweigh its unfair prejudice to C.L.

***

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The Court heard the arguments of respective counsel and reviewed relevant

case law. Applying the above legal standard, the Court finds that the

defendant has complied with the procedural requirements of Tennessee Rules

Evidence 412(d). The Court also finds that the Tenn. R. Evid. 412 is a rule of

exclusion. Therefore, the evidence of prior sexual abuse and sexual

encounters are not admissible. The defendant’s motion for introduction of

Tenn. R. Evid. 412 evidence is DENIED.

Defendant filed a subsequent motion to reconsider the Rule 412 motion. The trial

court denied the motion to reconsider and found:

In the instant case, the defendant seeks to introduce the evidence regarding the

alleged victim’s sexual behavior to challenge her credibility and prior sexual

knowledge . However, the Court finds that the probative value of the evidence

does not outweigh its unfair prejudice to C.L.

During the suppression hearing in the instant case, the Court heard testimony

from Marcie Austin, Kesha [sic] Cox, and [C.L.’s] foster mother regarding the

alleged victim’s previous sexual behavior and credibility. The alleged victim’s

previous sexual behavior activity took place several years before the alleged

incident.

Therefore, the Court finds that the evidence of prior sexual abuse and sexual

encounters are not admissible. The defendant’s motion for introduction of

Tenn. R. Evid. 412 evidence is once again denied.

Later on, during trial, Defendant sought to admit testimony by C.L.’s foster mother

that C.L., on one occasion, walked into a room in front of Defendant wearing “a spaghetti

strap type little nightgown and her breasts were exposed at the top.” She then attempted to

approach Defendant and give him a hug. C.L.’s foster mother also testified that on another

occasion, C.L. “had on some pants that I told her several times not to wear anymore where

her butt was kind of hanging out and she bent over [near Defendant].” The trial court

excluded the testimony finding that it was “getting into some 412 issues.”

We hold that the trial court committed no error in excluding the evidence that

Defendant sought to admit. As pointed out by the State, none of the instances of sexual

behavior reported by the witnesses resemble the allegation by Defendant that C.L. performed

oral sex on him. Nor does it resemble the acts of fellatio as alleged by C.L. C.L.’s

provocative nature of wearing clothing and her behavior with other children several years

before the present offenses is not relevant to the issue of Defendant’s guilt or innocence in

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raping C.L. See State v. Douglass Leon Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL

1281857 (Tenn. Crim. App. Mar. 28, 2013). Defendant is not entitled to relief on this issue.

Defendant further contends that the trial court erred in admitting the evidence because

Tenn. R. Evid. 412 is not applicable to the offense of statutory rape by an authority figure.

We agree. Tenn. R. Evid. 412 provides:

Notwithstanding any other provision of law, in a criminal trial, preliminary

hearing, deposition, or other proceeding in which a person is accused of an

offense under Tenn. Code Ann. §§ 39-13-502 [aggravated rape], 39-13-503

[rape], 39-13-504 [aggravated sexual battery], 39-13-505 [sexual battery], 39-

13-507 [spousal sexual offenses], 39-13-522 [rape of a child], 39-15-302

[incest], 39-13-506 [statutory rape], 39-13-527 [sexual battery by an authority

figure], 39-13-528 [solicitation of minors for sexual acts], or the attempt to

commit any such offense. . .

Even though Rule 412 is not applicable to the offense of statutory rape by an authority

figure, any error in not admitting the evidence was harmless. Evidence of consent as proven

by C.L.’s sexual history would be irrelevant. Defendant argues that he “presented the jury

with the defense that this sexual contact [with C.L.] was consensual and was, therefore,

neither Rape, nor was it Statutory Rape by an Authority Figure.” However, as pointed out

by the State, consent is not a defense to statutory rape. In State v. Roland R. Smith, No.

M2004-01457-CCA-R3-CD, 2005 WL 1541874 (Tenn. Crim. App. June 29, 2005), this

Court stated: “The purpose of the crime of statutory rape is to punish persons old enough to

know better from taking sexual advantage of those deemed too young to effectively consent.”

Id. at *11, overruled on other grounds by State v. Collier, 411 S.W.3d 886 (Tenn. 2013).

Consent is not a defense to statutory rape. State v. McKnight, 900 S.W.2d 36, 48 (Tenn.

Crim. App. 1994). Moreover, we have already determined that the evidence was not relevant

to the issue of Defendant’s guilt or innocence in raping C.L. Defendant is not entitled to

relief on this issue.

C. Impeachment with Prior Felony Drug Convictions

Defendant next argues that the trial court improperly allowed Defendant’s prior felony

drug convictions to be used as impeachment. Defendant cites State v. Waller, 118 S.W.3d

368, 371 (Tenn. 2003), for the proposition that drug crimes do not involve dishonesty or false

statement, and he asserts that the trial court “applied an incorrect legal standard when making

its ruling” and that the error “prejudiced his defense.” The State concedes that the trial court

erred by ruling that Defendant could be impeached with the prior felony drug convictions but

maintains that the error was harmless. We agree with the State.

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On May 29, 2009, the State filed a notice of intent to impeach Defendant with the

following prior felony convictions: (1) felon in possession of a handgun (September 4, 2003);

(2) possession of a controlled substance with intent to sell or deliver (November 6, 2003);

(3) possession of cocaine (February 16, 1996); (4) sale of cocaine (September 29, 1994); and

(5) possession of cocaine (January 12, 1994). It was also noted by the State that Defendant

had pending federal drug charges for which he was arrested while on bond for the offenses

in the present case.

Concerning Defendant’s prior felony convictions, the trial court found:

And I did read State v. Waller, a case involving one charge of counterfeit drug

sale, and he was - - the Court had ruled that his prior drug convictions were

admissible, but it was harmless error in this particular case.

I also read State v. Walker, where it was a somewhat similar matter, where a

person was on trial for drugs and had prior drug convictions and the Trial

Court allowed them and, of course, that matter was reversed. And that’s

because the prior convictions were of a similar nature.

In this particular case, the prior convictions before this Court are not of a

similar nature. They involve felony possession of a handgun, possession of a

controlled substance with intent, and whatever the federal offense was, some

kind of federal drug offense, all of which would require sentences of a year or

more. And this Court believes that they are admissible should the defendant

take the witness stand.

The trial court then noted that the convictions that were more than ten years old were time

barred.

Under Tennessee Rule of Evidence 609, prior crimes may be used to attack a

witness’s credibility under certain circumstances. The crime itself must be punishable by

death or imprisonment in excess of one year or involve dishonesty or false statement. Tenn.

R. Evid. 609(a)(2). If the witness to be impeached is a criminal defendant, the State must

give written notice of its intent to use the prior convictions. Tenn. R. Evid. 609(a)(3).

Furthermore, for criminal defendants, the trial court “upon request must determine that the

conviction’s probative value on credibility outweighs its unfair prejudicial effect on the

substantive issues.” Id. The trial court must make this ruling prior to the defendant’s

testimony. Id. This particular balancing test is applied to convictions which are not stale.

See Tenn. R. Evid. 609(b). A trial court’s decisions regarding the admissibility of prior

convictions are reviewed for an abuse of discretion. Waller, 118 S.W.3d at 371.

-23-

In State v. Waller, the Tennessee Supreme Court rejected the contention that prior

drug convictions involve dishonesty or false statement within the meaning of the Rule.

Waller, 118 S.W.3d at 372. The Court concluded that “prior felony drug convictions are, at

best, only slightly probative of [the defendant’s] credibility.” Id. at 373. Because the

convictions in Waller had “some relevance” to credibility, the Court went on to analyze the

similarity of the offenses to the charged crimes, concluding that their substantial similarity

was prejudicial and the admission of the evidence was error. Waller, 118 S.W.3d at 373-74.

Concerning this issue, the Supreme Court made the following findings:

In our view, Waller’s prior convictions do not involve dishonesty or false

statement as contemplated by Rule 609. Waller’s three prior convictions are

for possession of a controlled substance for resale, sale of a controlled

substance, and facilitation of sale of a controlled substance. The trial court

based its finding that these felony drug convictions involve dishonesty upon

the illegality of the possession of a controlled substance. We are unwilling to

hold that every conviction for an illegal act is indicative of dishonesty.

Accepting the trial court’s reasoning “would preclude any principled

differentiation among crimes of varying impact on witness veracity.” State v.

Zaehringer, 325 N.W.2d 754, 757 (Iowa 1982); see also Gregory v. State, 616

A.2d 1198, 1204 (Del. 1992) (rejecting reasoning similar to that applied by the

trial court in the present case). Under the trial court’s rationale, virtually all

convictions for crimes committed knowingly or intentionally would be

admissible for impeachment purposes. We decline to read Rule 609 in such

a manner.

The offenses for which Waller has been convicted do not comport with the

plain meaning of “dishonesty.” The statutory elements of these offenses do

not require that the controlled substance to be sold or possessed in a manner

that involves deceit or fraud. See [State v.] Walker, 29 S.W.3d [885, 891

(Tenn. Crim. App. 1999)] (stating that “the evidence relating to the elements

of the crime is to be considered in questioning the offense’s relevance to

dishonesty, not the general circumstances or environment within which the

offense was committed”); see also United States v. Lewis, 626 F.2d 940, 946

(D.C. Cir. 1980) (interpreting Rule 609 of the Federal Rules of Evidence to

require that the crime involve dishonesty or false statement as an element of

the statutory offense); Gregory, 616 A.2d at 1204 (concluding that the

elements of the crime of possession of a controlled substance with intent to

deliver “require no proof of conduct involving lying, deceiving, cheating,

stealing or defrauding”); Zaehringer, 325 N.W.2d at 756 (holding that the

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elements of the delivery of marijuana offense do not involve “deceit, fraud,

cheating, or stealing”).

Waller, 118 S.W.3d at 371-72 (footnotes omitted).

As pointed out by the State, the three convictions to be considered in the present case

were for felony possession of a handgun, possession of a controlled substance with intent to

sell or deliver, and a federal drug conviction, none of which involved an element of

dishonesty. Therefore, the trial court erred by (1) failing to make a finding of probative value

over prejudicial effect; and (2) ruling that the convictions not involving dishonesty could be

used to impeach Defendant’s credibility if he chose to testify.

Regardless, the admission of prior convictions whose probative value is outweighed

by the danger of unfair prejudice is subject to harmless error analysis. Waller, 118 S.W.3d

at 374. An error by the trial court does not require relief unless, “considering the whole

record, error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). In Waller, the

defendant’s prior convictions were similar in nature to the offense for which he was charged

at trial. Regardless, the Supreme Court found the error to be harmless:

We must next consider whether the error in this case affirmatively or more

probably than not affected the judgment to Waller’s prejudice. See Tenn. R.

Crim. P. 52(a); Tenn. R. App. P. 36(b); [State v.] Galmore, 994 S.W.2d [120,

125 (Tenn. 1999)]. Waller is not entitled to relief if he was not prejudiced by

the error. State v. Taylor, 993 S.W.2d 33, 35 (Tenn. 1999).

Waller presented no evidence at trial, and he failed to make an offer of proof

as to his proposed testimony. See Galmore, 994 S.W.2d at 125 (holding that

an offer of proof is not required to preserve a claim of an erroneous ruling on

admissibility for review but concluding that it may be the only way to

demonstrate prejudice). He also has presented no argument on appeal

concerning the substance of his contemplated testimony. At trial, the State

presented the testimony of two police officers who observed Waller sell the

counterfeit substance. This evidence against Waller is overwhelming and

uncontroverted. Consequently, Waller has failed to demonstrate that he was

prejudiced by the trial court’s erroneous ruling. We hold, therefore, that the

trial court’s error in ruling that Waller’s prior felony drug convictions would

be admissible for impeachment purposes was harmless. See Galmore, 994

S.W.2d at 125; Taylor, 993 S.W.2d at 35.

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In this case, as in Waller, although the admission of the evidence was in error, its

admission did not more probably than not affect the judgment. Tenn. R. App. P. 36(b).

Defendant made no offer of proof as to his proposed testimony at trial, and he offers no

argument on appeal concerning the substance of any testimony. Moreover, as argued by the

State, Defendant concedes that his version of the facts, and his denial of any wrongdoing

were “raised through the playing of his pre-trial statement to Detective Zoccola[.]” We

conclude that admission of the convictions was in error, however, that error was harmless.

D. Testimony by a Forensic Social Worker Regarding C.L.’s Medical History

Defendant argues that the trial court erred by allowing Lisa Dupree, a forensic social

worker at the Our Kids Center in Nashville, to testify about C.L.’s medical history that C.L.

had given to former Our Kids employee Lorraine Gray. He contends that the testimony was

inadmissible hearsay as a prior consistent statement used to bolster C.L.’s credibility.

Defendant further asserts that the testimony was not admissible as an exception to the hearsay

rule as being made for the purpose of medical diagnosis and treatment. Our Supreme Court

has stated that “questions concerning the admissibility of evidence rest within the sound

discretion of the trial court, and this Court will not interfere in the absence of abuse

appearing on the face of the record.” Pylant v. State, 263 S.W.3d 854, 870 (Tenn. 2008)

(citing State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008); State v. DuBose, 953 S.W.2d

649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v.

Harris, 839 S.W.2d 54, 73 (Tenn. 1992)). Hearsay is defined as “a statement, other than one

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). As a general rule, hearsay is not

admissible during a trial, unless the statement falls under one of the exceptions to the hearsay

rule. Tenn. R. Evid. 802.

Rule 803(4) of the Tennessee Rules of Evidence provides that statements made for

the purpose of medical diagnosis and treatment are admissible as an exception to the hearsay

rule. Specifically, the Rule states that:

[s]tatements made for the purposes of medical diagnosis and treatment

describing medical history; past or present symptoms, pain, or sensations; or

the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis and treatment.

Tenn. R. Evid. 803(4). Rule 803(4) is based upon the notion that statements made under

conditions prescribed by the rule are presumptively trustworthy.” State v. McLeod, 937

S.W.2d 867, 870 (Tenn. 1996).

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At trial, C.L. testified concerning the incidents of sexual abuse by Defendant. On

cross-examination, Defendant’s counsel specifically asked C.L. what happened when she was

examined at the hospital:

Q: And you weren’t truthful with the people at the hospital when you went

and talked to them later on that same day; right?

A: I don’t feel that it was being untruthful. I just - I didn’t lie about

anything. I just told them what happened that night.

Q. Well, do you recall them asking you if this was the only time that

anything like this had happened?

A: After I came from the hospital and I got interviewed by the detectives;

not the hospital.

Q: So you don’t recall them asking you that same question too?

A: No, sir.

Q: So if they had a report that they did after this and they put in there that

you told them this was the only time that it happened, you don’t know

why they would have put that in the report?

A: I never said that it didn’t happen. I said I don’t remember.

Q: Okay. So it might have been that you told the people at the hospital

too, that this was the only time that it had happened?

A: Yes, sir.

Ms. Dupree was later called to testify at trial. She testified that when a child is seen

at the Our Kids Center, a medical history is taken “solely for the purposes of medical

diagnosis and treatment.” The defense objected to C.L.’s medical report arguing that it was

testimonial in nature and should not be admitted. The trial court overruled the objection.

C.L. reported to Ms. Gray that Defendant had put his mouth on her “private parts.” C.L.

indicated that Defendant had “swiped his hands by her genital area, but did not touch in her

genital area with his hands[.]” Ms. Dupree testified that C.L. also said that approximately

two months earlier, Defendant asked her to put her mouth on his private parts. C.L. then

disclosed the conduct to the daughter of her foster mother’s friend. Ms. Dupree testified that

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C.L. indicated that her last menstrual cycle ended two days prior to the exam. There was

some blood noted during the physical exam. Ms. Gray also documented that C.L. indicated

that Defendant told C.L., “Don’t do this, you don’t want to leave don’t go telling nobody this,

you’ll have to leave[.]”

The statements by C.L. to Ms. Gray were hearsay, and absent a relevant hearsay

exception, were inadmissible. Here, as argued by the State, C.L.’s statements were taken in

order to determine an appropriate medical diagnosis and/or treatment and therefore were

admissible as a hearsay exception under Rule 803(4) of the Tennessee Rules of evidence.

Defendant seems to argue that C.L.’s medical history would be admissible only “when

a witness is impeached through the introduction of a prior inconsistent statement that

suggests that the witness’ statement was either fabricated or based upon faulty recollection.”

However, as previously noted, Defendant had challenged C.L. on cross-examination

regarding her report to medical personnel previous to or during C.L.’s medical examination.

When a defendant attacks the victim’s credibility, the State may rehabilitate the witness by

offering evidence of a prior consistent statement. In State v. Joshua Brandon Tate, No.

M2011-02128-CCA-R3-CD, 2013 WL 3964122 (Tenn. Crim. App. July 31, 2013 ), this court

stated:

There are actually two circumstances in which a prior consistent statement of

a witness is admissible: (1) where a prior consistent statement is allowed “to

rebut the inference that the witness’s testimony was a recent fabrication”,

State v. Bush, 942 S.W.2d 489, 516 (Tenn. 1997); and (2) when a witness’s

prior statement is used out of context to cross-examine the witness. State v.

Boyd, 797 S.W.2d 589, 593-94 (Tenn. 1990). “The impeaching attack on the

witness’s credibility need not be successful for admissibility of a prior

consistent statement.” State v. Albert R. Neese, No. M2005-00752-CCA-R3-

CD, 2006 WL 3831387, at *6 (Tenn. Crim. App., at Nashville, Dec. 15, 2006),

perm. app. denied (Tenn. April 23, 2007). More specifically, in State v.

Benton, 759 S.W.2d 427, 433-34 (Tenn. Crim. App. 1988), this Court

explained that a prior consistent statement is admissible:

[U]nder general evidentiary rules, . . ., as an exception to the

rule against hearsay, to rehabilitate a witness when insinuations

of recent fabrication have been made, or when deliberate

falsehood has been implied. But before prior consistent

statements become admissible, the witness’ testimony must have

been assailed or seriously questioned to the extent that the

witness’ credibility needs shoring up.

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See also Danny Ray Smith, No. M2009-02275-CCA-R3-CD, 2011 WL

1432033, at *14 (Tenn. Crim. App., at Nashville, Apr. 13, 2011), perm. app.

denied (Tenn. Aug. 25, 2011) (stating that prior consistent statements may be

admissible to rebut the inference that the witness recently fabricated the

testimony). It is important to note that properly admitted prior consistent

statements are not hearsay because they are not offered for the truth of the

matter asserted. See State v. Livingston, 907 S.W.2d 392, 398 (Tenn. 1995);

State v. Joseph Shaw, Jr., No. W2009-02326-CCA-R3-CD, 2010 WL

3384988, at *7 (Tenn. Crim. App., at Jackson, Aug. 27, 2010), perm. app.

denied (Tenn. 2011); Albert R. Neese, 2011 WL 1432033, at *6; Neil P. Cohen

et al., Tennessee Law of Evidence § 8.01 [9] (6th ed. 2011).

Joshua Brandon Tate, 2013 WL 3964122, at *7.

Based on our review, we conclude that the trial court did not err in allowing the

admission of C.L’s statements to Ms. Gray as testified to by Ms. Dupree concerning C.L.’s

medical history. The testimony was properly admitted for the purpose of medical diagnosis

and treatment and as a prior consistent statement to rebut Defendant’s allegation that C.L.’s

testimony was fabricated. Defendant is not entitled to relief on this issue.

E. Failure to Charge Attempted Rape as a Lesser-Included Offense of Rape

Defendant argues that the trial court erred in failing to instruct the jury on attempted

rape as a lesser included offense of rape. In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our

Supreme Court concluded that an attempt to commit the charged offense is a lesser included

offense of the charged offense. Id. at 467. Tenn. Code Ann. § 40-18-110(a) provides:

When requested by a party in writing prior to the trial judge’s instructions to

the jury in a criminal case, the trial judge shall instruct the jury as to the law

of each offense specifically identified in the request that is a lesser included

offense of the offense charged in the indictment or presentment. However, the

trial judge shall not instruct the jury as to any lesser included offense unless the

judge determines that the record contains any evidence which reasonable

minds could accept as to the lesser included offense. In making this

determination, the trial judge shall view the evidence liberally in the light most

favorable to the existence of the lesser included offense without making any

judgment on the credibility of evidence. The trial judge shall also determine

whether the evidence, viewed in this light, is legally sufficient to support a

conviction for the lesser included offense.

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We also note that absent a written request for an instruction on a lesser included offense the

failure of the trial court to instruct the jury on the lesser included offense is not available as

a ground for relief either in a motion for new trial or on appeal. T.C.A. § 40-18-110(c)

(2012).

Our review of the record reveals that Defendant failed to file a written request asking

the trial court to instruct the jury on the lesser included offense of attempted rape. However,

the record contains the following exchange at trial:

THE COURT: All right. [Trial counsel], you had requested a

charge?

[TRIAL COUNSEL]: Yes, Your Honor. I requested that to each of the

charged offenses and the lesser included offenses

that are in the jury instruction, adding the charge

of attempt of those different - - rape, sexual

battery, statutory rape by an authority figure, and

statutory rape - - based on our in-chambers

conversation, I understand the Court is ruling that

they’re going to deny that at this time, based on

State vs. Edwards. I would still request that that

instruction be giv[en].

THE COURT: All right. Well, as I said, I’m guided by State v.

Edwards, it’s a September 2011 case, which

essentially says that either the act was committed

or it was not. Unless there was proof that there

w[a]s some attempt made, then, attempt is not a

part of the jury instructions. And I don’t know of

any evidence that said there was an attempt made.

So, I am going to leave out the attempt on each of

the Counts. All right.

Since Defendant failed to file a written request for jury instructions prior to trial, this issue

is waived on appeal unless it rises to the level of plain error. State v. Page, 184 S.W.3d 223,

226 (Tenn. 2006).

Even if “attempt” had been charged as a lesser-included offense, the jury would not

have been permitted to consider it as an option to convict Defendant. The jury instructions

are not included in the transcript. We assume, however, that the trial court properly charged

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the jury pursuant to State v. Davis, 266 S.W.3d 896 (Tenn. 2008) wherein our supreme court

held,

We hold that, where a criminal defendant is entitled to jury instructions on

lesser-included offenses, the trial court shall instruct the jury to consider the

offenses in order from greatest to least within each count of the indictment and

that it shall not proceed to consider any lesser-included offense until it has first

made a unanimous determination that the defendant is not guilty of the

immediately-preceding greater offense.

Davis, 266 S.W.3d at 910.

The jury made a unanimous decision that Defendant was guilty of each offense as

charged in the indictment. The jury was prohibited from considering any lesser offense.

Accordingly, if error, the error was harmless beyond a reasonable doubt, and therefore not

“plain error.” Defendant is not entitled to relief on this issue.

F. Sentencing

Defendant next contends that the trial court erred in sentencing him. More

specifically, he states that the trial court failed to “comply with the purposes espoused in

[Tenn. Code Ann. §] 40-35-103.” Defendant argues that the trial court erred in its application

of an enhancement factor and that the trial court erred in ordering his sentences to be served

consecutively in Counts One and Three.

In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law

and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

announced that “sentences imposed by the trial court within the appropriate statutory range

are to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A finding of abuse of

discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in

light of the factual circumstances and relevant legal principles involved in a particular case.’”

State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,

242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial

evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568

S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).

The reviewing court should uphold the sentence “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the purposes

and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court

imposes a sentence within the appropriate range and properly applies the purposes and

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principles of the Sentencing Act, its decision will be granted a presumption of

reasonableness. Id. at 707.

We note that even a trial court’s misapplication of an enhancing or mitigating factor

in passing sentence will not remove the presumption of reasonableness from its sentencing

determination. Bise, 380 S.W.3d at 709. Here, as enhancement factors, the trial court found

that Defendant had a history of criminal convictions in addition to those necessary to

establish the appropriate range and that the offense was committed to gratify the defendant’s

desire for pleasure or excitement. Tenn. Code Ann. § 40-35-114(1), (7). The trial court

further found that Defendant abused a position of trust in that “he was there to look after this

particular young lady at those particular times - at least, at most of the particular times.”

Tenn. Code Ann. § 40-35-114(14). Defendant correctly argues that application of

enhancement factor (14) was inappropriately applied to the offense of statutory rape by an

authority figure, where Defendant’s position of authority is an element of the offense.

However, application of factor (14) was appropriate for the offense of rape. Statutory rape

by an authority figure was merged with the corresponding conviction of rape. The trial court

properly sentenced Defendant to fifteen years for each offense, which was within the

applicable range of punishment.

Defendant argues that the trial court improperly imposed consecutive sentencing. Our

supreme court has recently held that “the abuse of discretion standard, accompanied by a

presumption of reasonableness, applies to consecutive sentencing determinations . . . if [the

trial court] has provided reasons on the record establishing at least one of the seven grounds

listed in Tennessee Code Annotated section 40-35-115(b)[.]” State v. James Allen Pollard,

___ S.W.3d ___, No. M2011-00332-SC-R11-CD, 2013 WL 6732667, at *7-9 (Tenn. Dec.

20, 2013). Thus, the imposition of consecutive sentencing is subject to the general

sentencing principles that the overall sentence imposed “should be no greater than that

deserved for the offense committed” and that it “should be the least severe measure necessary

to achieve the purposes for which the sentence is imposed[.]” Tenn. Code Ann. § 40-35-

103(2), (4). Further, “[s]o long as a trial court properly articulates reasons for ordering

consecutive sentences, thereby providing a basis for meaningful appellate review, the

sentences will be presumed reasonable and, absent an abuse of discretion, upheld on appeal.”

James Allen Pollard at *9 (citing Tenn. R. Crim. P. 32(c)(1) (“The order [for consecutive

sentences] shall specify the reasons for this decision and is reviewable on appeal.”)); see also

Bise, 380 S.W.3d 705.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order

sentences to run consecutively if it finds any one of the following criteria by a preponderance

of the evidence:

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(1) The defendant is a professional criminal who has knowingly devoted

the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by

a competent psychiatrist who concludes as a result of an investigation

prior to sentencing that the defendant’s criminal conduct has been

characterized by a pattern of repetitive or compulsive behavior with

heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little

or no regard for human life, and no hesitation about committing a crime

in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant’s undetected sexual

activity, the nature and scope of the sexual acts and the extent of the

residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

These criteria are stated in the alternative; therefore, only one need exist to support

the appropriateness of consecutive sentencing. In this case, the trial court made the following

findings concerning consecutive sentencing:

Now, with respect to 40-35 - - I believe it is 115, but let me - - 40-35-113 - -

115, excuse me. The Court, has to look at - - and subsection five, which states

that: “The defendant is convicted of two or more statutory offense involving

sexual abuse of a minor with consideration of aggravating circumstances

arising from the relationship between the defendant and C.L.,” et cetera. The

Court believes that that does come into play. So, the Court is going to

sentence him to two of the counts consecutive to one another and the third

count concurrent, for an effective sentence of thirty years.

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The records supports the trial court’s finding due to the relationship of Defendant to

the victim and Defendant’s position of trust with the victim. The evidence at trial also

suggested that the sexual abuse spanned a significant time frame.

We conclude that the sentencing decision was “within the appropriate range and the

record demonstrates that the sentence is otherwise in compliance with the purposes and

principles listed by statute.” Bise, 380 S.W.3d at 709-10. Defendant is not entitled to relief.

Accordingly, we affirm the judgments of the trial court.

___________________________________

THOMAS T. WOODALL, JUDGE

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