State of Tennessee v. David Lynn Zeigler

02/07/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 28, 2018

STATE OF TENNESSEE v. DAVID LYNN ZEIGLER

Appeal from the Circuit Court for Maury County

No. 22891 Russell Parkes, Judge

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No. M2017-01091-CCA-R3-CD

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The Defendant-Appellant, David Lynn Zeigler, appeals from a Maury County jury

conviction of rape by “knowing or having reason to know [the victim] was mentally

defective, mentally incapacitated or physically helpless.” Tenn. Code Ann. § 39-13-

503(a)(3). In this appeal as of right, the Defendant presents the following issues for our

review: (1) whether the trial court erred in prohibiting trial counsel’s cross-examination

of an expert witness about his suspension from the practice of forensic psychology for

unprofessional conduct; (2) whether the trial court’s decision to limit cross-examination

of the expert witness effectively interfered with trial counsel’s right to present a defense;

and (3) whether the trial court imposed an excessive sentence. For the reasons that

follow, we reverse the Defendant’s conviction and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;

Remanded for New Trial

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, J., joined. TIMOTHY L. EASTER, J., filed a separate dissenting opinion.

Samuel Patterson (at trial), Columbia, Tennessee, and Larry D. Drolsum and Teresa D.

Smith (on appeal), Brentwood, Tennessee, for the Defendant-Appellant, David Lynn

Zeigler.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Brent A. Cooper, District Attorney General; and Kyle Dodd, Assistant

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

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OPINION

On October 10, 2012, the victim, an adult female, engaged in oral sex with the

Defendant in his car. When the victim’s mother discovered the incident some months

later, she reported it to the police. Although the victim professed her love for the

Defendant and maintained that she was not forced to engage in sex with him, the

Defendant was subsequently indicted for rape. There was no dispute that the Defendant

had sex with the adult victim at trial. The sole question before the jury was whether the

victim, who had been previously diagnosed with Williams Syndrome, met the definition

of “mentally defective” and was therefore competent to consent.1 Crucial to the

resolution of this question was expert testimony to aid the jury in understanding Williams

Syndrome, a rare genetic disorder which causes developmental and learning disabilities.

Under these circumstances, a classic battle of the experts ensued.

Prior to trial, defense counsel sent the State by facsimile documents with which

they intended to impeach the State’s expert witness, Dr. James Walker. In response, on

March 23, 2016, the State filed a motion in limine seeking to exclude the same.

Specifically, the State objected to referencing a consent order entered by a professional

board, which had suspended their expert’s license. The State argued, based on Rules 402

and 403, that the evidence did not make any material fact more or less likely, and that

even if relevant, the probative value was substantially outweighed by the danger of unfair

prejudice.

At the March 30, 2016 hearing on the motion in limine, Dr. Walker, a

neuropsychologist, testified that he was required to maintain a license by the Tennessee

Board of Psychology. He was asked by the State to perform an evaluation on the victim

in this case, which was completed on July 21, 2015. He conceded that he had signed a

consent order from the Department of Health in 2013. Dr. Walker testified regarding the

circumstances of the consent order, which stemmed from a prior substance abuse

problem. He received treatment in February 2013, and he had not abused drugs since

then. He said he was currently in recovery and did not use any “mind-altering

substances.” The consent order specifically cited Dr. Walker for engaging in

“unprofessional, dishonorable, or unethical conduct.” Dr. Walker testified that he was

never impaired while at work or while practicing. Dr. Walker further testified that as part

of the consent order, he was required to be on probation for five years or until 2018. The

Board of Psychology also retroactively suspended Dr. Walker’s license to the period

when he was in rehabilitation; however, it was reinstated immediately upon Dr. Walker’s

release.

1

“Mentally defective” means that a person suffers from a mental disease or defect which renders

that person temporarily or permanently incapable of appraising the nature of the person’s conduct. Tenn.

Code Ann. § 39-13-501(3).

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On cross-examination, during an exchange regarding Dr. Walker’s prior testimony

as an expert in other criminal trials, Dr. Walker testified that Judge Monte Watkins had

on two occasions permitted a jury to hear about his “disciplinary issues.” He specifically

testified that the State was permitted to cross-examine him about his prior discipline, the

probationary status of his license, and the fact that his license had been suspended for

substance abuse. Dr. Walker reiterated that he had testified as an expert in 34 cases since

December 2012. He acknowledged that in 20 of those cases the disciplinary issue was

not raised, which left 14 remaining cases. Asked if there was any other criminal case

during which the issue was raised but the parties prohibited from discussing, Dr. Walker

cited a federal case. He explained that the judge limited the questions, which were

outside the presence of the jury, to (1) whether he was intoxicated at the time of the

evaluation and (2) whether he was intoxicated at the time of his testimony. Dr. Walker

testified, however, that in the federal case he did not provide testimony before the jury.

At the close of proof, the trial court asked the parties to confine their argument to

two issues (1) whether the Court should allow a question as to whether Dr. Walker’s

license is presenting in probated status; and (2) whether the Court should allow for

specific inquiries as to the facts underlying the reason for the probation.

The State argued, at length, that the specific instances of conduct, i.e. the drug

abuse, the consent order, and the probationary status of Dr. Walker’s license, did not

reflect on the truthfulness of Dr. Walker’s testimony and was therefore barred by Rules

608 and 609 of the Rules of Evidence. The State maintained that the minimal probative

value of this evidence was outweighed by its unfair prejudicial effect. The State

conceded that whether Dr. Walker’s license was in probationary status was a separate

question. The State reasoned, while this evidence may be relevant under Rule 402, under

Rule 403, its probative value was outweighed by its unfair prejudicial effect “perhaps less

so than in the specific instances analysis.” The State buttressed its argument by noting

that the Board did not completely deprive Dr. Walker from practice, the “attenuation” of

time between the events underlying the consent order and his evaluation of the victim,

and that Dr. Walker was no longer using any “mind-altering substances.” For these

reasons, the State argued, on relevance grounds, that any reference to the current status of

Dr. Walker’s license should be excluded.

After an exhaustive exchange between defense counsel and the trial court

regarding Rule 608, the specific instances of conduct underlying the disciplinary action,

the trial court asked defense counsel to narrow his argument. The trial court inquired “if

I exclude the specific instances of conduct under 608 and I allow you to say, [‘]Is your

license or are you on probation right now.[’] How does that . . . not mislead of confuse

the jury or leave them left to speculate as to why?” Defense counsel responded by noting

that the State chose this witness as their expert. While it may confuse the jury to some

degree, it would be fundamentally unfair to allow the State to bolster their expert with his

credentials and simultaneously preclude the Defendant from asking about the status of his

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license. Defense counsel argued that in granting the State’s motion, the trial court would

allow the State to present a “false impression” of their expert, whose license had been

suspended and was in probationary status at the time of the evaluation in this case. In

closing, defense counsel pleaded with the court to allow him to “go in to at least [Dr.

Walker’s] suspension and reinstatement and his probation, license being on probation.

And to ask a further question about being suspended based on that specific code section.”

In granting the State’s motion, the trial court filed a detailed written order and

reasoned as follows:2

The Court must make at least three (3) separate analyses in order to make

its determination, which consist of: a) whether to allow counsel for

Defendant to inquire as to Dr. Walker’s current licensure status with the

Tennessee Board of Psychology and whether or not his license to practice

psychology is currently in probation status; b) whether to allow not only the

aforementioned evidence, but also to allow questions as to the specific

instances of Dr. Walker’s conduct that led to the entry of the Consent

Decree and the professional discipline described therein; or 3) [sic] whether

to exclude the testimony in its entirety.

With regard to evidence regarding the Consent Decree and all of the

matters described therein, the Court finds:

a) While there is no dispute that the behaviors described in

the Consent Decree and those testified to by Dr. Walker

occurred within the last ten (10) years, there is no evidence to

suggest that the behaviors in question are relevant to Dr.

Walker’s truthfulness or lack thereof, as required under Rule

608(b).

b) The probative value of said testimony does not

substantially outweigh its prejudicial effect. Therefore, in

accordance with Rule 608(b), testimony about the specific

instances of Dr. Walker’s conduct that led to the entry of the

Consent Decree should not be permitted.

c) Since Dr. Walker is a licensed professional, questions

regarding his professionalism are relevant under Rule 402,

and are thus not excluded based on a lack of relevance.

2

The trial court also provided oral findings of fact and conclusions of law at the close of the

hearing. As they are consistent with the trial court’s order, it is unnecessary to include in the facts of the

opinion.

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However, under Rule 403, even relevant evidence may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury.

d) Allowing counsel for the Defendant to ask Dr. Walker

whether his license to practice psychology is in a probation

status, or whether he was professionally disciplined for

“unprofessional, dishonorable or unethical conduct[,]” as

described in the Consent Decree as a direct quotation from

T.C.A. §66-63-11-215(b)(1) [sic], with no more explanation

or definitions provided to the jury, carries with it a

considerable danger of unfair prejudice, and of confusing or

misleading the jury.

e) As Dr. Walker testified that his issues that led to the entry

of the Consent Decree were not in existence either at the time

that Dr. Walker performed his evaluation of the alleged

victim herein or at the current time, and the Court accredits

that testimony, the probative value of the testimony cannot be

considered to be significant, and is substantially outweighed

by the danger of unfair prejudice.

The Court has already held herein that the specific instances of Dr.

Walker’s conduct may not be introduced or inquired into, under Tn. R. Ev.

608(b). Beyond that, the Court further holds that the status of Dr. Walker’s

licensure and the probation imposed upon his license to practice

psychology may not be introduced or inquired into, under Tn. R. Ev. 403.

Trial.3 Cherylyn MacPherson, a detective with the Columbia Police Department,

was assigned this case, read over the initial May 20, 2013 report taken by a patrol officer,

and contacted the victim’s mother, the reporting party, on June 3, 2013. A forensic

interview of the victim was completed on June 25, 2013, prior to Detective MacPherson’s

interview with the Defendant on July 19, 2013. The Defendant waived his Miranda

rights and told Detective MacPherson that he was the victim’s pastor and that he had

known her since she was thirteen years old. He said that her family came to his church,

and he became a mentor to the victim. He said he knew the victim had a “crush” on him.

He also explained how their relationship evolved “from a crush to when [the victim]

became 18-years old to a sexual relationship[.]” Asked if the Defendant knew whether

3

Although the issues presented do not require a full recitation of the proof at trial, we include

them for purposes of the harmless error analysis later discussed in this opinion and in the event of further

appellate review.

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the victim had any “limitations,” Detective MacPherson recalled the Defendant to reply

as follows:

[The Defendant] explained to me that during their initial meeting

when she was – when [the victim] was 13 and the mother, [victim’s

mother] had explained to him that [the victim] had something. He said he

couldn’t remember what it was until about [May 2013], he had heard it

again.

[The Defendant] said . . . . “I thought it was something physical, like

a physical limitation, because her mother had some physical issues.”

Detective MacPherson later met the victim and did not observe her to have any

physical limitations. The Defendant told Detective MacPherson that on October 10,

2012, the victim performed oral sex on him while in his car. The Defendant also told

Detective MacPherson that the victim was a “sweet girl” who was “into music” and

“slow.” Asked what he meant by “slow,” the Defendant said that she was “behind a

grade.” The Defendant was specifically asked whether he knew if the victim had any

mental limitations to which he replied, “No.” Detective MacPherson told the Defendant

that the victim had an IQ of 69 and was considered “mentally retarded.” Asked if that

surprised him, the Defendant initially replied no but later clarified, “Yes, it did surprise

him.”

Asked if he and the victim had discussed any future life plans, the Defendant told

Detective MacPherson that the victim “wanted to marry him and have babies with him.”

He said the victim “knew what she was doing and that she wanted a baby and was even

knitting a baby blanket . . . he never asked her to have a baby and she pursued him and . .

. that’s what she wanted.” As part of her investigation, Detective MacPherson also

interviewed Brian Hunt, a deacon at the church the victim and the Defendant had

attended. Detective MacPherson confirmed that the offense occurred in Maury County,

Tennessee.

On cross-examination, Detective MacPherson confirmed that her husband was the

patrol officer who took the initial report in this case. She further acknowledged that as

part of her investigation, she had to determine whether the victim was competent to

provide consent for sexual intercourse. Finally, she confirmed that the victim was an

adult at the time of the alleged offense by providing her birthday. She confirmed that the

Defendant told her he tried to “break off” his affair with the victim because it was “a sin

and wrong.” However, the victim continued to pursue him. The Defendant also told her

that the victim’s mother “had mentioned something in passing years ago [regarding the

victim’s mental limitations] but he didn’t know what was said or what it was.” She

further confirmed that the Defendant advised her that the victim’s mother also told him

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about the victim’s mental limitations after the alleged offense. Finally, she confirmed

that the Defendant did not have a prior criminal history.

Susan Pruitt, a licensed psychological examiner for over 15 years, administered

and interpreted psychological tests including intelligence quotient (IQ) tests and

Minnesota Multiphasic Personality Inventories (MMPI’s). She worked at Tennessee

Career Center during the day and Columbia Counseling at night. She testified and

described the Wechsler Adult Intelligence Scale, Fourth Edition (WAIS). She said it

provided an overall IQ and was broken down into four categories including verbal

comprehension, perception reasoning, working memory, and processing speed. She

explained that in order to determine if an individual met the State standards for an

intellectual disability4 she would also need to perform an adaptive behavior evaluation,

which measures whether an individual could perform basic needs such as living alone,

feeding themselves, counting money, or driving. She later confirmed that she did not

administer an adaptive behavior evaluation on the victim.

On June 3, 2013, Pruitt administered a psychoeducational exam and administered

“the Wex IV” on the victim, who was 19 years old. She explained that the victim was

referred to her from someone at her church and described as “a homeschooled child that

needed an updated evaluation and, you know, money was an issue and could I do it.” Per

her evaluation, the victim was in the “low average range” for verbal comprehension,

“scored a 75” or was “borderline” for perceptual reasoning, was in the “extremely low

category” for working memory, and in the “extremely low” range for processing speed.

Based on these scores, Pruitt considered the victim’s general cognitive ability or full-

scale IQ to be in the extremely low range. Her composite score was 69 and the

composite interval was 66 to 73. Pruitt did not believe that the victim’s full-scale IQ was

equivalent to her chronological age. A copy of her report was admitted into evidence.

On cross-examination, she confirmed that the victim’s mother sought out testing to

“set realistic career and employment goals” for the victim. Pruitt did not know that the

test was going to be used to determine if the victim was competent to provide consent for

sexual intercourse. She did not review any of the victim’s prior medical records. She

confirmed that IQ tests alone cannot determine whether an individual met the State

standard for intellectual disability, and that she needed to have performed the adaptive

behavior test for that determination. She further confirmed that her evaluation was

performed for psychoeducational purposes only.

Doctor Mary Cox, a licensed psychologist practicing in Columbia, Tennessee for

over 20 years, was tendered as an expert in the area of psychology. Dr. Cox first treated

4

To the extent possible, we have replaced the phrase “mentally retarded,” as used by many of the

witnesses in this case, with the preferred phrase “intellectually disabled.” See Tenn. Code Ann. § 33-1-

101(16)(C) (Supp. 2010); Coleman v. State, 341 S.W.3d 221, 226 n.5 (Tenn. 2011).

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the victim when she was “eight or nine” years old for purposes of resolving a child

custody or visitation matter. She explained that the victim’s mother and father were

divorced, and the victim’s biological father had allowed the victim to enter a public

restroom alone. Following this incident, the victim’s mother had the victim evaluated for

the purpose of determining if “she had the capacity to be able to be unsupervised in [a

public bathroom].” Dr. Cox determined that the victim was not capable of entering a

public bathroom alone. She explained that during her initial treatment of the victim, she

was made aware that she had been previously diagnosed with Williams Syndrome;

however, she was unfamiliar with the condition. In fact, she had never had a case of

Williams Syndrome and had a limited understanding of the condition.

After appearing in court in the visitation/child custody matter, Dr. Cox did not

treat the victim again “for years.” In May 2013, the victim and her mother “came in

together” to see Dr. Cox. Dr. Cox testified that the victim had been having a relationship

with an older man and “the mother was concerned about what had happened and what

she had been through and that kind of thing.” Dr. Cox treated the victim for the purpose

of the “after affects” of her relationship with the Defendant. Dr. Cox explained that she

treated the victim in the presence of her mother, which was at the victim’s request. Dr.

Cox observed that the victim’s mental age was that of an “8 or 9 year old child.” Dr. Cox

did not perform any intellectual testing on the victim.

Dr. Cox testified that the victim “can be very verbal, very mature talking, very

friendly, very social. She’s also very talented musically, as well as with art.” Asked if

one could have a short conversation with the victim without realizing that she had any

mental disability, Dr. Cox replied, “It’s possible, yah, just in a brief, yeah, meeting.” She

said the victim was “more naïve, trusting, accepting things at face value, not having any

ability to ascertain maybe underlying intent or anybody that would be being false with

her.” She stressed her belief that the victim would not be able to perform academically at

her chronological age.

In regard to the Defendant, the victim told Dr. Cox that she met him at church and,

as a child, had a crush on him. Dr. Cox did not consider the victim’s crush on the

Defendant to be “a-typical.” Dr. Cox discussed the “ramifications of her affections for a

man who was otherwise married” with the victim. Dr. Cox said the victim believed the

Defendant would “divorce his wife or else when his wife passed away, then they would

be able to be together.” Dr. Cox said the victim had “tunnel vision” about the situation

and believed that she and the Defendant were going to be together. She confirmed that

the victim made a baby blanket because she believed she and the Defendant were going

to have a baby together. Dr. Cox characterized the victim’s thoughts as “[j]ust kind of

fantasy.” Dr. Cox said that the victim had an anniversary date memorializing her

relationship with the Defendant, and previously had set up a table for an anniversary

dinner. Ultimately, Dr. Cox opined that the victim could not “appraise the nature of her

own conduct with regard to sexual behavior.” In her view, the victim was unable to

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provide consent for sexual activity. Dr. Cox’s conclusions were memorialized in a letter

which was admitted into evidence at trial.

On cross-examination, Dr. Cox was asked if she agreed that Williams Syndrome

was caused by missing genes on chromosome seven. In response, she said, “It’s an

abnormality of that. That’s not my specialty or field.” She believed she may have

reviewed the victim’s medical records from Vanderbilt when she first evaluated her for

the custody matter. However, Dr. Cox did not review any medical records for her

treatment of the victim pertaining to this case. Asked if she had relied on any other

testing in arriving at her conclusion, Dr. Cox said that she “knew that IQ testing had been

consistent with what [her] clinical opinion was.” Asked if the victim was more open

during counseling sessions without her mother, Dr. Cox replied,

I don’t think I can really say. That would be true not the crush part or the

love part, but anything that was beyond that she would have been a little

more open without her mother in the room.

Dr. Cox agreed that the victim’s verbal IQ was higher than her overall IQ. As

relevant to the victim’s ability to understand and consent to sex, the following exchange

occurred between defense counsel and Dr. Cox:

Q: [The victim] understands . . . what sex is, does she not?

A: Correct.

Q: She understands sex, what sexual intercourse or oral sex is, isn’t that

correct? She understands that?

A: I think –

Q: The act of it?

A: -- some of that learning though happened after this began.

Q: Okay. Do you know that for certain? Can you state with a degree of

medical certainty?

A: Well, she told me that she got on the internet and looked stuff up that

had been talked about to her.

....

Q: She knew that she was having an affair with [the Defendant]?

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A: No. It was not an affair in her mind.

Q: Okay.

A: It was a love relationship forever and ever.

Q: She loves [the Defendant]?

A: Yes.

Dr. Cox confirmed that the victim told her (1) that the Defendant did not force her

to engage in oral sex; (2) that she agreed to sex with the Defendant; and (3) that she

provided consent to sex. Although Dr. Cox acknowledged the YAI Verbal Inform

Consent Tool and Social Sexual Awareness Scale, both tests a psychologist can give to

an individual to determine their understanding and ability to consent to sex, she was

unfamiliar with them and did not use them to evaluate the victim.

Brian Hunt testified that from 2001 to 2009, he had been a member of the same

church the victim and the Defendant attended. He confirmed that the Defendant was a

pastor at the church and, over time, Hunt had become an ordained elder and vice

chairman of the board of directors. The victim and her mother were in Hunt’s shepherd

group. As far as the victim’s physical ability, Hunt said that she was a thin girl and “a

little bit more naïve to say the least.” He was not aware of any specific mental disability

of the victim, but he knew there was some “incapacitation” there.

Asked if Hunt had a discussion with the Defendant about the victim, Hunt said the

Defendant had specifically asked to discuss the victim’s affection toward the Defendant

with him. The Defendant had told Hunt that he had received a letter from the victim, and

Hunt and the Defendant discussed the letter. Hunt advised the Defendant to “create a

little bit of separation” between he and the victim. Hunt said the Defendant received the

advice “well,” was confident he could handle the situation, and intended to speak with

another church elder. Hunt testified that there was no discussion about the victim’s

mental disability or limitation during his meeting with the Defendant. Hunt said the

Defendant never indicated an awareness that the victim might be “different” than the

other children at the church. Hunt said this conversation occurred before the victim

became an adult. Asked if he would advise the Defendant to create space between he and

the victim had the victim been 10 years older, Hunt explained that he would because he

would give that advice to any married man in that situation.

The victim’s mother testified that she and her daughter lived together in Columbia,

Tennessee. The victim’s mother said she had five children, all of whom no longer lived

at home, except the victim. The victim’s mother did not work outside the home. She

explained that when the victim was born, she was “not breathing and they had to call

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Code Blue on her, but she started breathing and she was okay.” The victim’s mother

became familiar with Williams Syndrome after she had taken the victim to be evaluated

by a geneticist when she was eight or nine years old. She explained Williams Syndrome

as follows:

Well, it has to do with Chromosome 7 and it has to do with deletions that

are on Chromosome 7. So, they initially tested her and they thought that

perhaps she would have this full deletion, but it came back that the full

deletion she didn’t have. So then they tested her again and then it came

back where there was [sic] some deletions, or this variation on

Chromosome 7.

The victim’s mother homeschooled all her children, and she said the victim’s

development was “quite different.” She said she tried to follow the traditional home

school curriculum, but the victim was unable to follow it. She said the victim could not

retain things. However, the victim excelled in music, art, memory, and was “really,

really nice.” She explained that the victim could memorize virtually every episode of

Gilligan’s Island and the Walton’s. She said the victim’s verbal ability, while strong, was

a symptom of Williams Syndrome. She said the victim was limited in math or anything

to do with arithmetic. She said the victim does not have many friends her own age

because they immediately know something is different about her. She said the victim

likes being around adults because “they think she’s sweet and nice.”

The victim’s mother confirmed that the victim had had two jobs outside the home.

She worked on a dairy farm milking cows and cleaning stalls when she was in her late

teens. The victim was paid by personal check; however, the dairy farm job ended

because the victim’s school work began to suffer when her employer needed her more

than once a week. The victim’s second job was as a greeter at the Farmer’s Restaurant.

She seated patrons, cleaned silverware, and provided drinks to customers. She held this

job for a few months, and it ended because the victim was unable to work on Sundays.

She said the victim had a savings account, but not a checking account. The victim’s

mother opened the savings account when she was young; however, the victim went to the

bank with her mother and withdrew money from the account.

The victim’s mother testified that the victim did not have a driver’s license;

however, the victim obtained her driver’s permit when she was 18. She said the victim

took the written portion of the driver’s exam three times before she passed. She said after

the victim received her permit, she was able to drive but not alone. She said the victim

had not pursued her full license, and, at the time of trial, had not driven in more than two

years.

According to the victim’s mother, excluding the Defendant, the victim had never

had a boyfriend. She met the Defendant through church, which they attended regularly

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on Wednesday and Sunday. The victim’s mother said that initially she was not aware of

any special attention the victim gave to the Defendant. However, she said that “it started

being noticeable and she would talk about him. And so she had a little crush on him.

Everybody at the church knew that. His wife knew, he knew, that she kind of liked him.

I had conversations with [the Defendant] regarding [the victim], and so, yeah, she had a

crush on him.” The victim’s mother admitted that she was not bothered by the crush,

initially.

The victim’s mother testified that she told the Defendant about the victim’s mental

limitation three times: (1) during marital counseling following her second divorce, (2) at

church during a conversation about how the victim was musically talented, and (3) when

the Defendant and the victim were going to work on a fence and she told him if they

stopped at a restaurant to use the bathroom, he had to walk the victim to the door and

stand by the door until she came out. The victim’s mother said she told him the victim

was “special” and that he knew what she meant.

The victim’s mother confirmed that the Defendant gave the victim a necklace for

her 16th birthday, a box of chocolate after a trip to Pennsylvania, and some shirts he had

picked out on another occasion. Around May 2013, the victim’s mother became troubled

with her daughter’s relationship with the Defendant when the Defendant called her when

his wife was out of town and asked if the victim could come to his home and help him

prepare some things for church. When the victim’s mother offered for all of them to

come, the Defendant declined and said he only needed the victim to help. The victim’s

mother confronted the victim, who then told her mother that she no longer respected her

because she did not allow her to go help the Defendant. The victim’s mother became

concerned, and shortly thereafter, called the Defendant and inquired about his

relationship with her daughter. The Defendant initially denied anything inappropriate;

however, he later admitted to having kissed the victim and holding hands with her.

After the victim’s mother determined that that there had been inappropriate sexual

contact between the victim and the Defendant, she consulted with Dr. Cox. She said she

and her daughter attended counseling sessions with Dr. Cox two to three times a week.

She also took the victim to be evaluated by Drs. Pruitt, Walker, and Brown. She

confirmed that the victim celebrated a date as her anniversary with the Defendant and that

she has celebrated that date as their anniversary every year since the discovery of their

relationship by her mother.

On cross-examination, the victim’s mother confirmed that the victim had

previously obtained a driver’s permit and that she was registered to vote. She generally

acknowledged and confirmed the extent of her observations of the victim’s behavior as

testified to on direct examination. She further said that she did not believe she needed a

conservatorship because she was the victim’s mother.

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The victim, age 22 at the time of trial, testified that she lived in Columbia,

Tennessee with her mother. She confirmed that she had four siblings and that she had

previously worked outside the home as a restaurant hostess and with a landscaping

company. She described her hobbies as attending church, playing music, and writing

songs. She further confirmed that she did Elvis impersonations and had a jump suit to do

so. Although she did not know how to read music, she was a self-taught musician and

could play the piano, guitar, mandolin banjo, and drums. When she wrote music, she

wrote “love songs” which dealt mostly with the Defendant. She met the Defendant in

2008, when she was 14, while he was the pastor at her church. She initially viewed the

Defendant as “weird” but eventually saw him “differently.” She began to do activities

outside of church, such as lawn work, with the Defendant in 2010, when she was 16. In

2008, she told the Defendant that she had a “crush on him.” She said he told her “he was

flattered and that I’d probably be married in about five years. And he said that him and I

would just take it day by day. . . . [And] I didn’t know what that meant because he didn’t

clarify.”

In 2010, the victim gave the Defendant a compact disc of eight songs she had

written as an expression of her romantic feelings toward him. At some point, the

Defendant acknowledged that he had listened to the songs and told the victim that he

loved his wife. The victim said, “And that was just kind of the end of that. Other than . .

. but as far as really discouraging me then, no.” She said her feelings toward the

Defendant did not change. She confirmed that the Defendant had given her gifts: a

silver, stainless steel necklace with a cross pendant for her 16th birthday and three

turtleneck shirts for her 18th birthday. She said she was surprised to receive the gifts, and

that by her 18th birthday the Defendant had not expressed any feelings toward her. She

confirmed that she danced with the Defendant at a church party celebrating her 18th

birthday.

After the victim turned 18, she “was kind of knowing that [the Defendant] was

feeling something” for her. She said he began to flirt with her and recalled an occasion

when she helped the Defendant take his briefcase upstairs. She said the Defendant turned

to give her a “big hug and lifted me up off the ground and said, [‘]I just want you to know

that I thank you for being you and I love you.[’]” Asked if she understood the difference

between a romantic and non-romantic situation, the victim replied, “Yes, sir.” She then

described the way the Defendant said I love you as non-romantic. She said her feelings

for the Defendant “continued to grow.”

After the Defendant’s contract at the church in Columbia was not renewed, he

began a church in his home, which the victim attended. The victim testified that she and

the Defendant romantically kissed on October 5, 2012, which made her feel special. She

said by that time she and the Defendant were “together” or “dating, in a relationship, not

an affair.” She acknowledged that the Defendant was still married but insisted that they

were in a relationship “[b]ecause he said we were. We had already talked about getting

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married and being together.” She said they discussed “future plans” together including

having a male baby because the Defendant had three girls and discussed places they

wanted to visit. In court, the victim had with her a knitted baby blanket and drawings of

her and the Defendant in a foreign country. She never told her mother about these

conversations for fear her mother would “bash” the Defendant.

The victim said the Defendant told her that “for him and I to be able to get

married, [his wife] would have to be passed away.” The victim thought it might be

possible to be with the Defendant while his wife was alive. The victim recalled another

occasion when the Defendant was at her house and she was sitting on his lap. She

recalled her head was “buried in [the Defendant’s neck]” and she asked if they could be

together. “And [the Defendant] said, I don’t know. He said, I can’t answer that right

now. He said, You know, I made a promise to [Wife] a long time ago. He said, I have to

keep that.” Asked why she considered them to be in a “dating relationship” rather than

an “affair,” the victim said “I wasn’t using him and I didn’t think that he was using me at

the time, and we were going to get married. He told me that we would eventually.”

The victim testified that on October 10, 2012, the Defendant picked her up from

her home to go and paint the home of another elder church member. The Defendant’s

oldest daughter was with them and helped them paint. When they finished painting, the

Defendant dropped his daughter home, and then he and the victim parked on a road off of

Bear Creek Pike, near his home. She said that they talked about “usual stuff” and that

she told him “she loved him.” She said he told her he loved her and that they kissed. She

said, “ . . . I was going to touch him down there and, you know, he unbuttoned him [sic]

pants and everything and I was just touching him and everything and then I . . .” She said

she was, “Just touching him and then I put it in my mouth and - - - I remember he said,

Yeah, there you go. But – and then I just did that for a little bit and then nothing.” She

confirmed that “down there” meant penis, and that the Defendant pulled down his pants

and underwear. Asked if the Defendant asked her to put “it” in her mouth, she replied,

“No, but at first he ask me if I would kiss his penis for him.” She said his penis was not

erect and that it was in her mouth for “[p]robably a minute.” She continued to spend time

with the Defendant after this incident.

She said her mother discovered the incident on May 14, 2013. She confirmed that

she was upset with her mother for not allowing her to go over to the Defendant’s home to

help clean. She said her mother repeatedly asked if the Defendant had touched her

inappropriately, and she relented and said, “Why don’t you ask [the Defendant?]” After

her mother left, the victim called the Defendant to give him a “heads up” that her mother

was going to call him.

The victim confirmed that she had been interviewed by Drs. Cox and Brown. She

said that Dr. Brown had erroneously described her necklace as gold in her report. She

confirmed that she was also evaluated by Dr. Walker, who administered certain tests that

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Dr. Brown did not. She said she spent more time with Dr. Walker. She confirmed that

she had never had a driver’s license; but that she did have a driver’s permit. She was

excited to obtain her driver’s permit, but she never drove alone. At the time of trial, the

victim no longer had her permit. She explained that the time to renew it had lapsed.

At the close of her direct testimony, the victim said,

It shouldn’t have played out this way. I trusted in [the Defendant].

He told me even after all of this came out he wouldn’t leave me. He did.

He told me that he would stick up for me. Obviously, he hasn’t still at this

point.

....

We were supposed to be together and [the Defendant] should have

been a strong enough man to stand up and say [Wife], this is what

happened and tell his daughters what happened. And he should’ve decided

what he needed to do. He needed to act in a different manner. And he has

been very cowardly and hiding behind people and lying and I’m very

disappointed in him.

On cross-examination, the victim generally confirmed her direct testimony. She

further stated that she had remained at home and took care of herself for three days while

her mother was out of town. However, she spent the night during that time at her sister’s

house. She described how she cooked mashed potatoes, steak, and spaghetti. She said

she cooks for herself every day, even when her mother is in town. Asked if she

remembered saying that she did not want to be there for an interview but that her mother

wanted her to be there, the victim replied,

Because at that time things were still very fresh and I thought [the

Defendant] was gonna be doing some things differently. And already

people thought, you know, that he had used me and lied to me. And I said

that because I didn’t want people to get him mixed up with something that

he wasn’t.

Dr. James Walker testified as an expert in the fields of clinical neuropsychology

and forensic psychology. He explained the difference between psychology and forensic

psychology. He said psychology involved the study of human behavior while forensic

psychology related to the legal system. He further explained that neuropsychology is the

part of psychology that deals with brain functioning and brain disease, such as

“developmental disorders like mental retardation or learning disorders.” He, along with

Dr. Karen Milliner, another psychologist, evaluated the victim. In doing so, he reviewed

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reports provided to him by the prosecutor including Dr. Pruitt’s report and a letter from

Dr. Cox. He also interviewed the victim and her mother.

Dr. Walker explained that Williams Syndrome is a disease of the human brain, the

human body actually. He explained that it is caused “by a child who has a particular set

of genes on a chromosome missing, Chromosome Number 7.” In his evaluation of the

victim, he observed her to have several characteristics that were consistent with Williams

Syndrome including a thin, elfin appearance, a heart problem, being gifted musically, and

being obsessively focused on certain areas. He said that during the interview, the victim

was “extremely pleasant,” had good eye contact, and her thinking was “somewhat

concrete.”

Dr. Walker’s report reflected that the victim was “pseudo-sophisticat[ed],” which

meant that she “used big words she didn’t understand.” The example Dr. Walker used to

illustrate his description was when he asked the victim for her social security number and

she declined to give it to him. When he asked her why, the victim told him that a person

should not give out their social security number. When he inquired as to the reason why,

the victim could not provide an answer.

Dr. Walker performed several tests on the victim including the Mini Mental State

Examination (MMSE), the Repeatable Battery For the Assessment of

Neuropsychological Status (RBANS), Trail Making Test (TMT), the Booklet Category

Test (BCT), the Lowenstein Functional Financial Assessment Scale (LFFAS), the

Personality Assessment Inventory (PAI), the Gudjonsson Suggestibility Scale of Two

(GSSII), the Gudjonsson Compliance Scale (GCS Form D), the YAI Verbal Informed

Consent Tool (YAI), and the Social Sexual Awareness Scale (SSAS), the Vineland

Adaptive Behavior Scale II (Vineland II) (given to the victim’s mother).

Dr. Walker testified that the MMSE provided a “quick snapshot of what a person

is and is not capable of from a mental point of view.” The victim scored a 28 out of a

possible 30 on this test, which required the victim to perform such tasks as serial

subtraction, spelling words backwards, naming common objects, and writing out a

grammatically correct sentence. On the RBANS, which samples the thinking and

reasoning behavior of a person by asking them to learn new information, the victim

scored 74 out of 100. According to Dr. Walker, “[t]he 70 level is the cutoff of a person

who is really demented[,] who has very, very serious cognitive problems.” The victim’s

score placed her approximately in the “4th percentile.” The TMT, a test which measures

“brain dysfunction” by exposing an individual to a “set of numbers, numbered dots on a

page,” the victim was “well within impaired limits” at “below low average.” The victim

also took the BCT, which determined her capacity for “higher order reasoning.” The

victim was shown puzzles and asked to make guesses on how the puzzle could be solved.

This information is used to solve further puzzles. The victim “made 90 errors out of the

208 items on the test,” a “very, very poor score.” Dr. Walker also reviewed the victim’s

- 16 -

performance on the LFFAS, a test to determine whether the victim was “competent to

manage [her] own financial affairs,” and her results were “terrible.” While she was able

to name money from sight, she could not add money, count out change, balance a

checkbook, or write a check. Her results fell far below the first percentile, indicating

“significant brain dysfunction” in this area. On the PAI, a comprehensive personality

test, the victim answered the questions “in an open and honest kind of way.” On the

GSSII, a test that measures “how easily misled a person is” by using their own answers to

suggest poor performance on the test to see if they choose to change their answers, the

victim scored “well beyond the 99th percentile” in terms of suggestibility. The victim

took the GCS as well, which measures how well a person gets along with others. On this

test, the victim presented as “resistant to be overly compliant.”

Dr. Walker also administered the YAI Verbal Informed Consent Toll (YAI) and

the Social Sexual Awareness Scale – two tests “designed to measure the same thing.”

The tests measure whether the person has a “basic understanding of sexual matters.” The

victim scored “pretty well” on both tests, being able to describe sexual activity and other

components of sex. Dr. Walker testified that she made some “mistakes” on the tests

because the victim believed one could get a sexually transmitted disease (STD) by

swimming in a pool or standing too close to someone with an STD. He further explained

that the victim did not understand the mechanics “about the use of the pill, or IUD

devices,” and she had never seen a condom.

The Vineland II was administered to the victim’s mother, in order to understand

what occurs during the day-to-day life of the person being assessed. Based on this test

and other assessments, Dr. Walker opined that the victim fell between the “two-year-old

level and the eight-year-old level in terms of her ability to do things on a day-to-day

basis.”

Based on all the above tests combined, Dr. Walker concluded that the victim had

Williams Syndrome and that she had “difficulty reasoning and thinking things through.”

He said the victim was “mildly mentally retarded” with “very serious” cognitive

limitations. He said the victim’s relationship with the Defendant was “a pathological

one.” He opined but for her disease, “none of this would have ever happened.”

Asked his opinion whether the victim had the ability to appraise the nature of her

conduct, Dr. Walker replied

In my opinion, her ability to make decisions about sex is very, very

impaired. [The] victim doesn’t understand the context in which sexual

behaviors are supposed to occur. She doesn’t understand that there are

risks and benefits associated with sex. She doesn’t understand that it’s a

process that has to be engaged in, in terms of making a decision about

whether to have sex with someone. [The victim’s] reasoning is very

- 17 -

simple. I’m in love with him. I’ve always been in love with him. We

should be together forever and so I want to have sex with him.

Dr. Walker reviewed Dr. Brown’s report. He testified that she did “many of the

things that [he] did in the course of [his] evaluation.” He testified that he performed

additional testing and would not have been able to render an informed opinion based

solely on the YAI test. He reiterated his opinion that the victim could not appreciate the

nature of her sexual activity with the Defendant because “she doesn’t have the ability to

think and reason through things at a high enough level to come to what . . . most of us

would consider a good decision.”

On cross-examination, Dr. Walker agreed that whether the victim made a “good

decision” was not the legal standard. He further acknowledged that he was not present

during the majority of the tests given to the victim. He was present for and administered

the MMSE, PVT, the Lowenstein, and the YAI and the Social Sexual Awareness Scale.

He calculated the scores for the WAYI, The SSAT, the test for malingering, and the

MMSE. He did not review the victim’s prior medical records to determine whether she

had in fact been diagnosed with Williams Syndrome. According to his report, the victim

did not receive social security benefits for her disability. He agreed that the victim’s

verbal IQ was much higher than other parts of her IQ. Asked to give his opinion on

whether the YAI Verbal Informed Consent Tool should be the sole test to determine

whether a person was capable of consenting to sex, Dr. Walker said

[T]he better practice would be the comprehensive kind of evaluation that I

did. The YAI’s tool simply asks whether or not the person knows basic

information about sexual activity. But you don’t really gain any

information from the test about [sic] the person makes decisions in general.

You don’t get any understanding of their emotional condition or situation.

You don’t get any information about how they process information or think

at a high level about things.”

He characterized the YAI as part of a puzzle, but not the only part. Dr. Walker’s report,

memorializing his conclusion, was admitted into evidence.

Doctor Kimberly Brown, a licensed forensic psychologist, testified on behalf of

the Defendant. She held a Tennessee license in psychology with health services provider

designation and was tendered as an expert in the area of forensic psychology. She

explained that a forensic psychologist is someone who specializes in the union of the law

and psychology. In formulating her report for this case, Dr. Brown reviewed outside

information including the police reports, the indictment, and investigative reports. She

also reviewed the videotape of the victim’s forensic interview and the videotape

interview of the Defendant. She reviewed emails and text messages the victim sent to the

- 18 -

Defendant, the letter from Dr. Cox, the psychological report from Dr. Pruitt, and the

report from Dr. Walker.

Dr. Brown testified that she reviewed the victim’s verbal IQ from Dr. Pruitt’s

report. She said that the fact that the victim’s high verbal IQ was higher than her other

test scores showed two things (1) that the overall score should not be combined because it

is misleading; and (2) that her verbal abilities are “low average, but not significantly

impaired, but they’re definitely a strength for her.” She reviewed the victim’s video

interview, and opined:

[The victim] presented similar to the way she did today. She’s

poised. She’s reflective. She understands the questions asked of her.

She’s responding appropriately. I thought her responses showed good

detail.

She also corrected the interviewer at times and was very concerned

that the interviewer would get misleading impressions of whom [the

Defendant] was. So she said things like, You know, I don’t want you to

judge him as a person. I don’t know how you can judge him as a person. I

don’t know how you can determine what his intentions are just from this

interview with me.

....

So there was a level of kind of a sophistication and her reasoning

about this that I saw in her interview with Kids Place. During the interview

as well she talked about how they were involved in a relationship. How he

never forced her to do anything. That everything that she did she did of her

own accord.

During their interview, the victim told Dr. Brown that “she did not want to be

there, but her mother wanted her to be there.” Dr. Brown evaluated the victim for the

purpose of determining if she was capable of giving consent to sexual activity with the

Defendant. Her discussion with the victim’s mother was limited to the logistics of

determining the next appointment. She acknowledged that the victim correctly testified

that her report erroneously reflected that the necklace the Defendant gave her was gold

instead of silver. She discussed the circumstances of the offense with the victim and

noted that her account was consistent with her trial testimony. She also took a social

history of the victim and explained that the victim had three friends who were her age and

others who were adult age. The victim discussed her love of music, singing, drawing,

writing, and Elvis Presley impersonations. She also stressed the importance of religion in

her life and the churches she attended.

- 19 -

Although Dr. Walker testified that the victim was unable to write complete

sentences during his evaluation of her, Dr. Brown reviewed emails and texts from the

victim and determined that she could, in fact, write a complete sentence. She said the

victim was not on any form of government assistance, such as disability, and did not

receive financial assistance outside of her family.

Dr. Brown explained that the test used to evaluate the victim was “a very unique

type of assessment because it’s a very specific question, someone’s competency to

consent to sex or the capacity to understand sexual conduct.” She said this issue

commonly arises, for example, in homes for individuals who have “mental retardation,”

and nursing homes for people with dementia. She utilized the YAI, a tool used by the

National Institute for People with Disabilities to evaluate the victim, in addition to other

measures, to determine whether an individual with mental disabilities/limitations is

competent to consent to sex. She testified that “sexual activity is a fundamental instinct

that people have. And that even people with mental retardation are capable of sexual

activity, if they understand what is going on.”

Dr. Brown disagreed with Dr. Walker’s assessment of the YAI as a mechanistic

test. She explained that it “actually goes into understanding a more subtle appreciation of

sexual activity.” Dr. Brown then provided the following examples of the questions on the

YAI and the answers provided by the victim:

If you wanted to have sex with someone what would you do? And, [the

victim] said, Well, can you give me more details? She said, Well, I

certainly wouldn’t be forceful. I would give hints about it or say

something. And then the next question was, Well if the person said, no,

what would you do? And she said, Say that I wanted to make love to them

or something. Then I said, Well, what if the person said, no? I repeated

that. She said, Well, I guess no means no.

The next question is, If someone wants to have sex with you and you

don’t, what [would you do]? And she said, Walk away. I said, What if you

were in a relationship with that person? She said, Have a big discussion

about things. I’m one of those people I wouldn’t have done those things

with [the Defendant] if I wasn’t sure I was gonna get married to him.

One of the questions asks about, How do a man and woman have a

baby? So she responded, The penis goes in the vagina and all that stuff

happens, and the sperm finds an egg and you don’t become pregnant or you

do. If you do the baby starts forming in the mother’s womb.

....

- 20 -

. . . Another question is, When a man and a woman want to have sex

but not make a baby what can they do? She said, They could wear

condoms, there’s a patch, I think it’s called, and birth control pills. So she

demonstrated some understanding that you can prevent pregnancy.

Another question is, Do you know of any diseases you can get from

having sex with another person? She said, STDs, another one is HIV.

And then there’s kind of reasoning questions, here’s one. You’re in

a room watching television with another person who starts to play with his

or her private parts, do you think that’s okay? Why or why not? So she

said, No. I don’t think people should be doing that in public. I asked her

why. She said, That’s something very personal and you shouldn’t be

sharing with a bunch of people in the room or even one person in the room.

Dr. Brown explained that the test is designed to determine an individual’s ability

to make a choice and the individual’s ability to not be coerced or forced. She said the test

was to ensure that the individual’s decision was voluntary. In her view, most of the tests

administered by Dr. Walker were “not relevant” or germane to the narrow issue of

whether the victim had the ability to consent. She analogized the process to evaluating an

individual’s ability to ride a bike. “[She] could probably give them a lot of tests. Like I

could test their hand-eye coordination. I could test their balance. I could test the strength

of their legs, for example. But probably the easiest, the most direct way for me to know

whether they could ride a bike is to have them get on a bike and see if they could ride it.”

The tests applied by Dr. Walker, in her view, were “loose associations with the ability to

give consent[.]” Dr. Brown disagreed with Dr. Walker’s conclusion that the victim was

not competent to provide consent. She opined that the victim was competent to consent,

reasoning

[the victim] understands what sex is, she understands what can happen

when you have sex with someone . . . . She understands what type of

sexual activity is legal versus illegal. She understands that you can object

to sex, not be forced to have sex even if you’re in a married relationship.

So she just has to understand that nature of or the basic understanding of

what sexual activity is and be able to make a choice about that. She was

very clear that this was her choice. She was never forced into it. In fact, in

one of her writings she refers to herself as often having the upper hand in

the relationship . . . .

Dr. Brown evaluated the victim in the context of the definition of consent in this

case, whether the victim suffered from a mental disease or defect which rendered the

victim temporarily or permanently incapable of appraising the nature of her conduct. In

- 21 -

doing so, Dr. Brown stated that the question was not whether this was a good decision or

healthy relationship for the victim but rather whether the victim was legally competent to

consent to sex. Dr. Brown further testified that the victim’s verbal abilities, which were

most related to her ability to consent to sex, were low but not extremely impaired to

render someone incapable of consent. In regard to whether the victim was “mildly

mentally retarded,” as noted by Dr. Walker, Dr. Brown disagreed but acknowledged that

this issue was debatable. Significantly, Dr. Brown opined that “[I]n the end, it doesn’t

really matter whether she is mentally retarded or not because mentally retarded people

can give consent to sex. The issue was can she give consent.” In her expert opinion, Dr.

Brown concluded that the victim was competent to consent to sex with the Defendant.

Her report memorializing her conclusion was marked for identification and later admitted

into evidence on re-direct after it was redacted.

On cross-examination, Dr. Brown was asked a series of questions pertaining to the

questions asked by the interviewer during the forensic interview of the victim. She

agreed that an individual could consent to sex and not know that they were being used.

She also agreed that she evaluated the victim in February 2015, and the alleged offense

occurred in 2012. Asked whether the victim’s knowledge of sex could have increased in

the three-year period, Dr. Brown said, “[i]t may have, but that’s why [she] placed the

importance on the [forensic interview in June 2013].” She further agreed that she did not

administer any of the tests administered by Dr. Walker, other than the YAI. Dr. Brown

then reaffirmed the questions provided by the test and answers given by the victim. She

reiterated that she “[a]bsolutely . . . felt really confident” that the victim was able to

appraise the nature of her own conduct at the time of the alleged offense. She said she

did not find this case to be a close call at all.

She said that at the time of her evaluation of the victim she was familiar with

Williams Syndrome and had done research on the condition. She said it was a very rare

genetic disorder, and she had to learn about it. She agreed that consistent with Williams

Syndrome the victim had neurocognitive abnormalities “especially the spacitial [sic]” or

her ability with numbers and math. Asked if she believed the victim was emotionally

immature, Dr. Brown opined

I think she is naïve and has been sheltered – she has limited understanding,

I think, certainly of romantic relationships especially. She never dated or

had a boyfriend before this. So I don’t know if it’s a combination of being

sheltered and not having had those experiences, or if it’s more having

Williams Syndrome, or whether it’s both that’s cause those impairments

and understanding social interactions. There were some limitations there.

At the conclusion of the trial, the jury found the Defendant guilty of rape. The

trial court sentenced the Defendant to ten years and six months’ incarceration. The

- 22 -

Defendant filed a motion for new trial. After a hearing, the trial court denied the motion.

This timely appeal followed.

ANALYSIS

I. Limited Cross-Examination. The Defendant contends that “the trial court

erred in prohibiting trial counsel’s cross-examination of Dr. James Walker about his

suspension from the practice of forensic psychology.” In response, the State recasts the

Defendant’s issue on appeal as whether “the trial court committed per se error by

prohibiting him from asking Dr. Walker whether he was competent to render an opinion

and whether he was ‘using or suffering from the abuse of cocaine’ when he evaluated the

victim and testified at trial.” The State then insists that the Defendant has waived this

issue for failure to raise it before the trial court. While we agree that late in the argument

section of the Defendant’s brief, the Defendant conflates the two issues of the

Defendant’s right to cross-examine Dr. Walker with whether Dr. Walker was competent

to render an expert opinion, the record shows that the Defendant (1) sought only to

impeach the expert witness on cross-examination; and (2) this issue was fully explored at

the State’s motion in limine for purposes of cross-examination. Finally, the trial court

specifically ruled upon the extent to which the Defendant would be permitted to engage

in cross-examination of Dr. Walker regarding the status of his license in its order granting

the State’s motion. Accordingly, the issue is properly preserved for our review.

Here, the Defendant argues that he should have been permitted to cross-examine

the State’s expert witness and ask whether Dr. Walker’s license had been suspended

previously and on probationary status when he evaluated the victim in this case. On this

question, the trial court properly found that the evidence concerning the suspension of the

State’s expert witness’s license was relevant to rebut the expert’s credibility as a witness.

The trial court nevertheless excluded this testimony upon finding the probative value was

outweighed by its prejudicial effect. Tenn. R. Evid. 402, 403. The theory here, as argued

by the State, was twofold: (1) that allowing the jury to hear only about the expert’s

suspended license, without offering reasons why, would allow rampant speculation and

place undue emphasis on a collateral matter; and/or (2) that permitting the jury to hear the

reasons for the suspension, in this case drug abuse, would expose the jury to matters

unrelated to the truthfulness of the witness in violation of Rule 608 of the Tennessee

Rules of Evidence. For the reasons that follow, we agree with the Defendant, and

conclude that the trial court improperly excluded the probationary status of the State’s

expert witness.

The Confrontation Clause provides a criminal defendant the rights to confront and

cross-examine witnesses. See U.S. Const. amends. VI, XIV; Tenn. Const. art. I, § 9;

State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). A component part of this

constitutional protection is the right to establish bias or to otherwise impeach the

credibility of a witness. State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006); State v.

- 23 -

Sayles, 49 S.W.3d 275, 279 (Tenn. 2001); State v. Howell, 868 S.W.2d 238, 252 (Tenn.

1993). The propriety, scope, manner, and control of cross-examination of witnesses,

however, remain within the discretion of the trial court. State v. Reid, 213 S.W.3d 792,

839 (Tenn. 2006); Rice, 184 S.W.3d at 670. When the defendant’s right to cross-

examine witnesses is unreasonably restricted, the trial court abuses its discretion. Reid,

213 S.W.3d at 839; Rice, 184 S.W.3d at 670; Davis v. State, 212 S.W.2d 374, 375 (Tenn.

1948).

The admissibility of evidence rests within the trial court’s sound discretion, and

this court will not overturn a trial court’s decision regarding the admissibility of the

evidence absent an abuse of that discretion. State v. Clayton, 535 S.W.3d 829, 859

(Tenn. 2017). A trial court is found to have abused its discretion when it “applies an

incorrect legal standard or reaches a conclusion that is ‘illogical or unreasonable and

causes an injustice to the party complaining.’” State v. Lewis, 235 S.W.3d 136, 141

(Tenn. 2007) (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

Evidence is considered 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. Evidence which is

not determined to be relevant is inadmissible. Tenn. R. Evid. 402. In addition,

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

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

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice has been defined by the

Tennessee Supreme Court as “‘[a]n undue tendency to suggest decision on an improper

basis, commonly, though not necessarily an emotional one.’” State v. Banks, 564 S.W.2d

947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Committee Notes).

“Prejudice 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. Young,

196 S.W.3d 85, 106 (Tenn. 2006) (citations and internal quotation marks omitted).

Whether evidence is relevant is a decision left to the discretion of the trial court, and this

court will not overturn a trial court’s determination regarding relevancy without a

showing that the trial court abused its discretion. State v. Brown, 373 S.W.3d 565, 573

(Tenn. Crim. App. 2011) (citing State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App.

1995)).

The Tennessee Supreme Court has also held that the exclusion of evidence can

violate a defendant’s due process rights when it prevents a defendant from presenting a

defense:

Exclusions of evidence may violate the Due Process Clause of the

Fourteenth Amendment of the United States Constitution even if the

exclusions comply with rules of evidence. Principles of due process require

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that a defendant in a criminal trial have the right to present a defense and to

offer testimony. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973); State v. Brown, 29 S.W.3d 427, 431 (Tenn.

2000). In Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed 2d

1019 (1967) the United State Supreme Court stated:

The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain terms the

right to present a defense, the right to present the defendant’s

version of the facts as well as the prosecution’s to the jury so

it may decide where the truth lies. Just as an accused has the

right to confront the prosecution’s witnesses for the purpose

of challenging their testimony, he has the right to present his

own witnesses to establish a defense. This right is a

fundamental element of due process of law. 388 U.S. at 19,

87 S. Ct. 1920.

State v. Flood, 219 S.W.3d 307, 315-16 (Tenn. 2007). The court further stated that the

following factors should be considered when determining whether the exclusion of

evidence results in a due process violation: “(1)[w]hether the excluded evidence is

critical to the defense; (2) [w]hether the evidence bears sufficient indicia of reliability;

and (3) [w]hether the interest supporting exclusion of the evidence is substantially

important.” Flood, 219 S.W.3d at 316 (citing Brown, 29 S.W.3d at 434-35; Rice, 184

S.W.3d at 673; State v. Rogers, 188 S.W.3d 593, 614 (Tenn. 2006)).

In light of the above authority, we conclude that limiting either party’s ability to

cross-examine the expert in this case was error. See Sneed v. Stovall, 22 S.W.3d 277,

280-82 (Tenn. Ct. App. 1999) (evidence bearing on an expert’s professional expertise,

such as the person’s education, training, licensing, and experience, is admissible); Joe M.

Gilbert v. State, No. M2012-01440-CCA-R3-PC, 2013 WL 152264, at *6 (Tenn. Crim.

App. Jan. 15, 2013) (evidence of police officer’s alleged unprofessional conduct could

serve to impeach the officers credibility), perm. app. denied (Tenn. June 12, 2013); see

also Marc D. Ginsberg, Good Medicine/Bad Medicine and the Law of Evidence: Is There

A Role for Proof of Character, Propensity, or Prior Bad Conduct in Medical Negligence

Litigation?, 63 S.C. L. Rev. 367, 398 n.265 (2011) (collection of cases reversing and

remanding for new trial based on trial court’s error in refusing to permit defendant’s

cross-examination of status of expert witness’s professional license).

The State’s position supporting exclusion of the question is unpersuasive for the

following reasons. Rule 403 of the Tennessee Rules of Evidence is narrow in its

application and is a rule of admissibility that places a heavy burden on the party seeking

to exclude evidence. See State v. James, 81 S.W.3d 751, 757 (Tenn. 2002) (citing Roy v.

Diamond, 16 S.W.3d 783, 791 (Tenn. Ct. App. 1999)). “[E]xcluding relevant evidence

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under [this rule] is an extraordinary remedy that should be used sparingly, . . . and

persons seeking to exclude otherwise admissible and relevant evidence have a significant

burden of persuasion.” White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App.

1999) (“[A] trial court should not exclude evidence under Tenn. R. Evid. 403 when the

balance between the probative worth of the evidence and the countervailing factors is

fairly debatable.”) (citations omitted); State v. Saylor, 117 S.W.3d 239, 249 (Tenn. 2003),

holding modified by State v. Turner, 305 S.W.3d 508 (Tenn. 2010). More to the point,

Tennessee courts have previously held that cross-examination of an expert concerning

whether the expert’s license had been previously suspended, as argued by the Defendant,

is admissible and proper. Sneed, 22 S.W.3d at 280-82; see also Wischmeyer v. Schanz,

536 N.W.2d 760, 764-66 (Mich. 1995); Kostel v. Schwartz, 756 N.W.2d 363, 370 (S.D.

2008) (“inquiry into an expert’s alleged mistakes or connection to unrelated adverse

claims do not impact on his credibility or character for truthfulness [under Rule 608].

However, . . . evidence contrary to the representation of the witness’s expertise in the

field for which he offers his opinion at bar is relevant to his competency, does impact

credibility and therefore, is appropriate inquiry.”).

It is within the sole province of the jury to evaluate witness credibility. By

granting the State’s pretrial motion in limine to exclude testimony concerning the status

of the expert’s professional license, the trial court circumvented this function. White, 21

S.W.3d at 227 (noting that trial courts must be careful not to usurp the function of the

jury when undergoing Rule 402 & 403 analysis). Had the limited question been

permitted, the jury would have been able to weigh the State’s expert witness’s

credentials, wholly and truthfully, in relation to the opposing expert offered by the

Defendant during trial. The Tennessee Board of Psychology, the appropriate regulating

authority, saw fit to suspend this doctor’s license and place him on probation. His license

was in probationary status at the time of his evaluation of the victim and at the time of

trial. Excluding deficiencies in the expert’s qualifications, as the trial court did here,

effectively shielded the expert from the purpose of cross-examination, which is to test the

reliability of an expert’s opinion.

Disclosure to the jury that the State’s expert witness’s license had been previously

suspended and was in fact in probationary status at the time he evaluated the victim was

indeed prejudicial to the State’s case. However, prejudice becomes unfair only 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) (citing M. Graham, Handbook of Federal Evidence 182-83 (2d ed.1986)); see also

Wischmeyer, 536 N.W.2d at 766 (noting that evidence does not present a danger of

unfair prejudice unless it threatens the fundamental goals of [TRE 401 and 403]:

accuracy and fairness) (citing Gold, Federal Rule of Evidence 403: Observations on the

nature of unfairly prejudicial evidence, 58 Wash. L. Rev. 497 (1983)). The primary

purpose of informing the jury that the State’s expert witness’s license had been

suspended at the time he performed the evaluation bears on the expert’s credibility and is

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not contrary to the underlying goals of Rules 401 and 403. Under these circumstances,

we conclude that the State failed to carry its burden in establishing exclusion of the

expert’s license suspension.

Moreover, in granting the State’s motion in limine, we are compelled to note that

the trial court failed to engage in the appropriate weighing analysis under Rule 403. The

trial court determined that “to allow cross-examination of [the expert] with the simple

question of, [‘]Is your license presently probated or subject to probation and or did you

enter into a consent order relative to unprofessional conduct et cetera,[’] would be

confusing as to the issues . . . [and] the danger of unfair prejudice is significant.” The

court reasoned further that because the expert was no longer engaged in the misconduct

which led to the suspension that it would be misleading to the jury to inquire as to the

current status of his license. However, Rule 403 required the trial court to weigh the

probative value of the license suspension, not the precipitating acts of misconduct,

against the countervailing factors identified in Rule 403. In failing to do so, the trial

court erred.

Finally, the State’s position is somewhat disingenuous because while this case was

pending, Earnest Costosteno Woodley v. State, No. M2018-00217-CCA-R3-CD, was

appealed to this court.5 Interestingly, in that case, the defendant offered the expert

testimony of the same witness offered by the State in Ziegler, the case at bar. In two

separate trials, the State in Woodley argued for and received permission to cross-examine

this expert witness, at length, regarding the suspension of his license as well as the

specific instances of conduct which led to it. The defendant appealed, arguing that the

trial court erred in allowing the State to cross-examine the expert witness regarding the

suspension of his license. In their brief to this court, the State candidly acknowledged the

inconsistent position taken in both cases; however, they maintained no abuse of

discretion by either trial court. Although the State attempted to distinguish Zeigler in

Woodley, we fail to see any meaningful difference. We cannot in good conscious

condone a position or rule that changes based solely on how or when it benefits a party.

Simply put, resolution of this issue cannot depend on whose ox gets gored. Accordingly,

we agree with the position taken by the State in Woodley and conclude that a limited

inquiry into the status of an expert witness’s professional license is admissible to impeach

the credibility of the witness.

We must now determine the effect, if any, of the trial court’s error in prohibiting

the Defendant from cross-examining the State’s expert witness regarding the suspension

of his license and probationary status.

5

We presume this case to be one of the two cases Dr. Walker referenced at the motion in limine

hearing.

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II. Interference with Right to Present a Defense. The Defendant next argues

that the trial court’s decision to limit cross-examination of the expert witness effectively

interfered with his right to present a defense. Here, the Defendant argues that the trial

court’s error undermined his ability to present a defense, lessened the State’s burden of

proof, and violated his right to a fair trial under the Sixth Amendment’s confrontation

clause. The right to effective cross-examination is subject to harmless error review.

Delaware v. Van Arsdall, 475 U.S. 673, 680-81 (1986); Howell, 868 S.W.2d at 252-53;

Momon v. State, 18 S.W.3d 152, 167 (Tenn. 1999). A number of factors are relevant in

determining whether the improper denial of a defendant’s opportunity to impeach a

witness is harmless including the “importance of the witness’ testimony in the

prosecution’s case, the cumulative nature of the testimony, the presence or abuse of

evidence corroborating or contradicting the witness on material points, the extent of

cross-examination otherwise permitted, and the overall strength of the prosecution’s

case.” Howell, 868 S.W.2d at 253 (quoting Van Arsdall, 475 U.S. at 684-85).

Although there was other lay testimony concerning the victim’s behavior

generally, the proof as to her inability to consent was far from overwhelming. The victim

was competent to testify and explained, at length, her relationship with the Defendant and

that she was not forced to engage in fellatio with him. A fellow church member testified

that he did not observe the victim to have any obvious mental deficiencies. While

another expert in psychology opined that the victim could not consent, her opinion was

based solely on clinical interviews with the victim. The expert witness in question was

tendered as an expert in both neuropsychology and forensic psychology. He subjected

the victim to a battery of tests. Even though the victim passed the two tests that were

specifically designed to determine whether individuals with intellectual disabilities can

consent to sexual intercourse, the State’s expert witness concluded that the victim was not

competent to consent. The Defendant’s expert witness utilized the same two tests that

were specifically designed to determine consent as the State’s expert witness and reached

the same conclusion (i.e. that the victim was capable of consent). Because the proof from

both experts was largely the same as to the victim’s ability to consent, we are unable to

conclude that the trial court’s error in precluding the Defendant from cross-examining the

State’s key witness did not impact the verdict in this case. Accordingly, we are

constrained to reverse the judgment of the trial court and remand for new trial.

We review the Defendant’s final issue, whether the sentence imposed by the trial

court was excessive, in the event of further appellate review.

III. Excessive Sentence. Finally, the Defendant argues that his sentence is

excessive because the trial court “did not give due weight to certain mitigating factors

and thus, failed to follow the appropriate sentencing guidelines outlined in T.C.A. 40-35-

101 . . . .” Additionally, the Defendant complains that the length of his sentence, at ten

and one-half years, prohibits him from being eligible for an alternative sentence. The

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State counters arguing that the trial court properly sentenced the Defendant. We agree

with the State.

When a defendant challenges the length or manner of service of a within-range

sentence, this Court reviews the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This

presumption applies to “within-range sentencing decisions that reflect a proper

application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at

707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)

(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard

does not permit an appellate court to substitute its judgment for that of the trial court.

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the

burden of proving that the sentence is improper. Tenn. Code Ann. § 40-35-101,

Sentencing Comm’n Cmts.

In reaching its decision, the trial court must consider the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence

report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)

the nature and characteristics of the criminal conduct involved; (5) evidence and

information offered by the parties on enhancement and mitigating factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement by the appellant in his own

behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-

35-102, -103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence

imposed “should be no greater than that deserved for the offense committed” and also

“should be the least severe measure necessary to achieve the purposes for which the

sentence is imposed.” Tenn. Code Ann. §§ 40-35-103(2), (4).

This Court will uphold the sentence “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the

purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of

various enhancement and mitigating factors is within the sound discretion of the trial

court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The misapplication of an

enhancement or mitigating factor by the trial court “does not invalidate the sentence

imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”

Bise, 380 S.W.3d at 706.

At the lengthy sentencing hearing, the victim testified to “other sexual incidents”

that occurred between her and the Defendant. According to the victim, she kissed the

Defendant, performed oral sex on the Defendant at least twice, and held hands with the

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Defendant. In addition, the Defendant performed oral sex on her once and touched her

private parts over her shorts.

The victim read from a lengthy statement in which she described her inability to

sleep, eat, or drink as a result of her separation from the Defendant. The victim

expressed her displeasure with the Defendant’s refusal to tell the truth about their

relationship to his wife and adult daughters, claiming that “he wanted to marry [her].”

The victim utilized multiple metaphors to describe her relationship with the Defendant,

claiming that she and the Defendant “connected like a branch connects to a tree . . .

emotionally, mentally and on so many other levels;” comparing herself to a calf being

weaned from its mother; and likening their relationship to a golf match. She explained

that they “cared deeply about each other.” The victim concluded that she knew the

Defendant “still love[d] [her],” and even asked the trial court for visitation with the

Defendant if he was incarcerated.

The victim’s mother testified that the Defendant was like a “grandfather” to the

victim. She testified that she had cautioned the Defendant that the victim had a crush on

him and that he needed to tell her that it was not “going anywhere.” The victim’s mother

“trusted” the Defendant because he was their “friend” and “pastor.” She testified that the

Defendant’s actions changed their family forever. Joy Hopper, a friend of the victim’s

mother and the victim, confirmed that the Defendant’s actions had an overwhelmingly

deleterious effect on the victim and her family.

Dennis Deblock testified on behalf of the Defendant. Deblock knew the

Defendant because they had “officiat[ed] various sports for the State of Tennessee.”

Deblock “enjoyed working with” the Defendant and “[a]lways knew that he was a good

person.” DeBlock explained that the Defendant was a supervisor with TSSAA

(Tennessee Secondary School Athletic Association) and was “well-respected” within that

community. Deblock was “very upset” when he heard about the allegations against the

Defendant but “asked [the Defendant] if he could be [at the sentencing hearing]” to

testify on his behalf. Deblock acknowledged that rape was a serious crime but did not

think that a prison sentence was appropriate for the Defendant.

Billy Lemastus met the Defendant around 1993 when the Defendant became

caretaker of Camp Christian in Dickson. Lemastus also acted as a sports official with the

Defendant at various types of sporting events including basketball. He described the

Defendant as a hard-working man and a Christian.

Dr. Kenney Oosting met the Defendant in approximately 1992 at Camp Christian

and eventually attended Central Christian Church in Columbia where the Defendant acted

as pastor. Dr. Oosting was on the board of the church when the Defendant was fired

from Central Christian Church. Dr. Oosting explained that the Defendant was not fired

based on the incident at issue at trial but rather because there was a group of people on

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the board that did not like the Defendant. Dr. Oosting continued to attend the Way

Church that the Defendant formed after leaving Central Christian Church. He was

“shocked” when the Defendant informed him about his relationship with the victim. Dr.

Oosting “thought [the relationship with the victim] was so out of character” for the

Defendant.

The State sought the application of multiple enhancement factors. After reviewing

the proof and the sentencing act, the trial court declined to apply enhancement factor (4),

the victim was particularly vulnerable because of age or physical or mental disability,

because it was a factor that the jury could have considered at trial. Tenn. Code Ann. §

40-35-114(4). The court applied enhancement factor (7), the offense involved a victim

and was committed to gratify the Defendant’s desire for pleasure or excitement. Tenn.

Code Ann. § 40-35-114(7). The trial court noted the Defendant’s effort to “orchestrate[]

the absence of other individuals, including his daughter” when taking the victim to an

isolated area. The trial court put “fairly significant weight” on this factor. The trial court

also applied enhancement factor (14), that the Defendant abused a position of public or

private trust or used a professional license in a manner that significantly facilitated the

commission or the fulfillment of the offense. Tenn. Code Ann. § 40-35-114(14). The

Defendant’s position as pastor and his awareness of the victim’s condition and her

feelings toward the Defendant contributed to the trial court’s application of this factor.

Despite the Defendant’s insistence that multiple mitigating factors applied, the trial court

only utilized mitigating factor (1), finding that the criminal conduct neither caused nor

threatened serious bodily injury, despite noting the “magnificent” effect of the

Defendant’s actions on the victim and her family. Tenn. Code Ann. § 40-35-113(1).

As a Range I, standard offender sentenced to a class B felony, the Defendant was

facing a sentence of eight to twelve years. Tenn. Code Ann. §§ 39-13-503(b); 40-35-

112(a)(2). After making lengthy findings, the trial court started with the minimum

sentence of eight years and enhanced the sentence one year on the basis of enhancement

factor (7) and two years on the basis of enhancement factor (14), bringing the sentence to

eleven years. The trial court then reduced the sentence by one-half a year on the basis of

the lone mitigating factor. As a result of the application of enhancing and mitigating

factors, the trial court sentenced the Defendant to a sentence of ten years and six months.

The trial court denied placement on Community Corrections and noted that the

Defendant, sentenced to a sentence longer than ten years, was not eligible for probation.

See Tenn. Code Ann. § 40-35-303(a).

Because the Defendant was sentenced to a within-range sentence, the trial court’s

decision is entitled to a presumption of correctness. Bise, 380 S.W.3d at 709-10. The

record before this court shows that the trial court thoroughly and completely applied the

statutory sentencing principles. The evidence in the record supports the trial court’s

application of the enhancement and mitigating factors. Accordingly, the trial court did

not abuse its discretion in sentencing the Defendant.

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CONCLUSION

Based on the foregoing reasoning and analysis, we reverse the Defendant’s

conviction of rape and remand this matter for a new trial.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

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