State of Tennessee v. Raymond Arthur Klein

09/06/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 8, 2017

STATE OF TENNESSEE v. RAYMOND ARTHUR KLEIN

Appeal from the Circuit Court for Montgomery County

No. 41201121 William R. Goodman, III, Judge

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No. M2017-00061-CCA-R3-CD

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The defendant, Raymond Arthur Klein, appeals his convictions and sentences for

aggravated sexual battery and criminal attempt to commit rape of a child. The defendant

argues there is insufficient evidence to support the jury’s verdict. Additionally, the

defendant argues a violation of his Sixth Amendment right to confront the witnesses

against him because he was not permitted to introduce the results of a polygraph

examination from a prior investigation. Finally, the defendant argues his sentence was

improperly ordered to be served consecutively to a prior sexual battery conviction.

Following our review, we affirm the judgments and sentence of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER

and D. KELLY THOMAS, JR., JJ., joined.

Jacob W. Fendley, Clarksville, Tennessee, for the appellant, Raymond Arthur Klein.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; John W Carney, District Attorney General; and David H. Findley, Assistant

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

OPINION

FACTS

A. Trial

On June 12, 2012, a Montgomery County grand jury indicted the defendant for

three counts of sexual exploitation of a minor, one count of rape of a child, and one count

of aggravated sexual battery. The State ultimately dismissed the three sexual exploitation

counts, and the defendant went to trial on the rape of a child and aggravated sexual

battery charges. The victim in this case, A.K., is the defendant’s daughter and was six

years old at the time of the abuse.1

M.K., the victim’s mother and the defendant’s former wife, initiated the

investigation of the defendant after the victim disclosed the abuse.2 M.K. stated that in

December of 2010, she and the defendant were in the process of getting a divorce, despite

still residing in the same house. M.K. indicated a desire to return to New York once the

divorce was finalized. She stated that prior to the accusation the defendant was likely to

receive custody of the victim for 100 days out of the year as part of the proposed

parenting plan.

M.K. testified that the victim had diaper rash problems when she was younger,

which necessitated applying lotion to the victim’s vaginal areas. At one point the

defendant had informed M.K. that the victim had placed his hand on her vaginal area

because she was “itchy.” The defendant at this point expressed concern to M.K. that the

victim was being abused.

M.K. also stated she would often see the defendant and the victim under the bed

covers together watching cartoons. She did not see this as a concern because, “[it] was

[the victim’s] father.” M.K. indicated that in December 2010 the victim told her the

defendant had been abusing her. M.K. contacted the police and confronted the defendant.

When asked by M.K. “Why [the defendant] had done it,” the defendant asked “When?”

M.K. testified that she had not instructed the victim to fabricate the allegations or the

facts surrounding them.

On cross-examination, M.K. was asked about the contentious nature of the

divorce. M.K. responded that her marriage to the defendant was not stable and that they

had separated “a few times” throughout the course of the marriage.

Additionally, M.K. was questioned about a prior allegation of abuse against the

defendant concerning the victim. M.K. testified that after this prior allegation surfaced,

she contacted the Department of Child Services (“DCS”). In response, DCS began an

investigation, and, as part of this investigation, the defendant was given a polygraph

examination. The polygraph results did not indicate the defendant had abused the victim,

1

It is the policy of this Court to refer to victims of sexual abuse by their initials. For purposes of

this opinion “the victim” will refer to A.K. unless otherwise noted.

2

In order to further protect the victim’s identity, we will utilize initials when referring to

her mother.

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and DCS concluded the allegations were unfounded. While M.K. was being questioned

about the DCS investigation on cross-examination, the following exchange took place:

Defense counsel: Okay. And DCS investigated this?

Victim’s mother: Yes. They did

Defense counsel: [The defendant] took a polygraph examination and passed

it?

Prosecution: Objection, your Honor

Trial court: Sustained

Defense counsel: Well, Judge, I’m just trying to get why she stayed with

him.

Trial court: Alright. Just Ask. Sustained.

Defense counsel: And you decided to stay with him after DCS did their

investigations. Correct?

Victim’s mother: Yes.

Defense counsel: So those allegations were unfounded?

Victim’s mother: Yes.

M.K. testified that she did not find the prior allegation to be as serious as the December

abuse. When asked what set the prior accusation apart, she stated the victim was very

“nonchalant” in recounting what happened to prompt the DCS investigation, but the

victim was “very, very upset” while relating the abuse that occurred in December 2010.

M.K. indicated the victim had a “nickname” to describe the 2010 abuse: “the secret.”

At the conclusion of M.K.’s testimony, a bench conference was held to further

discuss the defendant’s question about the polygraph examination. At the conclusion of

the bench conference, the trial court issued a curative instruction directing the jury not to

consider the question relating to the polygraph examination. Specifically the trial court

instructed the jury:

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All right, Ladies and Gentlemen, there was a question asked on cross-

examination of [M.K.], question asked that had the word polygraph in it,

and I am instructing you at this point to disregard that question; to put that

question out of your mind and to not speculate as to what the response

would be.

The State next called Detective Larry Boren, of the Clarksville Police Department,

who was in charge of investigating the victim’s allegations. When Detective Boren

spoke to the defendant, the defendant claimed the only time he touched the victim was to

apply the lotion for her diaper rash. Detective Boren testified further that the defendant

told him that he would routinely watch cartoons with the victim in his bed and other

places in the house. Finally, Detective Boren indicated he gained all the information

concerning the abuse of the victim from M.K. and the defendant and that he did not

interview the victim.

The State then called the victim, who was twelve years old at the time of trial, and

who was six years old when the abuse occurred. When asked on direct examination

“about the time [the defendant] did something,” the victim responded she was in the

defendant’s bedroom, in bed with defendant. The victim testified about the design of the

comforter on the bed and the television show they were watching. The State asked the

victim: “[T]his time we are talking about where you and your dad are laying in the bed

watching [cartoons], where were your dad’s hands?” The victim responded: “[T]hat’s

when my dad would do the thing to me.” The victim proceeded to testify the defendant

would pull down her underwear, rest his hands on her vagina, rub “in a circle” on her

vagina, as well as digitally penetrate her.

When questioned about why she did not tell her mother, the victim testified the

defendant told the victim her mother would “leave her behind or not believe her.” The

victim testified due to these threats, she did not come forward because “she [could not]

imagine life without her [mother].” The victim also testified she was unaware her parents

were going through a divorce at the time of the abuse. When asked about her current

opinion of the defendant, the victim stated “she still loved him” but “if [the defendant]

loved [her] why would he do it.”

The State concluded its direct examination of the victim by asking about what she

did for Christmas that year. The victim testified that she traveled to Long Island to see

her grandparents and recalled they were “happy to see her.” The State then asked if the

abuse “happed[ed] before [the victim] went to Long Island for Christmas.” The victim

confirmed that it had.

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Sue Ross, a forensic interviewer with Our Kids Center in Nashville, testified that

she interviewed and conducted a physical examination of the victim. According to Ms.

Ross, the victim was “apprehensive” during the exam and interview. Additionally, the

victim was reluctant to answer any questions about her genital area and did not want to

speak about any touching. Ms. Ross stated such behavior is not “uncommon” for

children. The forensic physical examination showed no damage to the victim’s vagina or

hymen. Ms. Ross noted, though, that with a child of that age, digital penetration would

likely not leave any detectable evidence. Ms. Ross testified that in her professional

experience with abuse cases involving digital penetration, absent extreme force, it is very

unlikely for a physical exam to reveal any injuries to the genital area. In cases of familial

sexual abuse, a lack of vaginal injury is also very common because the abuser is usually

far less forceful with the victim. Ms. Ross noted even without injury she would never

rule out sexual abuse because “the most important thing is what [the victim] is saying.”

After this testimony, the State rested and the defendant did not put on any additional

proof.

After closing statements, the jury was instructed on the elements of rape of a child

and aggravated sexual battery. During deliberations, the jury returned a question for the

trial court. The jury asked: “It is unclear whether or not the touching that occurred

happened multiple times from Jan. 2010 to Dec. 2010 or only once; can you clarify?”

After consulting with both the State and the defendant, the trial court informed the jury as

follows:

My instructions to you [are] that you are to base your decision in this

case, and your verdict, on the evidence you have heard in the courtroom.

And your decision is to be based — or the verdict is to be rendered with

reference to the charges that are embraced in the indictment. All right? All

right.

Upon completion of the deliberations, the jury returned a verdict of guilty of aggravated

sexual battery and of the lesser-included offense of criminal attempt to commit rape of a

child. The judge polled the jury to confirm a unanimous verdict.

B. Sentencing

During the sentencing hearing, the defendant submitted as mitigating factors that

his conduct “did not threaten serious bodily injury” and that he “was suffering from a

mental . . . condition that significantly reduced the defendant’s culpability.” See Tenn.

Code Ann. § 40-35-113(1),(8). In turn, the State argued the defendant’s sentence should

be enhanced because “the defendant [had] a previous history of criminal convictions or

criminal behavior;” “the offense involved a victim and was committed to gratify the

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defendant’s desire for pleasure or excitement;” and “the defendant abused a position of . .

. private trust . . . in a manner that significantly facilitated the commission or the

fulfillment of the offense.” See Tenn. Code Ann. § 40-35-114(1),(7),(14). The State also

argued consecutive sentencing was appropriate because “the defendant [was] convicted

of two . . . statutory offenses involving sexual abuse of a minor.” See Tenn. Code Ann. §

40-35-115(b)(5). At the time of sentencing, the defendant was serving a nine-year term

for aggravated sexual battery of one of the victim’s friends. See State v. Klein, No.

M2014-02340-CCA-R3-CD, 2016 WL 493248, at *1-2 (Tenn. Crim. App. Feb. 9, 2016),

perm. app. denied (Tenn. June 23, 2016) (summarizing the facts of the defendant’s prior

charge).

The trial court accepted the first mitigating factor submitted by the defendant,

finding the conduct did not threaten serious bodily harm. However, upon considering

there was no factual basis to support it, the trial court rejected the defendant’s argument

that he suffered from a mental condition that reduced his culpability. The trial court

determined all three of the enhancement factors submitted by the State were applicable.

Accordingly, the trial court sentenced the defendant to concurrent ten-year sentences for

each conviction.

Next, the trial court considered the State’s request for consecutive sentencing

based on the defendant’s prior conviction for aggravated sexual battery. The trial court

noted under “State v. Wilkerson . . . the [c]ourt is required to make . . . an analysis of the

facts of the case” in order to apply consecutive sentencing. The trial court announced the

following determination:

The [d]efendant had previously been convicted of aggravated sexual

[battery] of . . . [the victim’s] friend, and then in the subject case before us

today he stands convicted of the aggravated sexual [battery] and attempted

rape of a child, which was his own child. Particularly disturbing to the

[c]ourt that the [d]efendant would do this to a child . . . to which he was

brought into contact with as a result of the friendship [the victim] had . . .

with another, and then that likewise, the same act would . . . occur on his

own child. . . . [P]articularly concerning to the court, the statements that

[the victim] made in testimony that she just wanted to know that her father

loved her. [That is] all she wanted. And I find that . . . is . . . residual

physical and mental damage to the victim in this case to have to deal with

the fact that one’s own parent would do this, and then to articulate that the

issue that remains is [the] question about whether the parent loves her.

Based on these facts, the trial court ordered the defendant’s sentences in the instant

matter to run consecutive with his prior conviction. On October 27, 2016, the defendant

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filed a motion for a new trial which was denied on February 12, 2017. This appeal

followed.

ANALYSIS

On appeal, the defendant challenges both his convictions and sentence. The

defendant argues there was insufficient evidence for a jury to convict him based on the

jury’s question during deliberations. Additionally, the defendant argues trial court’s

decision to bar questions about the polygraph results violated his right to cross-

examination and to confront the witnesses against him. Finally, the defendant argues the

trial court improperly set his sentence to run consecutively with his prior conviction. The

State argues there was sufficient evidence to convict the defendant on both counts; it was

proper to exclude questions about the polygraph; and the trial court acted within its

discretion in sentencing the defendant. Upon our thorough review of the record, we agree

with the State and affirm the judgments of the trial court.

A. Sufficiency of the Evidence

When the sufficiency of the evidence is challenged, the relevant question for the

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

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

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier of

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92

(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All

questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). Our Supreme Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge

and the jury see the witnesses face to face, hear their testimony and observe

their demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d

523 (1963)). “A jury conviction removes the presumption of innocence with which a

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

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of

fact must evaluate the credibility of the witnesses, determine the weight given to

witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245

S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978)). Moreover, the jury determines the weight to be given to circumstantial

evidence and the inferences to be drawn from this evidence and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence are questions

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d

646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,

shall not reweigh the evidence or substitute its inferences for those drawn by the trier of

fact. Id.

The defendant was convicted of criminal attempt to commit rape of a child and

aggravated sexual battery. 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 years of

age but less than thirteen 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). A person commits criminal attempt who,

acting with the kind of culpability otherwise required for the offense, intentionally

engages in action or causes a result that would constitute an offense, if the circumstances

surrounding the conduct were as the person believes them to be. Id. § 39-12-101(a)(1).

Aggravated sexual battery is unlawful sexual contact with a victim by the

defendant or the defendant by a victim less than thirteen years of age. Id. § 39-13-

504(a)(4). Sexual contact, in the relevant part is “the intentional touching of the victim's .

. . intimate parts, or the intentional touching of the clothing covering the immediate area

of the victim's . . . intimate parts, if that intentional touching can be reasonably construed

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as being for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6) (2010)

(amended 2013). “Intimate parts” includes “semen, vaginal fluid, the primary genital

area, groin, inner thigh, buttock or breast of a human being[.]” Id. at (2).

The State provided the following proof at trial. First, the State provided

uncontested testimony that the victim was six years old at the time of the abuse. Second,

the State presented testimony that the defendant digitally penetrated the victim while the

defendant and the victim were in bed together watching television. The State pinpointed

December as the month in which the abuse occurred with the victim’s testimony,

supported by her memory of seeing her grandparents in Long Island for Christmas.

Based on this testimony, the State provided evidence to satisfy the elements of offenses

for which the defendant was convicted. The defendant had unlawful sexual contact with

a six year old by attempting to digitally penetrate her. We, therefore, find the evidence

sufficient to sustain the jury’s verdict.

The defendant argues there is insufficient evidence because the jury returned the

following question: “It is unclear whether . . . the . . . touching that occurred happened

multiple times from [January] 2010 to [December] 2010 or only once. Can you clarify?”

The defendant theorizes that the proof from the State must not have been sufficiently

clear if the triers of fact were unable to determine if it was one allegation or several.

Therefore, the defendant argues there was not sufficient evidence to sustain the jury’s

verdict. We do not find this argument persuasive.

Procedurally, the defendant’s argument fails because he cites no law in support of

his claim that a question by the jury creates a presumption by this Court that the evidence

submitted at trial was insufficient to support the verdict. As a result, the argument is

waived. Tenn. R. App. P. 27(a)(7)(A) (requiring an argument to set forth: “the

contentions of the appellant with respect to the issues presented, and the reasons therefor,

including the reasons why the contentions require appellate relief, with citations to the

authorities and appropriate references to the record . . . relied on”). Ultimately, however,

a question by a jury for a clarification does not create a presumption of insufficient

evidence. Cf. State v. Cravens, No. 03C01-9309-CR-00319, 1994 WL 444623, at *3

(Tenn. Crim. App. Aug. 16, 1994) (determining there was no error in recharging the jury

after the jury requested a clarification). Assuming, arguendo, the clarification request did

raise such a presumption, as noted before, the State’s proof was sufficient to support the

jury’s verdict.

The State argues the defendant’s argument is not a sufficiency claim but instead is

an election of offenses claim. On consideration, we find the State properly elected in this

case. The State narrowed the jury’s consideration to the December abuse. However, in

child sexual abuse cases, “the [S]tate is not required to identify the particular date of the

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chosen offense” and “a particular offense can often be identified without a date.” State v.

Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). The prosecutor may ask the child victim “to

describe unique surroundings or circumstances that help to identify an incident,” which

may include “identify[ing] an assault with reference to a meaningful event in [the child’s]

life, such as the beginning of school, a birthday, or a relative’s visit.” Id.

The direct examination by the State focused on the particulars of the December

abuse. The victim not only testified to the acts of the defendant in December, but also the

design of the comforter on the bed at the time; what she was watching on television; and

her Christmas trip to see her grandparents in Long Island. While it can be inferred from

the testimony that this abuse was not isolated to December, the State satisfied its burden

to sufficiently narrow the jury’s review of the abuse that occurred on a specific day in

December. We conclude the victim’s testimony sufficient to sustain the verdict. See

Shelton, 851 S.W.2d at 137. Therefore, the defendant is not entitled to relief.

B. Right to Cross-Examination

The defendant argues that forbidding questions about the results of the DCS

polygraph examination concerning the prior allegation violated his right to cross-

examination and his right to confront his accuser. The State argues that this restriction

was proper, and it did not constrain the defendant’s ability to cross-examine M.K.

regarding her decision to remain in the marriage after the prior DCS investigation.

Additionally, the State argues that to the extent there may have been a restriction, it was

harmless error. After review, we agree with the State.

We need not address whether the polygraph results in of themselves are

admissible. It is settled law that polygraph evidence is inadmissible. State v. Damron,

151 S.W.3d 510, 515-16 (Tenn. 2004). To avoid exclusion, the defendant asserts the

polygraph examination was not offered to prove the truth of the matter asserted. The

defendant argues that his motive for asking M.K. about the results of his DCS polygraph

examination was to impeach M.K. We agree a defendant has the right to cross-examine

witnesses to impeach their credibility or to establish that the witnesses are biased. State

v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994). However, the defendant was not denied this

right.

The defendant cites two cases in support of his claim: Ferguson v. United States,

329 F.2d 923 (10th Cir. 1964) and State v. Howell, 868 S.W.2d 238 (Tenn. 1993). While

these cases do address a defendant’s right to confront his accuser, we do not find them

applicable to the instant case. These cases indicate that an outright denial of a

defendant’s attempt to impeach a witness violates the Sixth Amendment; however, the

trial court did not deny the defendant that opportunity. The defendant wished to show

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that M.K. did not truthfully believe he was abusing his daughter and that M.K. fabricated

the allegations to gain an advantage during the divorce. If, the defendant argues, M.K.

truly believed he was abusing his daughter then she would not have remained in the

marriage.

While the trial court did not allow specific questions about the polygraph, the

defendant was allowed to, and did, question M.K. on her decision to remain in the

marriage after the prior accusations were reviewed by DCS. On cross-examination M.K.

was asked why she stayed with the defendant; she responded that it was because the

allegations were unfounded. If the defendant failed the polygraph but then had been

cleared by DCS, we agree there might have been some impeachment value in allowing

the polygraph results. But the polygraph results were consistent with the DCS findings.

The defendant was permitted to “liberally” pursue their theory on cross-examination even

considering the exclusion of the polygraph results. See Johnson v. State, 477 S.W.2d

221, 223 (Tenn. Crim. App. 1971). Therefore the trial court did not abuse its discretion

in excluding the polygraph results. See id.

While we do not agree the defendant’s ability to liberally cross-examine the

witness was infringed, to the extent it may have been, this constitutes harmless error. A

violation of a right to cross-examination has been characterized as a trial error which is

subject to the harmless error doctrine. Momon v. State, 18 S.W.3d 152, 166 (Tenn.

1999), on reh’g (Mar. 30, 2000). “Harmless error review looks . . . to the basis on which

the jury actually rested its verdict.” Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).

[C]ourts often identify certain factors to aid in discerning the actual

basis on which a jury rested its verdict. For example, in [State v. Howell,

868 S.W.2d 238, 253 (Tenn. 1993)], this Court stated that a reviewing court

determining whether the denial of effective cross-examination is harmless

beyond a reasonable doubt should consider the following factors: (1) the

importance of the witness’s testimony in the prosecution’s case; (2) the

cumulative nature of the testimony; (3) the presence or absence of evidence

corroborating or contradicting the witness on material points; (4) the extent

of cross-examination otherwise permitted; and (5) the overall strength of

the prosecution’s case.

See Howell, 868 S.W.2d 238, 253 (Tenn. 1993) (citing Delaware v. Van Arsdall, 475

U.S. 673, 685-86 (1986)). While M.K.’s testimony was critical to the prosecution’s case,

the consistency of the polygraph results with the DCS’s conclusion points to the

polygraph evidence as cumulative and redundant. To the extent the defendant wished to

know why M.K. stayed in the marriage after the DCS investigation, she stated it was

because she believed the defendant had not abused the victim at that time. She went on

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to clarify though that the circumstances surrounding the December abuse were very

different from the prior accusation. A reasonable jury could conclude that the facts

surrounding the December abuse were sufficiently different from the facts surrounding

the prior accusation to support the defendant’s conviction. Therefore, the defendant is

not entitled to relief.

C. Consecutive Sentencing

We next review the defendant’s allegation that the trial court erred in ordering his

sentence to be served consecutively with his prior sentence. This Court reviews within-

range sentences imposed by the trial court under an abuse of discretion standard with a

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The

party appealing a sentence bears the burden of establishing that the sentence was

improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Further, in order to

comply with the Sentencing Act, the trial court must state on the record the statutory

factors it considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-

210(e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons

for imposing a particular sentence, however, should not negate the presumption [of

reasonableness].” Bise, 380 S.W.3d at 705-06. Thus, a sentence imposed by a trial court

“should be upheld 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.” Id. at 709-10; State v. Pollard, 432 S.W.3d 851, 859-60

(Tenn. 2013) (applying the abuse of discretion standard with a presumption of

reasonableness to consecutive sentencing).

It is well settled that the trial court “may order sentences to run consecutively if it

finds by a preponderance of the evidence that one or more of the statutory criteria exists.”

State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Here, the trial court found

the statutory criteria existed in the record to warrant consecutive sentencing.

Specifically, “[t]he defendant [was] convicted of two (2) or more statutory offenses

involving sexual abuse of a minor.” Tenn. Code Ann. § 40-35-115(b)(5). The record

supports the trial court’s imposition of consecutive terms.

The trial court outlined its review of the record in accordance with State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995). First, the trial court looked at the relationship

between the defendant and his victims. The trial court stated it was “disturbing to the

[c]ourt that the [d]efendant would do this to a child . . . to which he was brought into

contact with as a result of the friendship [the victim] had . . . with another, and then that

likewise, the same act would . . . occur on his own child . . .” Second, the trial court

discussed the extent of the residual physical and mental damage to the victim stating it

was

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[P]articularly concerning to the court, the statements that [the victim] made

in testimony that she just wanted to know that her father loved her. [That

is] all she wanted. And I find that . . . is . . . residual physical and mental

damage to the victim in this case to have to deal with the fact that one’s

own parent would do this, and then to articulate that the issue that remains

is [the] question about whether the parent loves her.

Upon review, we conclude the trial court properly considered the factors in section 40-

35-115(b)(5) and did not abuse its discretion by imposing consecutive terms.

The defendant also argues that the State chose to pursue the case against the

victim’s friend first because the lack of a special relationship in the first case increased

the likelihood of consecutive sentencing in the instant case. The defendant argues this

tactic “puts too much power in the executive branch.” However, the defendant has failed

to cite any applicable law in support of his claim. We, therefore, deem this argument

waived. See Tenn. R. App. P. 27. Courts have routinely held that the failure to make

appropriate references to the record and to cite relevant authority in the argument section

of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v.

Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).

However, even if we were to take as true the assertion that the State chose to try

the cases in that order to ensure enhancement, we conclude that is a proper exercise of

prosecutorial discretion. Cf. State v. Culbreath, 30 S.W.3d 309, 313 (Tenn. 2000). A

District Attorney General is an elected constitutional officer whose function is to

prosecute criminal offenses in his or her circuit or district. Tenn. Const. art. VI, § 5;

Ramsey v. Town of Oliver Springs, 998 S.W.2d 207, 209 (Tenn. 1999). The District

Attorney General “[s]hall prosecute in the courts of the district all violations of the state

criminal statutes and perform all prosecutorial functions attendant thereto . . . .” Tenn.

Code Ann. § 8-7-103(1). The prosecutor’s discretion to seek a warrant, presentment,

information, or indictment is extremely broad and subject only to certain constitutional

restraints. Ramsey, 998 S.W.2d at 209. The State acted within its discretion; therefore,

the defendant is not entitled to relief.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgments of

the trial court.

____________________________________

J. ROSS DYER, JUDGE

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