State of Tennessee v. Jose Dimas Alvarado

06/27/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 18, 2017 at Knoxville

STATE OF TENNESSEE v. JOSE DIMAS ALVARADO

Appeal from the Criminal Court for Davidson County

No. 2014-C-2531 Steve Dozier, Judge

No. M2016-00378-CCA-R3-CD

The Defendant, Jose Dimas Alvarado, appeals as of right from his conviction for

aggravated sexual battery. See Tenn. Code Ann. § 39-13-504. The Defendant argues (1)

that the trial court erred in admitting the victim’s forensic interview as substantive

evidence; (2) that the trial court erred in allowing the State to present evidence and

argument that the Defendant had characteristics typical of perpetrators of child sexual

abuse; (3) that the trial court erred in allowing the prosecutor to make improper

statements during closing argument that referenced facts outside the record and shifted

the burden of proof to the Defendant; (4) that the trial court erred in instructing the jury

on aggravated sexual battery as a lesser-included offense of rape of a child; and (5) that

the trial court imposed an excessive sentence. Following our review, we affirm the

judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public

Defender (on appeal); and Georgia Simms and Daniel Satterfield, Assistant Public

Defenders (at trial), for the Defendant, Jose Dimas Alvarado.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Glenn R. Funk, District Attorney General; and Alyssa Henning, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On September 26, 2014, the Davidson County Grand Jury indicted the Defendant

for one count of rape of a child, involving the eleven-year-old victim, M.A.1 On July 16,

2015, the trial court held a hearing on the State’s intent to use a recording of a forensic

interview.

Pre-Trial Hearing

The trial court held a pre-trial hearing to determine the admissibility of a video

recording of the victim’s forensic interview. At the hearing, counsel for the defense

requested that if the forensic interview was generally admissible, the court order the State

to redact ten specific portions of the interview. The trial court subsequently found that

the video recording of the forensic interview complied with the requirements of

Tennessee Code Annotated section 24-7-123. The trial court granted the State’s motion

to use the recording as substantive evidence at trial, subject to two redactions. The court

reasoned that two statements made by the interviewer, Barbara Tallent, were “overly

prejudicial and barred by Rule 403 of the Tennessee Rules of Evidence.” The following

two statements were redacted:

1. 34:33-34:41- Ms. Tallent: “That’s a lot to worry about. You had a lot of

things to think about.”

2. 36:41-36:50- Ms. Tallent: “That’s a lot of pressure on you and I’m really

sorry that you’ve been carrying that around. He had no right to do that.”

Jury Trial

The Defendant’s jury trial began on July 20, 2015. The victim testified that he

was thirteen years old at the time of the trial. He lived in Nashville with his parents and

his six siblings. The victim identified the Defendant and said that he knew him from

attending the same church. The victim agreed that something happened with the

Defendant one evening during a church service, but he did not remember the exact date.

The victim explained that he was attending an all-night service at his church that began at

7:00 p.m. and lasted until 6:00 a.m. the next morning. The victim stated that there was a

break in the service, and the attendees shared a meal. The victim said that following the

1

It is the policy of this court to protect the identity of minor victims. Therefore, we will use initials for

each minor involved in this case. In furtherance of this policy, we will also use initials for relatives and

family members of the victim.

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meal, the Defendant asked the victim to help him carry leftover food to his car. The

victim agreed and accompanied the Defendant to a dark area of the parking lot.

The victim testified that he was alone with the Defendant and that he had told no

one where he was going. The victim said that he knew the Defendant and had talked to

him at church prior to this night. When asked what happened when he and the Defendant

reached the car, the victim replied,

And then [the Defendant] told me to get in the car and so I did, right.

And like I was scared and then he told me to climb into the back of the car

and then he went to like the driver’s seat, the driver’s seat and then he got

in and he locked all of the doors and then he got in and he locked the

driver’s seat door and I went to the very back because he told me to go

there. And then he went to the back when I went to the back, he told me to

take my clothes off. And I was really scared and like I didn’t know what to

do so I just did what he said and I did, right.

And [the Defendant] was taking his clothes off. I was trying to find

a way out. Like, I was trying to see if like the back door was open or

something, it wasn’t. I was scared. My heart was beating really fast. I

remember he told me to make sure nobody [was] watching or nobody [was]

– or like if nobody [was] nearby and I was like just hoping someone would

be there.

The victim said that he did not see anyone nearby because it was dark, and it was

dark where the Defendant’s car was parked. The victim testified that the Defendant’s car

was red and that it contained “the driver’s seat, the passenger [seat,] and three seats for

like three people in the back, and then [there was] the very back part where you would

like store stuff and it was like a bunch of space.” The victim agreed that the three seats in

the back were in one row and that this row of seats connected with the back part of the

car so that there was not a separate trunk area. The victim asserted that he had not been

in the Defendant’s car before this evening. When asked what happened after the victim

had taken off his clothes and the Defendant had removed his own pants, the victim said

that the Defendant instructed him “to turn around and to like bend over.” The victim said

that he did this and then “remember[ed] just feeling a horrible pain” “in [his] rear end.”

Counsel for the State showed the victim two diagrams of a boy, and the victim circled the

area he was referring to as his “rear end.” When asked if he knew what was causing the

pain, the victim replied, “It was [the Defendant’s] private part” and that the Defendant’s

“private part” was “[i]nside” his anus. Counsel for the State showed the victim a diagram

of a man and asked the victim to circle what he was referring to as the Defendant’s

private part. The victim then identified the penis on the diagram.

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The victim testified that after he felt the pain, the Defendant “took it out and he

was cleaning something.” When asked what the Defendant was cleaning, the victim said,

“It was my rear end, but I don’t know what it was” that the Defendant was cleaning off.

The victim explained that the Defendant used “his undershirt, like a white one he had” to

clean. The victim said that after cleaning, the Defendant “rolled [the shirt] up and . . . put

it outside.” He said that after that, the Defendant told the victim to “pull up [his] pants

and to get dressed.” The victim said that he got dressed and that the Defendant got

dressed, too. He said that the Defendant put on a different shirt from the one he used to

clean and instructed the victim not to “tell anybody.” The victim testified that he

returned to the church and did not tell anyone about what had happened because he “felt

scared.”

The victim agreed that at some point he did tell someone what happened that

night. He said that several months after the incident he told his mother. When asked

how it came about that the victim told her, he said, “I tried to do something horrible to

my brother.” He asserted that she “walked in on” the victim trying to “do what happened

to [him] to [his brother].” The victim said that his mother walked in “before it

happened[,]” and “a day after” he told her what the Defendant did to him. Counsel for

the State asked the victim what he remembered about that conversation and he responded,

It was a question like: She told me, like has something happened to

you that you’re not – you’re not the same person no more and like, and like

spending time with the family. And she just kept asking me and she was

like has someone done anything to you or has something done something –

like touched you or something. Like you can tell me. And I was like, no.

Like I told her several times, like no, and she was just like mentioning

names of people and she asked me again she was like, has someone done

something to you? And I was like yes. And then she was mentioning

names and then it came up to [the Defendant’s] name and I told her it was

him. And that’s what I told her.

The victim said that the Defendant’s name was not the first name his mother mentioned.

The victim agreed that counsel for the State had shown him “a video of [the victim]

talking to a woman named Barbara [Tallent] about what happened.” The victim agreed

that the woman in the video interviewed him about the incident with the Defendant, he

identified a disc containing the interview that he had previously initialed, and he asserted

that he told the truth during that interview. The disc containing the forensic interview

was entered into evidence and marked as Exhibit 3.

On cross-examination, the victim was asked about several details from the night of

the incident with the Defendant. The victim agreed that he remembered the Defendant’s

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having a red car, and he confirmed that he did not remember the exact date that this

happened. The victim said that “it was warm” outside, and when counsel for the defense

asked if it was summertime, the victim said, “I guess, yeah.” He confirmed that his

church had all-night vigils at approximately “the end of every month[,]” and he agreed

that he “remember[ed] this happening [during] one of the summertime” vigils. The

victim was then asked if he remembered telling Officer Timothy Miller that the

Defendant “tried to kiss [him] on the mouth[,]” and the victim replied, “I don’t remember

saying that.” The victim agreed that he did not tell Ms. Tallent that the Defendant tried to

kiss him on the mouth.

Dr. Verena Brown testified as an expert in child abuse pediatrics and in the field of

forensic examinations. Dr. Brown said that she was employed with Vanderbilt and

several times a month worked with Our Kids Clinic, which specialized in child sexual

abuse. Dr. Brown explained the standard procedure for when she sees a child in

conjunction with Our Kids Clinic:

[E]very child that we see in our program gets seen primarily or

initially by a social worker that will take the history from the parents of

what the allegations are. And then at that point, they will tell the clinician.

So in my case, if it’s my client, they will tell me what the allegations are, so

when I examine the child, I know what sort of things I’m looking for.

And then I will go into the room and talk to the parents or caretakers

about their medical history specifically. Meanwhile, if the child is old

enough to speak, the social worker will be talking with the child. After

that, we will do the physical exam.

Dr. Brown further explained that the parent and the child are interviewed separately.

Regarding the victim in this case, Dr. Brown testified that she performed an exam

on the victim in February 2014. She identified the “Our Kids report” on the victim as a

report generated by her and a social worker for Our Kids Clinic. She said that it

contained “the history that [the victim] gave and the documentation that this was a full

exam.” Dr. Brown read the medical history contained in the report, which included the

following:

When asked to tell [Dr. Brown] what occurred at church, [the

victim] reported, it was like October last year and that his family was

attending the church service that began at 7:00 p.m. and ended at 6:00 a.m.

He state[d] that they were eating and that he was sitting next to a man he

knew from church. He state[d] – quotes, this man was really kind to me, he

gave me candy. He state[d] that the man told him to take the leftover food

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and put it in his car. [The victim] said okay and began walking toward the

car, but it was dark and he became scared. He state[d] that he decided he

was not going to take the food to the car and turned around. He state[d] as

he turned around, the man was coming toward him and he told him to put

the food in the car. [The victim] state[d] he told the man quote I am not

going to go, I am scared end quote. But that the man continued to tell him

to go to the car.

[The victim] stated that when they got to the car, the man told him to

get in and asked – and he asked why. He state[d] that the man kept telling

him to get in and they both got in the car and the man locked the door.

[The victim] stated the man told him to pull down his pants and kept

repeating, quote make sure nobody come[s], end quote.

[The victim] stated, quote I was paralyzed, end quote. He state[d] he

became concerned that the man had a gun and that he did everything the

man told him to do because he did not know what could happen to him.

When asked what happened after the man pulled down his pants, [the

victim] state[d] that the man pulled down his pants and told him to bend

over. When asked what happened next, [the victim] stated quote he put his

private part in my butt, end quote. He state[d] that he was crying because

quote it hurt so bad, end quote. He state[d] the man kept telling him not to

make a sound and that the man continued to put it in his butt and then he

quote took off his shirt and he cleaned himself off and cleaned me off, end

quote.

When asked if he had seen the man put anything on his penis, [the

victim] said no. [The victim] also stated that he did not know what a

condom was. When asked if he saw anything come out of the man’s penis,

[the victim] said he did not know. When asked what he had cleaned off,

[the victim] said he did not know, but that the man told him that he was

going to clean his butt and clean himself.

[The victim] told him at that point the man told him quote you better

not tell anybody, end quote. He said he became concerned that the man

might hurt him or his family. [The victim] state[d] that the man then told

him to quote/unquote get out of the car. [The victim] state[d] that he [was]

not sure where the man went for the rest of the night, but that he does not

remember seeing him.

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When asked if something like this had ever happened before, [the

victim] said no. When asked if it happened after this, he said no. [The

victim] stated that on another occasion while he was playing outside with

his friends – he th[ought] this occurred in November – the man kept calling

him, quote, [M.A.] come, [M.A. come], end quote. But that he ignored

him. With regard to any previous sexual abuse, [the victim] denies any.

When asked if there was any other contact during the incident, [the

victim] said no. When asked if there was anything else he needed to share,

[the victim] stated no.

Dr. Brown testified that the medical exam was normal, aside from a “little fissure

or a little opening of skin at the 12 o’clock position of the anus.” She explained that this

could be caused by “sexual abuse” or from “passing a large stool or something of that

nature.” She said that the exam was “four months after the incident, so it’s unlikely [the

fissure] was due to th[e] incident” involving the Defendant. When asked if she would

“expect to find an injury after an incident like the one that [the victim] disclosed[,]” she

responded, “Certainly not four months later. In fact, it’s actually unusual to find any sort

of injury at all after such a disclosure.” She further explained that “the anus heals very,

very quickly. And so it’s very[,] very normal to have a normal exam, especially [four]

months later.” She said that a rape kit was not collected due to the passage of time. She

said that a standard time to collect a rape kit from a child was “within three days of an

assault” because “[t]hat’s when you are likely to find evidence of DNA.” She confirmed

that it was “possible for a child to be anally penetrated and there be no medical findings.”

On cross-examination, Dr. Brown confirmed that “only one act of penetration”

was disclosed by the victim and that she was not “looking for any other type of sexual

conduct during that exam.” Dr. Brown also agreed that according to her information, the

“act of penetration occurred in October of 2013.” Dr. Brown agreed that during the

exam, she found no signs of “chronic trauma” and that she did not consider the “anal

fissure either a sign of acute trauma or chronic trauma.”

O.A. testified that she lived in Nashville with her husband and family and that the

victim was her son. She identified the Defendant and stated that she knew him because

he attended “the same church [she and her family] used to” attend. When asked how

long she had known the Defendant, she said “[m]ore than [fifteen] years[.]” She

explained that she “did not remember the exact year that he was there[,]” but the

Defendant had lived “on the other side” of the duplex that she and her family rented. She

said that he lived there “maybe [two], [three] years.” She confirmed that the victim knew

the Defendant through church and said that “[s]ometimes . . . [fifty], sometimes [forty]”

people attended their church. She agreed that the largest number of church attendees was

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“80” but explained that not “everybody goes” “every day[.]” She agreed that the victim

was “around the [D]efendant at church and church related activities.” O.A. confirmed

that on January 16, 2014, she observed her son “exhibiting some odd behavior.” She said

that she saw the victim doing “something suspicious” to another one of her sons, J.A.

She asked J.A. if the victim had done anything to him, and she said that J.A. responded,

“[N]o, he just tried to touch my underwear.”

O.A. said that the next day, she told her nineteen-year-old daughter about the

situation, and her daughter told her “somebody is doing that to him. So you need to ask

him.” O.A. said that she decided to talk to the victim and asked him,

Why did you try to do this to J.A. to try to . . . pull his pants down?

So I said to him, is there someone doing that to you?

So he [was] just turning to look at me. And I kept saying is there

somebody doing this to you? And I told him, you have to tell me the truth.

And he just kept looking at me and crying. And I said . . . tell me who it is.

Is it someone from school, is it a teacher? He said no. And I said is [it]

someone here at home? I said is it one of your uncles? He said no. And I

said then who? And then I said, where, at church? And he said yes. And I

said who? Who? And he said [the Defendant].

She explained that the victim did not give her any specifics, but that he “just kept crying.”

O.A. called her husband and told him “what [she] had discovered.” She said that her

husband called an elder from their church, Ignacio Perez. Mr. Perez came to their home

and spoke with the victim and his parents. O.A. stated that he encouraged them to “not

stay quiet” and “to report this to the police.”

O.A. explained that the following day, she called the victim’s pediatrician, Dr.

Carson. She said that Dr. Carson returned her call, and O.A. told her what happened with

the victim. She said that the doctor referred her “to a counselor to tell [her] what [she]

should do.” O.A. said that she talked to this counselor, who told her that she “needed to

report [the incident] to [the] police.” O.A. said that after speaking with the counselor on

Monday afternoon, she called the police immediately. She said that the police and a

detective came to her home and that she took the victim to see a doctor “the next day or

two days after.”

When asked if she had noticed anything regarding the victim’s behavior about

attending church before the victim told her about the incident, she said, “Sometimes [the

victim] didn’t want to go. And I would tell him go, to go with [his] dad and go to the

church. He [would] say no, I don’t want to go, and I would insist that he should go.” She

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said that this behavior started about six months before the victim told her what had

happened with the Defendant.

On cross-examination, O.A. said that the vigils at her church occurred at the end

of every month. She explained that many people attended, and during a break in the

service, it was common for adult church members and the children to go outside and play

for about thirty minutes. O.A. confirmed that during these services, she had not seen

“anything strange between [the Defendant] and [the victim].” She also agreed that she

had seen no physical signs of abuse on the victim; however, she said that he was “more

quiet and sad and lonely” during the months leading up to January 2014.

J.F.A.C. testified that he was married to O.A. and that the victim was their son.

He explained that he lived with his family in Nashville and that their home was divided

into two units. J.F.A.C. stated that his family lived in one unit and that they rented out

the second unit. J.F.A.C. identified the Defendant and said that he met him at a church in

Nashville in 1997 or 1998. He explained that the Defendant rented the second unit of

their home in either 2007 or 2008 and that he remained there for a “year and a half or two

years.”

J.F.A.C. recalled that on January 17, 2014, his wife called him while he was at

work and informed him that the Defendant had been abusing the victim at the church.

J.F.A.C. said that he went home and called Mr. Perez and that Mr. Perez came to his

home and spoke with J.F.A.C., O.A., and the victim. J.F.A.C. explained that they took

the victim to a clinic and then called the police at the suggestion of personnel at the

clinic. He said that an officer came to their home. He said he and his wife took the

victim to see a physician and that they took “him to a place where they d[id] therapy.”

Regarding the specifics of the incident involving the Defendant, J.F.A.C. said that he

“tried many times to talk to [the victim], but he never wanted to tell [J.F.A.C.]

specifically anything.” He said that the victim met with many people regarding the

incident including treatment providers and the District Attorney. He testified that either

he or his wife took the victim to these meetings. He explained that when the victim met

with a therapist, neither he nor his wife were in the room because “it [was] treatment just

treatment between . . . that person and [the victim.]”

J.F.A.C. explained that prior to the victim’s allegations, his relationship with the

Defendant was “very good.” When asked to explain his family’s relationship with the

Defendant, he responded, “Spiritually speaking, it was a relationship through the church.

It was a spiritual relationship that [grew].” He said that as a member of the church, the

victim spent time with the Defendant. He agreed that the church regularly held nighttime

vigils and that both the victim and the Defendant attended these services.

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J.F.A.C. also testified that he placed a telephone call to the Defendant that was

recorded for the police. He explained that a detective set up the recorded call and

remained with J.F.A.C. while he spoke to the Defendant. J.F.A.C. said that he and the

Defendant spoke Spanish during the call. He said that he called the Defendant to discuss

the incident with the victim. J.F.A.C. said that he asked the Defendant if he attacked the

victim and that the conversation lasted approximately twenty to thirty minutes. When

asked about his impression after the telephone call, J.F.A.C. said, “At the end of the call,

after making so many questions for him to tell me, he told me that, yes . . . that he had

done it and that if that would make me feel better, he accepted that he did that.”

On cross-examination, J.F.A.C. confirmed that he spoke with the church elder, Mr.

Perez. He agreed that two days later he took the victim to a clinic and called the police

after speaking with a doctor. J.F.A.C. said that after he called the police, Officer Miller

came to his home and spoke with him and his family in English. He agreed that he

translated some of Officer Miller’s questions for O.A. He said that after speaking with

the family together, Officer Miller spoke with the victim separately in a different room.

J.F.A.C. agreed that after the victim told his parents about the incident with the

Defendant, he and his family quit attending the church. He also confirmed that “if [he]

had known anything was wrong before [the victim] told [him] about this, [he] would have

quit going to church a long time before that.”

J.F.A.C. was also questioned about the overnight vigils at the church. He agreed

that the vigil would last from 6:00 p.m. to 6:00 a.m. He confirmed that he did not

remember “any service where [the victim] disappeared.” However, he explained that it

was “very hard to tell because [he] was an elder in the church and [he] would be focused

on working on what was needed for the service of the church.” J.F.A.C. agreed that he

did not observe the victim and the Defendant leave the church together, but he said that

he did see something “strange happen between [the victim] and [the Defendant].”

J.F.A.C. explained that the Defendant “was very friendly with children. He would buy

them candy.”

When asked about the recorded telephone conversation with the Defendant,

J.F.A.C. agreed that throughout the discussion, the Defendant told him “no, no, no, . . .

this did not happen.” He said that it was at the end of the conversation when the

Defendant told J.F.A.C. that he had touched the victim and “accept[ed] the situation.”

On re-direct examination, J.F.A.C. testified that the children of the church liked

the Defendant. He claimed that when the Defendant “would walk into the church, the

children would follow him.” When asked “isn’t it correct that also being active in the

church the [D]efendant would go on trips with other members of the church, including

children, members of the church, isn’t that correct?” he replied, “Yes, it’s true.”

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Sergeant John Farrell testified that he was employed as a detective in the sex

crimes unit of the Metropolitan Nashville Police Department (MNPD) in January 2014.

He identified the Defendant and agreed that he conducted an investigation into

“allegations of child sexual abuse involving the [D]efendant.” He explained that during

such an investigation, it was not typical for a responding officer to interview children

who made allegations of sexual abuse because they were not trained to do so. Sergeant

Farrell said that he responded to the scene in this case but that he did not interview the

victim.

He explained that the protocol for this type of situation was as follows:

[W]hen a child makes a . . . disclosure of sexual abuse to, say, a

parent or some type of guardian, and/or whoever, a teacher maybe, they

might call the police or notify [the Department of Children’s Services

(DCS)]. Once we get the information, we will go usually speak to the

person or people that that child disclosed that information to. In the

meantime, we will be in contact with DCS. And usually DCS or sometimes

our unit will set up what we call a forensic interview to have that child

interviewed at what we call a child advocacy center. So that’s kind of how

the child gets interviewed and you know the interviewers at the child

advocacy center are highly trained to do this type of interview.

He explained that the interviewers at the child advocacy center are trained differently

than patrol officers and said that “they go through many courses to learn how to do this.

This is what they do day in and day out.” Sergeant Farrell stated that another reason he

did not interview the victim when he responded to the scene was because the officers

tried “to keep the amount of interviews of the victim to a minimum.”

Sergeant Farrell said that when he arrived at the family’s home, he was not the

first officer to respond to the scene. He explained that when he arrived, he spoke to the

patrol officer to determine “what was going on and what the allegations were.” He said

that he spoke to the parents of the victim. Sergeant Farrell explained that he spoke in

English with the parents and that the victim’s father “communicate[d] pretty well” and

was “interpreting what [the victim’s mother] was saying.” He confirmed that there was

no official translator on the scene.

Sergeant Farrell agreed that he suggested that the victim’s father assist him in

obtaining a recorded telephone conversation with the Defendant. He explained that “[the

victim’s father called the [Defendant] . . . on the telephone. And basically talked to him

about these allegations. While speaking with him, we record[ed] the call in hopes of

gaining some sort of confession or admission.” Sergeant Farrell said that he encouraged

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J.F.A.C. to “tell [the Defendant] that [J.F.A.C.] knew about these allegations and . . .

confront him about it and ask him to explain himself[.]” He said that J.F.A.C. agreed and

that the recorded telephone conversation occurred in Spanish. Sergeant Farrell testified

that he did not speak Spanish, so he was not able to understand the conversation as it was

taking place. However, he said that during the telephone call, he observed that J.F.A.C.

was “upset and emotional” and “at one point he may have been crying.” He agreed that

he gave J.F.A.C. directions regarding the recorded conversation before the telephone call

took place and that he did not give directions throughout the telephone conversation. On

cross-examination, Sergeant Farrell agreed that he sent the “recorded [tele]phone call to

other officers for interpretation” because he did not speak Spanish. A transcript of the

English translation of the conversation was entered into evidence, and it was read

individually by all of the jury members.

Sergeant Farrell agreed that he became aware during an interview that the victim

made a disclosure about “the [D]efendant[’s] using some sort of shirt to clean [the victim]

and himself.” He testified that he did not execute a search warrant during his

investigation to collect this shirt or other evidence because the incident had occurred

several months before the victim made a disclosure. He said that it was not likely

officers would find “specific DNA like spermatozoa.” Sergeant Farrell also said that

when evidence is “a clothing item,” “it can [be] easily laundered. And generally

speaking people wash their clothes.”

Barbara Tallent testified that she was a forensic interviewer at the Nashville

Children’s Alliance. She explained that the Nashville Children’s Alliance was “a

nonprofit agency in Davidson County where a CPIT [child protective investigative team]

meets.” She said that it was where meetings were held for “all [who were] involved in

investigating and follow-up, and prosecution, and treatment and therapy, play therapy,

things like that.” When asked about the protocol for interviewing a child, she explained,

It’s neutral if we are not trying to – that we ask non-leading

questions. Non suggestive questions. It [had] a lot of open-ended

questions. We have to take into consideration the child’s age and

developmental abilities as well as any kind of special things that might need

to be addressed or taken into consideration. And we are trained in how to

follow that – it’s . . . structure[d] but it’s flexible and there are a lot of

step[s] that we follow that we have the [flexibility] to kind[] of move those

steps around a little bit.

She further explained that the purpose of the interview was not “to create a scenario” but

to “listen an[d] ask the right questions so that a child is able to tell information” or “give

-12-

a disclosure regarding abuse[.]” Ms. Tallent confirmed that the Nashville Children’s

Alliance strictly followed protocols.

Ms. Tallent agreed that she interviewed the victim in this case at the Nashville

Children’s Alliance. The State played a redacted version of the video recording of this

interview for the jury. In response to questions from Ms. Tallent, the victim explained

that the Defendant “raped” him and that is why he was at the Nashville Children’s

Alliance speaking with Ms. Tallent. The victim explained that during an all-night church

service, the Defendant asked the victim to accompany him to help load food into his car.

The victim told Ms. Tallent that it was very dark outside in the parking lot and there were

very few lights. He said that the Defendant’s car was red. Ms. Tallent asked the victim if

it was warm outside that evening, and he said that “it was summertime.” The victim said

that he became frightened and “tried to run away, but the Defendant stopped” him. He

explained that the Defendant told him to get in the car. The Defendant got in the car also

and “locked all the doors from the inside.” The victim said that the Defendant instructed

him to “take his pants down” and then the Defendant “stuck his thing in my butt.” The

victim said that the Defendant’s “thing was his private part.” The victim explained that it

“hurt a lot” and he “felt something wet and weird on his skin.” The victim said that the

Defendant took off his shirt and used it to clean the victim. The victim stated that the

Defendant instructed him not to tell anyone and that he was “scared and embarrassed and

worried that something bad might happen to his family.” The victim explained that the

Defendant instructed him to “get out of the car” and that the victim “got out and ran

really fast back into the church and acted like nothing had happened.” The victim said

that he did not tell anyone about the incident because he was afraid but that be eventually

told his mother after she “repeatedly asked him if something had happened to him.”

Counsel for the Defendant called Officer Timothy Miller, who testified that he

worked with the MNPD. When asked to describe how he was trained to conduct

preliminary investigations, he responded, “[F]irst of all, make sure the scene you are

going to is safe, identify who is the victim, who is the suspect. Identify any witnesses, try

to separate parties . . . , [obtain] individual statements.” Officer Miller explained that he

was trained to do “field site crime scene interviews” and said that these interviews were

for the purpose of “gather[ing] pertinent information” but were not the same as

“advance[d] interviewing” done by “a detective[.]” He confirmed that he took notes

during preliminary interviews and then completed a report that included “what the victim

told [him] . . . victims, witnesses, any other suspects[,] pertinent information or people[,]”

and parents if [the victim is] a juvenile[.]” He also included “a synopsis of what the

victim told” him.

Officer Miller testified that on January 11, 2014, he went to the victim’s home to

“investigate[] the alleged rape” of the victim. He said that after arriving at the home, he

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spoke with the victim and his father. Officer Miller explained that because the victim

was a juvenile, he “tried to speak mainly to his father, but [the victim] was there and

[Officer Miller] did have interaction with both [the victim and his father] at the same

time.” When asked if the victim told him anything about the Defendant’s “trying to kiss”

the victim, Officer Miller replied, “According to the report, [the Defendant] began trying

to kiss [the victim] on the mouth and [the victim] struggled to stop him based on [the

victim’s] statements.”

On cross-examination by the State, Officer Miller confirmed that he was a patrol

officer and routinely responded to 911 calls. He agreed that on January 11, 2014,

responding to the call regarding the victim “was more than likely one of many calls that

[he] responded to as part of [his] shift[.]” Officer Miller agreed that after leaving the

scene at the victim’s home, he “never had anything else to do with this case.” He also

confirmed that when he took notes at a scene during an interview, he was “not actually

putting that information into the report at that time.” He confirmed that he “would go

later and put that information into [his] report” and that “sometimes mistakes are made

when [he was] inputting information into an incident report.” Officer Miller agreed that

the likelihood of his making a mistake increased if he was “speaking to more than one

individual.” He agreed that he spoke with the victim and J.F.A.C. on the front porch of

their family home and that he became aware that J.F.A.C.’s first language was not

English. Officer Miller confirmed that he did not speak Spanish but agreed that he was

able to successfully communicate with J.F.A.C. He agreed that at some points during the

conversation, both the victim and J.F.A.C. would speak simultaneously. Regarding his

police report, Officer Miller assented that “some of the statements that [he] wrote down

where [he] would start with [the victim] stated blank could have been information that the

father . . . gave to [him] that [he] then wrote down as [the victim] stated[.]” Officer

Miller agreed that he did not record the interview with the victim and J.F.A.C. and that he

did not record direct quotations in his police report.

On redirect examination, defense counsel asked Officer Miller the following

questions:

Q. The District Attorney asked you or was saying that you were using

[the victim’s father] and [the victim] interchangeably[.] [I]f we look at

your report on page four of that report, the second full paragraph, eight

lines down from the top, I want to make sure I’m saying this right, you

wrote, [the victim] stated that [the Defendant] asked him to go outside the

church and retrieve something from [the Defendant’s] vehicle, stop, did I

read that correctly?

A. Yes.

-14-

Q. [T]hen on the third paragraph you wrote according to [the victim’s]

statements about the incident, [the Defendant] began trying to kiss him on

the mouth while he struggled to stop him, did I read that correctly?

A. Yes.

Q. And finally in the [fourth] paragraph, you wrote: [the victim] stated,

he and [the Defendant] went back inside the church after the incident, did I

read that correctly?

A. Yes.

At the conclusion of the trial, the jury convicted the Defendant of the lesser-

included offense of aggravated sexual battery.

Sentencing Hearing

After the Defendant’s jury trial, the trial court conducted a sentencing hearing,

which proceeded as follows. The victim testified that in addition to the incident at the

church, there were other incidents involving the Defendant that made the victim feel

uncomfortable. The victim explained that he went on a church trip with the Defendant

and said,

We were going to Kansas, like the whole church like in the van that

they have, and like we were at the back with the other kids and [the

Defendant] was back there, too. And I just remember he was like really

close to me, and when he was there, he was like touching me. So I got

scared, so I moved to like the front – like the one before me. And then he

moved there too again. And then we came to where we were going to stop,

the place where we were going[.]

When asked what part of his body the Defendant was touching, the victim

responded, “My behind.” The victim testified that this incident occurred before the

incident at the church.

Augustine Menge testified on behalf of the Defendant. She said that she had

known the Defendant since approximately 2010, when she joined the same church he

attended. Ms. Menge explained that there were church services on “Mondays,

Wednesdays, Fridays, Saturdays[,] and Sundays.” She said that she saw the Defendant

“in church and [her] husband and [the Defendant] would work together.” She said that

she and her husband “visit[ed] him in his house” and saw him “very often.” When asked

about the Defendant’s reputation at work, Ms. Menge replied, “Everybody really loves

-15-

him.” Ms. Menge testified that the Defendant was “very responsible” and that he often

volunteered to drive for church road trips. She explained that she and her husband had

children who went on these trips and that other children from the church went on these

trips. When asked why the Defendant was often asked to drive on these trips, Ms. Menge

said, “Because we [were] aware of his ability of driving long distances and he [was] also

very capable and responsible[.]” She further explained that the church van held fifteen

people and that “there were children in this van, so [church members] really want[ed] to

confide in somebody who could actually get [them] there safely and bring [them] back

safely.” Ms. Menge testified that the Defendant was “very good with [her] kids.”

Salvador Perez testified that he first met the Defendant in El Salvador when Mr.

Perez “was about 18 years old.” Mr. Perez testified that the Defendant moved to

Nashville in 2000. He explained that he knew the Defendant to be “a very good person.”

Mr. Perez said that after the Defendant moved to Nashville, “[h]e [was] a very

hardworking person. He [was] very dedicated, [was] always working. And he [had]

worked in several different fields.” Mr. Perez testified that the Defendant had three

daughters who lived in El Salvador and were approximately ages twenty, eighteen, and

seventeen. When asked what kind of father the Defendant was, Mr. Perez replied, “He

ha[d] been a very good father. He [was] very responsible and very hardworking for his

children.” Mr. Perez agreed that the Defendant sent his daughters money and that “[h]e

always communicated with his children and he help[ed] his parents because they [were]

elderly[.]” Mr. Perez concluded that he knew the Defendant as “an excellent person” and

that he helped “anybody who [had] ever come to him for help[.]”

Mario Hernandez testified that he is the Defendant’s brother. He said that after

coming to the United States, the Defendant worked in construction and “was a good

worker.” He said that the Defendant had a “very good” relationship with the community.

When asked what kind of brother the Defendant was, Mr. Hernandez replied that he was

“very good.” Mr. Hernandez agreed that the Defendant had a family and was “a good

father.” He explained that the Defendant had three daughters living in El Salvador and

that the Defendant had “always been responsible” as a father. Mr. Hernandez testified

that “one of [the daughters was] studying and she had to stop her studies due to the lack

of financial support from her father” after he was arrested.

After the final witness testified, counsel for the Defendant also asked the trial

court to take note that several members of the Defendant’s church-family and friends

were present to offer their support. At the conclusion of the sentencing hearing, the trial

court sentenced the Defendant to serve an eleven-year sentence at one hundred percent

with the Tennessee Department of Correction.

-16-

The Defendant filed a motion for a judgment of acquittal and a motion for a new

trial. The trail court denied both motions, and the Defendant filed a timely appeal with

this court.

ANALYSIS

I. Forensic Interview

The Defendant argues that the trial court erred in admitting the video recording of

the forensic interview as substantive evidence. First, the Defendant contends that the

video recording was not generally admissible pursuant to Tennessee Code Annotated

section 24-7-123 and “that the trial court abused its discretion in admitting the recording

in this case because it improperly bolstered the testimony of the alleged victim.” The

Defendant asserts that the interview “served only to bolster the testimony of the alleged

victim[] and created the danger of allowing the jury to be influenced to decide the case on

the repetitive nature of the interview instead of trial testimony.” The Defendant argues

that neither Tennessee Code Annotated section “24-7-123 nor State v. McCoy, 459

S.W.3d 1, 10 (Tenn. 2014), support automatic admissibility of forensic interviews as

substantive evidence” and contends that the trial court abused its discretion by admitting

the video recording. Moreover, the Defendant argues that the video recording should

have been excluded under section 24-7-123(b)(2)(K) as “any other factor deemed

appropriate by the court” because the video recording improperly bolstered the victim’s

testimony.

Alternatively, the Defendant contends that should the video recording be generally

admissible, the trial court erred in not redacting portions of the interview that were

irrelevant and unduly prejudicial. The State responds that the trial court properly

exercised its discretion in admitting the recording of the victim’s forensic interview as

substantive evidence pursuant to Tennessee Code Annotated section 24-7-123.

A. General Admissibility

Tennessee Code Annotated section 24-7-123(a) states that

a video recording of a child by a forensic interviewer containing a

statement made by the child under thirteen years of age describing any act

of sexual contact performed with or on the child by another is admissible

and may be considered for its bearing on any matter to which it is relevant

in evidence at trial of the person for any offense arising from the sexual

contact if the requirements of this section are met.

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Tennessee Code Annotated section 24-7-123(b) provides that a video recording of a

forensic interview may be admitted if:

(1) This child testifies, under oath, that the offered video recording is a true

and correct recording of the events contained in the video recording and the

child is available for cross[-]examination;

(2) The video recording is shown to the reasonable satisfaction of the

court, in a hearing conducted pre-trial, to possess particularized guarantees

of trustworthiness. In determining whether a statement possesses

particularized guarantees of trustworthiness, the court shall consider the

following factors:

(A) The mental and physical age and maturity of the child;

(B) Any apparent motive the child may have to falsify or distort the event,

including, but not limited to, bias or coercion;

(C) The timing of the child’s statement;

(D) The nature and duration of the alleged abuse;

(E) Whether the child’s young age makes it unlikely that the child

fabricated a statement that represents a graphic, detailed account beyond the

child’s knowledge and experience;

(F) Whether the statement is spontaneous or directly responsive to

questions;

(G) Whether the manner in which the interview was conducted was

reliable, including, but not limited to, the absence of any leading questions;

(H) Whether extrinsic evidence exists to show the defendant’s opportunity

to commit the act complained of in the child’s statement;

(I) The relationship of the child to the offender;

(J) Whether the equipment that was used to make the video recording was

capable of making an accurate recording; and

(K) Any other factor deemed appropriate by the court[.]

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Id. § 24-7-123(b) (emphasis added). If the court determines that the video recording is

not trustworthy, the inquiry ends, and the evidence will not be admitted. See id. § -

123(b)(2). Ultimately, discretion regarding the admissibility of the evidence remains

with the trial court. See id. § -123(a).

The Defendant relies on State v. Herron, 461 S.W.3d 890 (Tenn. 2015), to argue

that the forensic interview was improperly admitted to bolster the victim’s testimony.

See id. at 904 (holding that “the trial court abused its discretion by admitting [the

victim’s] recorded forensic interview during her direct examination”). The victim in

Herron was sixteen years old at the time of her forensic interview. In State v. Travis

Smith, No. W2015-02360-CCA-R3-CD, 2017 WL 1959500, at *15 (Tenn. Crim. App.

May 11, 2017), the defendant similarly argued that under State v. Herron, the trial court

improperly admitted a recording of the victim’s forensic interview to bolster the victim’s

trial testimony. However, this court held that the defendant in Smith mistakenly relied on

Herron because “Herron specifically noted that [Tennessee Code Annotated section 24-7-

123] did not apply because the victim in that case was above the age required by the

statute at the time she was interviewed.” Smith, 2017 WL 1959500, at *15. The Travis

panel concluded that the victim’s forensic interview was properly admitted under

Tennessee Code Annotated section 24-7-123 because “the statutory requirements were

met.” Id.

Similarly, the Defendant in this case has mistakenly relied on Herron to support

his contention that the victim’s forensic interview was improperly admitted. Here, the

trial court held a pre-trial hearing to determine the admissibility of the forensic interview

in accordance with Tennessee Code Annotated § 24-7-123(b). The record reflects that

the trial court considered this statute in making its determination regarding the

admissibility of the video recording. The victim testified under oath that the video was a

true and correct recording of the events, and he was subjected to cross-examination by

defense counsel. See § -123(b). The forensic interviewer testified, and the trial court

determined that she met the requirements of Tennessee Code Annotated section 24-7-

123(b)(3). The trial court also determined that the video recording had particularized

guarantees of trustworthiness. See id. § 24-7-123(b)(2). Furthermore, the Defendant

does not contend that the requirements of subsection (b) were not met. We conclude that

the statutory requirements are met and that the victim’s forensic interview was properly

admitted.

B. Portions of Interview Not Properly Redacted

Alternatively, the Defendant argues that even if the forensic interview was

generally admissible, several statements from the interview should have been redacted

because they violate various Tennessee Rules of Evidence. The Defendant contends that

-19-

the following statements from the victim’s forensic interview should have been redacted

because they were “irrelevant and unduly prejudicial”:

- [25:45-26:15] Ms. Tallent: That makes a lot of sense . . . you know

that this isn’t your fault. You did not do anything to deserve that. [The

Defendant] shouldn’t have done that and it was his bad choice, and I’m so

sorry.

- [29:59-21:20] Ms. Tallent: Had [the Defendant] done anything

before that made you feel funny or weird, or different?

 Victim: “[The Defendant was] always with other men. It’s

really weird that he’s always with this other man. It’s

awkward.

- [35:47-35:49] Ms. Tallent: I’m so sorry.

- [37:40-37:45] Ms. Tallent: You said your heart was pounding, which

makes sense.

- [41:10-41:16] Ms. Tallent: You know that [your parents’] anger and

being upset is not because of anything you’ve done, right? . . . It shouldn’t

have happened to you[,] but you didn’t do anything wrong. [The

Defendant] did.

- [48:11-49:03] Ms. Tallent: Do you know if [the Defendant has] done

something to anyone else?

 Victim: I don’t know. . . . I heard that he used to have men

over and women and do stuff to them . . . but I don’t know if

that’s true. That’s what I heard.

- [50:10-52:15]: The victim describes an incident at school involving

another student in his class. He explained that the student kicked open the

door to the bathroom stall that the victim was using and that the victim

closed the door back and informed his teacher about the incident.

This court has held that Tennessee Code Annotated section 24-7-123

does not “remove the discretion of a trial judge in making determinations of

logical or legal relevancy.” State v. Mallard, 40 S.W.3d 473, 483 (Tenn.

2001). Rather, the statute provides that a recording of a forensic interview

“may be considered for its bearing on any matter to which it is relevant....”

Tenn. Code Ann. § 24-7-123(a) (emphasis added). A trial court may

exclude a recording if it finds that it is not relevant to the issues at trial.

Moreover, even if the video recording satisfies the statutory prerequisites in

section 24-7-123, the trial court is afforded the discretion to determine that

the recording is nevertheless inadmissible. See Tenn. Code Ann. § 24-7-

123(b) (providing that the “video recording may be admitted”)

-20-

State v. Marvin Davis, No. W2013-00656-CCA-R3CD, 2014 WL 1775529, at *8 (Tenn.

Crim. App. May 1, 2014).

The general admissibility of evidence is governed by Tennessee Rules of Evidence

401 and 403. Under these rules, the trial court must determine, first, whether the

evidence offered is relevant. Tenn. R. Evid. 401. Evidence is deemed relevant if 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. Although relevant evidence is generally admissible, see

Tennessee Rule of Evidence 402, it “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence[.]” See Tenn. R. Evid. 403; State v. Banks, 564

S.W.2d 947, 950-51 (Tenn. 1978). The term “unfair prejudice” has been defined as “[a]n

undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Banks, 564 S.W.2d at 950-51. This court has also stated

that “[p]rejudice becomes unfair when the primary purpose of the evidence at issue is to

elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v.

Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of

Federal Evidence, 182-83 (2d ed. 1986)).

The Tennessee Rules of Appellate Procedure provide for harmless error review in

such cases. See Tenn. R. App. P. 36(b). Improperly admitted evidence is reviewed under

a non-constitutional harmless error analysis. State v. Jeff Carter, No. 2009-02399-CCA-

R3-CD, 2010 WL 5343212 at *13 (Tenn. Crim. App. Dec. 16, 2010) (citing State v.

Powers, 101 S.W.3d 383, 397 (Tenn. 2003)). In determining whether non-constitutional

errors are harmless, “Tennessee law places the burden on the defendant who is seeking to

invalidate his or her conviction to demonstrate that the error ‘more probably than not

affected the judgment or would result in prejudice to the judicial process.’” State v.

Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (quoting Tenn. R. App. P. 36(b)). While

substantial evidence of the defendant’s guilt makes it difficult for “the defendant to

demonstrate that a non-constitutional error involving a substantial right more probably

than not affected the outcome of the trial,” harmless error inquiry “does not turn upon the

existence of sufficient evidence to affirm a conviction or even a belief that the jury’s

verdict [wa]s correct.” Id. at 372. Rather, “the crucial consideration is what impact the

error may reasonably be taken to have had on the jury’s decision making.” Id.

Here, even if the statements challenged by the Defendant were improperly

admitted under the Tennessee Rules of Evidence, any error was harmless. None of the

statements in the video were so prejudicial that they more probably than not affected the

jury’s decision making. The victim’s story regarding the incident in the bathroom at

-21-

school was not relevant; however, it had nothing to do with the Defendant. Moreover,

the trial court did redact two of Ms. Tallent’s comments to the victim that were overly

prejudicial; yet, the trial court did not find any of the statements the Defendant

challenged to be overly prejudicial. Although the victim talked about other behavior by

the Defendant, such behavior did not involve children, and the victim stated that he was

unsure if the allegations involving others were true. Additionally, men spending time

with other men has no inherent negative sexual connotation. The other statements by the

interviewer were simply statements of empathy. We conclude that any error in admitting

the above statements was harmless.

II. Behavioral Characteristics Typical of Perpetrators of Sexual Abuse

The Defendant argues that the trial court erred in allowing “the State to present

evidence and argument suggesting that the Defendant displayed behavioral characteristics

typical of perpetrators of child sexual abuse.” The State responds that the testimony

challenged by the Defendant “did not constitute proof suggesting the Defendant exhibited

behavior typical of child predators or propensity evidence.” Furthermore, the State

contends that this issue is waived because the Defendant failed to object to the comment

in question and that the Defendant has failed to demonstrate plain error. We agree with

the State.

The following testimony during defense counsel’s cross-examination of the victim

at trial gave rise to the Defendant’s argument on appeal:

Q: And you never saw anything strange happen between [the

victim] and [the Defendant]?

A: Yes, I would say that [the Defendant] was very friendly with

children. He would buy them candy.

The following colloquy occurred during the State’s redirect examination of the

victim’s father:

Q: [J.F.A.C.], [defense counsel] asked you about . . . the situation

with her about the [D]efendant being friendly with the children of the

church?

A: Yes.

Q: And did the – to you knowledge did the children of the church

like the defendant?

-22-

A: On, yes. He would walk into the church, the children [would]

follow him.

Q: You told us . . . that he would give them candy –

At this point, counsel for the Defendant requested a bench conference out of

hearing of the jury. Counsel for the State explained that he was asking the victim’s father

to clarify what he was talking about when he stated that the Defendant gave the kids

candy. Defense counsel responded that there was nothing to clarify about the statement

but failed to make an objection or request the court strike the statement. The prosecutor

did not ask the witness anymore questions regarding the Defendant’s giving the children

candy.

Although the issue was raised by the Defendant on appeal, any error was

unattended by a contemporaneous objection at trial. See Tenn. R. Evid. 103 (stating that

a timely objection “stating the specific ground of objection” is necessary to preserve

claim of erroneous admission of evidence); see also State v. Robert Simerly, No. E2002-

02626-CCA-R3-CD, 2004 WL 443294, at *5 (Tenn. Crim. App. Mar. 11, 2004).

Accordingly, the Defendant has waived our consideration of this claim. See Tenn. R.

App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a

party responsible for an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error.”). It is thus reviewable only

for plain error. See Tenn. R. App. P. 36(b) (stating that this court may notice an error as

plain error if the error affected the substantial rights of an accused and if notice of the

error is necessary to do substantial justice).

In determining whether plain error review is appropriate, the following factors

must be established:

(a) the record ... clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641–42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of

establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.

-23-

2007) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The appellate court

need not consider all five factors if any single factor indicates that relief is not warranted.

Smith, 24 S.W.3d at 283.

Here, a witness testified that the Defendant “gave all the kids candy.” This

statement was in response to a question by defense counsel during cross-examination.

On redirect, the witness was asked to clarify, and following a bench conference, was not

asked anymore questions about candy. We note that the effect of giving children candy is

not necessarily indicative of sexual predators. Thus, the Defendant has failed to show

that a clear and unequivocal rule of law has been breached. Moreover, the Defendant has

failed to show that a substantial right of the accused has been breached. The comment

was not overly prejudicial, and the State used it to help establish the Defendant’s

relationship with the victim. Therefore, he is not entitled to plain error relief.

III. Closing Argument

The Defendant argues that he is entitled to a new trial due to prosecutorial

misconduct during closing argument. Specifically, he argues that the State committed

prosecutorial misconduct when “the prosecutor improperly argued matters outside the

record, speculating that the [D]efendant’s motivation for having a sexual encounter with

a child was to avoid ‘strings’ that come with adult relationships.” The Defendant also

contends that the prosecutor “effectively shifted the burden of proof to the [D]efendant,

arguing that ‘the [D]efendant is the reason that everyone had to come into this

courtroom.’” The State responds that the prosecutor’s comments during closing

argument did not constitute misconduct. We agree with the State.

The prosecutor’s specific comments to which the Defendant objects occurred

during closing argument and are as follows:

And of the [J.F.A.C.’s] questions [during the recorded phone call] –

one of [J.F.A.C.’s] questions is very relevant to your analysis. He say

[Defendant], please have the courage to tell me why. Why, [Defendant],

having older women and older men, why [Defendant], why have you done

that to my son.

And the answer to that question is in the question. Because the

answer is the [D]efendant did this [to] [J.F.A.C.’s] son because [the victim]

is not an older man or an older woman. Because what comes with older

women or older men? What comes with that? Strings. He didn’t want to

have a relationship.

....

-24-

This phone call tells you everything you need to know. You had

enough when you had the child statement alone, you had the testimony

from the child. You’ve had more than enough proof in this case, but this is

all you need to know. [The victim] was an [eleven]-year-old child. [The

victim] had something taken from him that he can never get back. The

[D]efendant is the reason that everyone had to come into this courtroom.

Defense counsel specifically objected to each of the previously referenced statements by

the prosecutor, but the trial court overruled these objections.

Our supreme court has consistently opined on prosecutorial misconduct regarding

closing arguments as follows:

The basic purpose of closing argument is to clarify the issues that

must be resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn.

2008). While “argument of counsel is a valuable privilege that should not

be unduly restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975),

“such . . . arguments must be temperate, based upon the evidence

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

improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn.

Crim. App. 2003); Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.

1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999).

Because closing argument affords an opportunity to persuade the jury, 11

David L. Raybin, Tennessee Practice: Criminal Practice and Procedure §

29.2, at 97 (2008), leeway should be given regarding the style and

substance of the argument. Banks, 271 S.W.3d at 131; State v. Cauthern,

967 S.W.2d 726, 737 (Tenn. 1998). Hence, counsel may employ “forceful

language in their closing arguments, as long as they do not stray from the

evidence and the reasonable inferences to be drawn from the evidence.”

Banks, 271 S.W.3d at 131.

State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012).

The court has also advised that a criminal conviction should not be lightly

overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d

at 131 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57

S.W.3d 411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument

does not automatically warrant reversal)). “An improper closing argument will not

constitute reversible error unless it is so inflammatory or improper that it affected the

outcome of the trial to the defendant’s prejudice.” Id. (citing State v. Thacker, 164

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S.W.3d 208, 244 (Tenn. 2005) (appendix); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn.

1998)); see also State v. Reid, 164 S.W.3d 286, 321 (Tenn. 2005).

As explained by our supreme court in Sexton, there are five general areas of

potential prosecutorial misconduct related to closing argument:

(1) It is unprofessional conduct for the prosecutor intentionally to misstate

the evidence or mislead the jury as to the inferences it may draw. (2) It is

unprofessional conduct for the prosecutor to express his personal belief or

opinion as to the truth or falsity of any testimony or evidence or guilt of the

defendant. (3) The prosecutor should not use arguments calculated to

inflame the passions or prejudices of the jury. (4) The prosecutor should

refrain from argument which would divert the jury from its duty to decide

the case on the evidence, by injecting issues broader than the guilt or

innocence of the accused under the controlling law, or by making

predictions of the consequences of the jury’s verdict. (5) It is

unprofessional conduct for a prosecutor to intentionally refer to or argue

facts outside the record unless the facts are matters of common public

knowledge.

Sexton, 368 S.W.3d at 419 (citing Goltz, 111 S.W.3d at 6 (citations omitted)); see also

American Bar Association, Standards Relating to the Prosecution Function and the

Defense Function §§ 5 .8-5.9 (1970).

During closing arguments in this case, the State relied on facts entered into

evidence. During the recorded phone call with the Defendant, the victim’s father asked

the Defendant, “Why [Defendant] having older women and older men? . . . Why have

you done this to my son?” A transcript of this statement was entered into evidence

without objection from the Defendant; therefore, the prosecutor did not argue facts

outside the record. The prosecutor’s inference regarding why the Defendant sexually

assaulted the victim was not unreasonable. Furthermore, the trial court had instructed the

jury that “statements, arguments and remarks of counsel . . . are not evidence.”

Additionally, the Defendant has failed to show that the comment “the reason that

everyone had to come into this courtroom[]” shifted the burden of proof to the Defendant.

The victim identified the Defendant as the man who sexually assaulted him, and the State

had the burden of proving beyond a reasonable doubt that the Defendant was the

perpetrator. This statement did not change or shift that burden. The prosecutor’s

comments do not constitute misconduct; thus, the Defendant is not entitled to relief on

this issue.

IV. Jury Instruction

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The Defendant argues that the trial court erred in instructing the jury on

aggravated sexual battery as a lesser-included offense of rape of a child under Tennessee

Code Annotated section 39-13-522. He argues that aggravated sexual battery is not a

lesser-included offense of rape of a child “because it contains two different elements.”

The Defendant also argues that aggravated sexual battery is not a statutory lesser-

included offense of rape of a child under Tennessee Code Annotated section 40-18-110

“because it was not specified as such at the time of the offense in this case, and part (b) of

the test outlined in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), did not survive the 2009

amendments to section 40-18-110.” The State responds that the trial court properly

instructed the jury on aggravated sexual battery as a lesser-included offense of rape of a

child. We agree with the State.

Our Supreme Court specifically addressed this issue in State v. Howard, 504

S.W.3d 260, 263 (Tenn. 2016) and held that “aggravated sexual battery is, in fact, a

lesser-included offense of rape of a child.” In State v. Burns, our Supreme Court “set

forth the test for determining whether a criminal offense constitutes a lesser-included

offense of a charged offense[.]” Id. at 263. This court explained that under the test

articulated in Burns, an offense is lesser-included if:

(a) all of its statutory elements are included within the statutory elements of

the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it

contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of

culpability; and/or

(2) a less serious harm or risk of harm to the same person,

property or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense that otherwise

meets the definition of lesser-included offense in part

(a) or (b); or

(2) an attempt to commit the offense charged or an offense that

otherwise meets the definition of lesser-included offense in part

(a) or (b); or

(3) solicitation to commit the offense charged or an offense that

otherwise meets the definition of lesser-included offense in part

(a) or (b).

See Burns, 6 S.W.3d at 466-67.

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The 2009 amendments to Tennessee Code Annotated “codified Burns parts (a) and

(c) but excluded part (b).” Howard, 504 S.W.3d at 264. However, despite the exclusion,

the court held that “the statute did not abrogate part (b) of the Burns test.” Id. The court

explained that “[l]esser-included offenses are to be determined by referring to the express

provisions of [Tennessee Code Annotated section 40-18-110], and if not specifically

mentioned therein, by further applying the guidance of Burns part (b).” Id. at 263-64.

The Howard court analyzed the issue as follows:

“Rape of a child is the unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if the victim is more than three (3)

years of age but less than thirteen (13) years of age.” Tenn. Code Ann. §

39-13-522(a). “Sexual penetration” means “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however

slight, of any part of a person’s body or of any object into the genital or

anal openings of the victim’s, the defendant’s, or any other person’s body,

but emission of semen is not required.” Id. § 39-13-501(7). As applicable

to this case, a defendant commits the offense of aggravated sexual battery

when he or she engages in “unlawful sexual contact with a victim” and

“[t]he victim is less than thirteen (13) years of age.” Id. § 39-13-504(a)(4).

The statutory definition of “sexual contact” contemplates that the

“intentional touching can be reasonably construed as being for the purpose

of sexual arousal or gratification.” Id. § 39-13-501(6).

The primary difference between the two criminal offenses is that rape of a

child requires “unlawful sexual penetration,” while aggravated sexual

battery is accomplished by “unlawful sexual contact.” Because aggravated

sexual battery requires that the touching be reasonably construed as being

for the purpose of sexual arousal or gratification, which is not an element of

child rape, it cannot be considered a lesser-included offense in this case

under Burns part (a).

Pursuant to Burns part (b), however, unlawful sexual contact involves a less

serious risk of harm to the person, Burns, 6 S.W.3d at 466-67, and a

defendant’s “intent to touch a victim’s intimate parts for the purpose of

sexual arousal constitutes a mental state reflecting a lesser degree of

culpability than the reckless, knowing, or intentional commission of sexual

penetration for any reason,” State v. Greer, No. M1998-00789-CCA-R3-

CD, 2000 WL 284180, at *7 (Tenn. Crim. App. Mar. 17, 2000).

Accordingly, we hold that aggravated sexual battery is a lesser-included

offense under part (b) of the Burns test and that the trial court properly

instructed the jury as to this offense.

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Howard, 504 S.W.3d at 274-75.

Accordingly, aggravated sexual battery is a lesser-included offense of rape of a

child. Thus, the Defendant is not entitled to relief on this issue.

V. Length of Sentence

The Defendant contends that his sentence of eleven years’ confinement at one

hundred percent was excessive. Specifically, he argues that the trial court erred in

determining that he had a prior history of criminal behavior under Tennessee Code

Annotated section 40-35-114(1) and that the trial court failed to “recognize his positive

work and family history as a statutory mitigating factor under” Tennessee Code

Annotated section 40-35-113(13). The Defendant also argues that his sentence is

“greater than that deserved for the offense committed” and “is not the least severe

sentence necessary to achieve the purposes for which the sentence is imposed” in

violation of Tennessee Code Annotated sections 40-35-103(2) and (4). The State

responds that the Defendant’s sentence was proper because it was “within the applicable

range of punishment and the trial court’s reasons are supported by the proof and

consistent with the purposes and principles of sentencing.” We agree with the State.

The Sentencing Reform Act was enacted in order “to promote justice” by ensuring

that every defendant “be punished by the imposition of a sentence justly deserved in

relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to

implement the purposes of the Sentencing Reform Act, trial courts must consider several

sentencing principles. The sentence imposed for an offense “should be no greater than

that deserved for the offense committed” and “should be the least severe measure

necessary to achieve the pruposes for which the sentence is imposed.” Tenn. Code Ann.

§ 40-35-103(2), (4). Thus, before a trial court imposes a sentence upon a convicted

criminal defendant, it must consider: (a) the evidence adduced at the trial and the

sentencing hearing; (b) the presentence report; (c) the principles of sentencing and

arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal

conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-

35-113 and 40-35-114; (f) any statistical information provided by the Administrative

Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any

statement the defendant wishes to make in the defendant’s own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

When an accused challenges the length and manner of service of a sentence, this

court reviews the trial court’s sentencing determination under an abuse of discretion

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

682, 707 (Tenn. 2012). This court will uphold the trial court’s sentencing decision “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. Moreover, under such circumstances, appellate courts may not disturb

the sentence even if we had preferred a different result. See State v. Carter, 254 S.W.3d

335, 346 (Tenn. 2008). The burden of showing that a sentence is improper is upon the

appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also

State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

In determining the Defendant’s sentence, the trial court reasoned as follows:

The Court recalls this trial and looking back through my notes regarding the

testimony there and heard the testimony here today, [I am aware] of the

purposes for sentencing, sentencing considerations under 40-35-102 and

103, some of them have been – some of those statutory laws have been

mentioned here today.

....

In terms of enhancing factors, the court does find that some apply.

In terms of – there is no question in the court’s mind that the abuse – that

[the Defendant] abused a position of trust applies. I mean, the incident that

we are talking about occurred at the family’s and [the Defendant’s] church.

I don’t know what position he holds in terms of whether that’s some

elected, nominated position, but he does have a position in the church in

terms of driving the individuals[,] including children[,] on trips. But . . . the

enhancing factor doesn’t require that he be in some elected position. It just

requires that that position of trust there where this incident occurred has

him, [the Defendant’s] exercising authority in this trusted place. A place

where most people would think there is safety involved. He, [the

Defendant] only comes into – only has the ability to be around the victim

because of that trusted, safe place, that church, that relationship that exists

between [the Defendant] and the young child here, which . . . [led] him, [the

Defendant] to be instructing or ordering [the victim] around and doing

things for him on that particular occasion which [led] to them being at a

location where other[s] were not around. So that enhancing factor is

present and the [c]ourt places significant weight on it.

In terms of the criminal behavior, thankfully, we are not talking

about other acts of rape of a child or significant trauma perpetrated on this

young child but I think the [c]ourt can consider the fact that [the

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Defendant], according to this young child, has initiated contact, sexual

contact with him in the past.

In terms of the notice, I mean, [the Defendant] is aware of, and the

attorneys are well aware . . . that was an allegation. I mean, we addressed it

in terms of redactions from the medical records and the phone call

transcript, so yes he’s aware that this young child has made claims that this

– not as sever[e], but conduct like this has occurred in the past. And

obviously that can be brought up at a sentencing hearing, but not before the

jury, so I don’t think there is any due process violations in terms of notice.

I mean . . . [the Defendant] references the Kansas trip in the phone

call and makes accusations against a young child about touching him [on]

multiple occasion[s], some of which was on that particular Kansas trip.

And those accusations also were in and around the referenced vigil, this

special church outing that was occurring in the situation where the jury

heard. I mean, [the victim] makes references of [the Defendant’s] touching

him under the table many times and references Kansas prior that that as

well. So, like I said it’s not some situation where multiple prior acts of

child rape have occurred, it’s a situation where [the Defendant], for

whatever reason has made advances towards this young child and then it

[led], according to the jury, to the aggravated sexual battery that they heard

about.

So [the Defendant] here, . . . could have been questioned more than

he was[] about the prior accusations that [the vicitm] is making, and there

has been nothing to contradict it submitted proof wise. And like I said, [the

Defendant] mentions that situation [during] the phone conversations with

the young child’s father. So those enhancing factors apply.

In terms of mitigating – and the State was arguing that [the

Defendant] did not accept responsibility. I have [mentioned], there is no

enhancing factor that the Court [is] aware of that . . . I can consider or

enhance a sentence because a defendant did not accept repsonsibility . . . .

But that’s not applicable here because [the Defendant] is not arguing that

that’s a mitigating factor because he [has] not acknowledged anything in

terms of [a] statement he’s made in the presentence report. There were

some statements made as I mentioned in a phone call in terms of taking

repsonsibility but it didn’t arise to penetration, didn’t go that far,

understands that, but that’s not [an] enhancing factor nor do I find it’s a

mitigating factor under the catchall provisions and further I don’t find that

any other mitigating factors apply.

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So based on that and the statutes the Court’s mentioned previously,

the [c]ourt will impose an [eleven-]year sentence at [one hundred] percent

to serve with the statutory requriements upon his release.

In this case, we hold that the trial court did not abuse its discretion in applying

enhancement factor number one, “the defendant has a previous history of . . . criminal

behavior.” Tenn Code Ann. § 40-35-114(1). The victim testified at the sentencing

hearing that he attended church trips with the Defendant and that on one of these trips,

the Defendant touched him in such a way that made him uncomfortable. The trial court

also referenced several such accusations by the vicitm in the recorded phone call and his

medical records. At the hearing, the Defendant put on no proof that these allegations

were false. Additionally, the Defendant does not question the trial court’s application of

enhancement factor number fourteen, “the defendant abused a position of public or

private trust.” Tenn Code Ann. § 40-35-114(14). The trial court, as was its perogative,

declined to take into account any of the Defendant’s mitigating evidence such as his work

history and “family history.” The Defendant has failed to show that the sentence was

improper, and he is not entitled to relief on this issue.

VI. Cumulative Error

Finally, the Defendant argues that cumulative errors committed during his trial

entitle him to a new trial on all charges.2 Under the cumulative error doctrine, our

supreme court has stated,

[T]here may be multiple errors committed in trial proceedings, each of

which in isolation constitutes mere harmless error, but which when

aggregated, have a cumulative effect on the proceedings so great as to

require reversal in order to preserve a defendant’s right to a fair trial.

State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). Therefore, necessarily, “[t]o warrant

assessment under the cumulative error doctrine, there must have been more than one

actual error committed in the proceedings.” Id.

Here, there was not “more than one actual error committed in the proceedings.”

See Hester, 324 S.W.3d at 76. Accordingly, we hold that the Defendant is not entitled to

relief on the basis of cumulative error.

2

We note that the Defendant does not raise cumulative error as a separate, sixth issue. Rather, he

includes this as part of his argument regarding prosecutorial misconduct.

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CONCLUSION

Based upon consideration of the foregoing and the record as a whole, we affirm

the judgment of the trial court.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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