State of Tennessee v. Rodney Darnell Robinson

04/21/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 11, 2019 Session

STATE OF TENNESSEE v. RODNEY DARNELL ROBINSON

Appeal from the Criminal Court for Davidson County

No. 2015-B-1239 Cheryl A. Blackburn, Judge

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No. M2019-00303-CCA-R3-CD

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Rodney Darnell Robinson (“Defendant”) was convicted in Davidson County Criminal

Court of two counts of child abuse, five counts of aggravated sexual battery, four counts

of rape of a child, two counts of sexual battery by an authority figure, two counts of rape,

and one count of attempted rape of a child, for which he received an effective sentence of

sixty years’ incarceration. On appeal, Defendant contends that: (1) the evidence was

insufficient to support his convictions; (2) he was denied the effective assistance of

counsel; (3) the trial court erred by allowing trial counsel to proceed while “clearly ill”;

(4) the trial court failed to remedy statements made during voir dire by a potential juror,

thereby depriving Defendant of a fair trial; (5) the trial court erred in allowing cumulative

testimony in the cross-examination of Defendant; (6) the trial court erred in allowing

improper leading questions to a witness; (7) the trial court erred in the admission of

certain evidence; (8) the trial court erred in the exclusion of certain evidence; (9) there

was an appearance of bias from the trial judge that violated Defendant’s due process

rights; and (10) cumulative error requires a new trial. Following a thorough review, we

affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Benjamin K. Raybin (on appeal) and Brent Horst (at trial), Nashville, Tennessee, for the

appellant, Rodney Darnell Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant

Attorney General; Glenn Funk, District Attorney General; and Megan King and Doug

Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

In September 2012, the Davidson County Grand Jury indicted Defendant, along

with his wife, Demetria Leshe Robinson (“Co-Defendant Robinson”), for twenty-five

different offenses relating to allegations of child abuse and sexual abuse made by two

fourteen-year-old girls living in their home. In May 2015, the grand jury issued a

superseding indictment, charging Defendant and Co-Defendant Robinson with the

following offenses:

Indicted Renumbered Charged Offense Classification Victim

Count Count

1 N/A Aggravated Child Abuse Class B felony K.B.

2 N/A Aggravated Child Abuse Class B felony K.B.

3 1 Aggravated Sexual Class B felony K.B.

Battery

4 2 Aggravated Sexual Class B felony K.B.

Battery

5 3 Aggravated Sexual Class B felony K.B.

Battery

6 4 Rape of a Child Class A felony K.B.

7 5 Rape of a Child Class A felony K.B.

8 6 Rape of a Child Class A felony K.B.

9 7 Sexual Battery by an Class C felony K.B.

Authority Figure

10 8 Sexual Battery by an Class C felony K.B.

Authority Figure

11 9 Sexual Battery by an Class C felony K.B.

Authority Figure

12 10 Rape Class B felony K.B.

13 11 Rape Class B felony K.B.

14 12 Rape Class B felony K.B.

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15 13 Aggravated Sexual Class B felony B.B.

Battery

16 14 Aggravated Sexual Class B felony B.B.

Battery

17 15 Aggravated Sexual Class B felony B.B.

Battery

18 16 Rape of a Child Class A felony B.B.

19 17 Rape of a Child Class A felony B.B.

20 18 Rape of a Child Class A felony B.B.

21 19 Sexual Battery by an Class C felony B.B.

Authority Figure

22 20 Sexual Battery by an Class C felony B.B.

Authority Figure

23 21 Sexual Battery by an Class C felony B.B.

Authority Figure

24 22 Rape Class B felony B.B.

25 23 Rape Class B felony B.B.

26 24 Rape Class B felony B.B.

The trial court subsequently severed the defendants’ cases for trial and granted

Defendant’s request to sever Counts 1 and 2 from the remaining counts of the indictment.

Following a trial on Counts 1 and 2 in June 2015, Defendant was convicted of the lesser-

included offense of child abuse in both counts. As set out above, the remaining counts of

the indictment were renumbered for the purposes of Defendant’s second trial in February

2017, which is the subject of this appeal.

Second Trial

Voir Dire

During voir dire, one potential juror, Mr. Sparks, stated that he had previously

served on the grand jury in Dickson County. When asked if he could set aside his

experience with the grand jury and apply a presumption of innocence to Defendant, Mr.

Sparks said, “[I]n all honesty, in the grand jury we didn’t indict anybody unless they had

them cold. . . . So in all honesty I’m sitting here thinking, well, [Defendant] wouldn’t be

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here if they didn’t have him cold already.” He further stated, “I remember at that grand

jury . . . any question about them at all, about possible innocence, they were dismissed.”

The trial court excused Mr. Sparks based on his responses. Defendant’s trial counsel

requested that the trial court explain to the potential jurors that “the grand jury does not

hear all of the evidence.” The trial court then instructed:

Just so it will benefit the others, a grand jury does not hear all of the

evidence and oftentimes they don’t even hear from the alleged victim.

They just hear some summary of the things. But I just want to make sure

everybody else can provide [Defendant] with the presumption of innocence.

Can you do that? Because . . . he only has to be here, and that’s it. The

State has to prove him guilty. He doesn’t have to do anything. [Trial

counsel] doesn’t have to do anything. He doesn’t even have to ask any

questions. I suspect he will, but he doesn’t have to. All the burden is on

the State. Can everybody accept that principle of law?

(Jurors move heads up and down.)

Opening Statement

During Defendant’s opening statement, trial counsel asserted:

The evidence will show these allegations were likely initiated and

started by the biological mother to these two children who otherwise could

have never gotten custody of these two children but because of these

allegations eventually did.

....

So things went along pretty smoothly from there for about six years,

from 2006 to 2012, with . . . the biological mother, only having periodic

and sporadic contact with her children. She would call now and again, and

there’s even probably a long period of time where she had no contact with

them. But she had minimal to no contact with the children for those several

years.

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Trial counsel explained that, on March 14, 2012, Defendant punished K.B.1 with a

“good whooping” that was “in all honesty hard and harsh.” He stated that the whipping

left bruises that were noticed the following day at school and reported to the Department

of Children’s Services (“DCS”). Trial counsel continued:

It’s very important to note that on that day, . . . [K.B.] never once

mentioned anything about sexual abuse. Now, the State’s theory or attempt

to explain this is that, well, she didn’t know any better because she . . .

thought what the [defendants] were doing was normal or allegedly doing

was normal. But I would submit to you that what really happened was --

there’s evidence to show -- that the very next day, March 16th, before

[K.B.] ever alleged sexual abuse to anyone, [the victims’ mother] swoops

in. I think DCS calls her and says, look, we’re not going to let the children

go home with the [defendants] tonight, can they stay with you or something

like that. For some reason, the children or [K.B.] ends up seeing or

speaking with [the victims’ mother] the next day. And [the victims’

mother] says that she saw a tampon in [K.B.’s] purse, so she thought that

was odd. So immediately she jumps to the conclusion, well, maybe

[Defendant] is sexually abusing my child because she’s too young to be

using tampons. So she starts quizzing [K.B.] have you been sexually

abused by [Defendant].

Now, what I won’t be able to answer for you from the evidence is,

you know, was that [the victims’ mother] coaching an allegation because

she saw an opportunity or is that [K.B.] using an opportunity to explain a

tampon because she didn’t want to explain to her mother why she had a

tampon in her purse if she wasn’t sexually active. But what I can tell you is

that there was no allegation of sexual abuse until [the victims’ mother] . . .

who as I said had no chance otherwise of getting custody of these children,

is in the picture bringing up the subject. So guess what. The very next day

or close to it -- I may be a little bit off on my timing here -- during an

official interview by authorities, yes, now [K.B.] says, oh, by the way, yes,

I was also sexually abused.

Trial counsel explained that K.B.’s sister, B.B., did not disclose any sexual abuse

in her initial interview. However, when DCS interviewed B.B. in June 2012, she stated

that she was sexually abused too. Trial counsel stated:

1

It is the policy of this court to refer to minor victims of sexual abuse by their initials only. We

intend no disrespect.

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What happened between March and June to change [B.B.’s] mind?

[The victims’ mother] had a conversation with [B.B.] The . . . proof will

show, that in April [the victims’ mother] . . . who had no chance of getting

custody of these children otherwise, went to DCS and says, well, I’ve been

speaking with [B.B.] and she was sexually abused, too. So what do these

allegations have in common? They both start with [the victims’ mother].

Neither [K.B.] nor [B.B.] ever alleged sexual abuse to anyone until they . . .

spoke with [their mother.]

Trial counsel asserted that there were other motives for K.B. and B.B. to make up

the allegations of sexual abuse. He said that the defendants were “very strict” but that the

victims’ mother “let them do pretty much whatever they wanted.” Trial counsel also

stated that K.B. and B.B. “always wanted to go back and live with their mother.” He

asserted, moreover, that K.B. was angry about the whipping she received from Defendant

and that she made the allegations to “get even” with Defendant and Co-Defendant

Robinson. Trial counsel noted that there was no physical evidence to support the claims

of sexual abuse, no confessions, and no witnesses who “ever saw inappropriate behavior”

by the defendants. Trial counsel continued, “The evidence is simply the allegation of two

individuals . . . and I believe you’ll see much of their statements will be inconsistent, and

the whole story is simply not credible.”

State’s Proof

K.B. testified that she was born in June 1997 and that she was nineteen years old

at the time of trial. She explained that she had a twin sister, B.B., and that they lived with

their biological mother and three siblings until she and B.B. were six years old. K.B.

explained that because their mother was “about to lose her house,” she and her siblings

went to stay with Defendant and Co-Defendant Robinson. K.B. said that she continued

to see her mother while living with the defendants until K.B. was in sixth grade. She

recalled that her mother had visitation on Thursdays but said that, in sixth grade, her

mother “stopped coming over[.]”

K.B. testified that she lived with Defendant and Co-Defendant Robinson for eight

years. During those eight years, they lived in two different houses—one on Woodview

Circle and the other on Ewingdale Drive. K.B. stated that she lived in the home on

Woodview Circle until she was about ten years old. She explained that she eventually

began referring to Defendant as “Daddy” and Co-Defendant Robinson as “Mama.”

K.B. said that Defendant began touching her when she was ten years old, when her

breasts were developing. She recalled that she was in Defendant’s bedroom in the home

on Woodview Circle when Defendant first touched her breasts. She explained, “I was

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starting to grow my breasts, and [Defendant] called me in the room to have a talk about

me growing into a lady and teaching me about my breasts, like touching them and stuff.”

She said that she did not wear a bra at that time; she took off her shirt, and Defendant

touched her breasts and talked to her about them. K.B. testified the next time that she

could recall Defendant touching her breasts occurred when they were living in the house

on Ewingdale Drive, and she was about twelve years old. K.B. recalled that she knocked

on the door to Defendant’s bedroom and entered the room. She told Defendant that she

“couldn’t feel [her] nipple[.]” Defendant told her to take off her bra, and Defendant

began touching her breasts. He then “put his mouth on [her] nipple to see if [she] could

feel it.”

The following exchange then occurred:

[THE STATE]: After that, do you remember another time that

[D]efendant touched you?

[K.B.]: Yes. Are you asking about my breasts or . . .

[THE STATE]: Yes, ma’am.

[K.B.]: Yes. I mean, he’s touched me over ten times basically doing

the same thing.

When asked for additional specific times that Defendant touched her breasts, K.B.

stated that it was difficult to recall specific times because Defendant consistently touched

her breasts from the ages of ten to fourteen. She said that, between the ages of ten and

fourteen, Defendant touched her breasts “at least twice a week.” She said that she felt

scared and uncomfortable when Defendant touched her breasts.

K.B. recalled the first time that Defendant touched her vagina, stating, “One time I

got out the shower too fast, and he said I got out the shower too fast and to come in there

so he could check me. So I laid [sic] on the bed and spread my legs wide open, and he

checked me.” She said that Defendant told her to lie on the bed and open her legs “wide

open.” She stated that Defendant “use[d] his two fingers and spread the lips [of her

vagina] open.” She recalled that she was eleven years old the first time this happened.

Defendant said that she “wasn’t clean” and made K.B. get back into the shower. She

stated that Defendant gave her a “whooping” with a belt when she got out of the shower.

K.B. recalled another time that Defendant touched her vagina. She stated that she

was twelve years old, and the incident occurred in Defendant’s bedroom. K.B. explained,

“We [were] having a conversation about sex, and he asked me did I know where my

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cherry was. And I told him no.” K.B. said that she took off her pajama pants and

underwear and lay down on Defendant’s bed. K.B. continued:

He asked would I like for him to show me. Well, anyways I said

yes because I didn’t know what it was. So I laid [sic] on the bed and --

well, I took my pants off, I laid on the bed, and he stuck his finger up that

part[.]

....

He was like, do you feel that. And I said, yeah. He said, that’s

your cherry. I said, okay. And that’s how I started wearing tampons.

K.B. testified that Defendant touched her other times after she “g[ot] out of the

shower too quick.” She said:

I’d get out the shower, he’d call my name. I went in his room and it

was like, you got out the shower too quick, let me check you. So I’d lay on

the bed -- well, I would take my pants off first, lay on the bed, and open my

legs up wide. And he would take his fingers and open the lips (indicating).

He would move that around to make sure there’s no dirt in the creases

(indicating), pull this up to make sure [there was] no dirt around the clitoris.

She said that it felt like Defendant was “kind of massaging [her] clitoris” and that he

began touching her clitoris when she was about twelve years old.

K.B. estimated that, between the ages of eleven and twelve, Defendant touched her

vagina once a week and that, between the ages of thirteen and fourteen, it would happen

twice a week. She said that Co-Defendant Robinson was not present during the times

Defendant touched her vagina. She said that it made her feel uncomfortable and that she

would “shake real bad.” K.B. recalled one time when Defendant was lying in bed

without any clothes on. She said that Defendant called her into his bedroom and told her

to lie on top of him. K.B. stated that she could tell Defendant was “getting aroused[.]”

K.B. further recalled that Defendant tried to teach her how to kiss one time. She

stated that they were in the garage sitting on a couch when Defendant kissed her on the

lips and “tried to put his tongue in [her] mouth[.]” She stated that, during the eight years

that she lived with the defendants, the only person she talked to about Defendant’s sexual

abuse was B.B. She explained that she did not think that what Defendant was doing to

her was wrong at the time. K.B. stated, “I mean, he was my daddy, so I didn’t think it

was wrong. I guess I thought he knew what he was doing because he had a whole

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collection of doctor books in the closet on the bookshelf.” K.B. testified that she did not

consistently see her mother during the eight years she lived with the defendants. She said

that she would “sneak and talk to her [mother]” but testified that she never told her

mother about Defendant’s sexual abuse.

K.B. recalled that, on March 14, 2012, she and her siblings were removed from

Defendant’s home. She said that she had called a neighbor, Mary Moore, and had asked

if she could attend a Bible study with Ms. Moore. Ms. Moore had told K.B. to ask Co-

Defendant Robinson; however, K.B. had forgotten to do so. Later that day, when Ms.

Moore arrived at Defendant’s home, Ms. Moore and Co-Defendant Robinson went

outside. When Co-Defendant Robinson came back into the house, she began pulling

K.B.’s hair and “beating on [her].” Co-Defendant Robinson instructed K.B. to go

upstairs to Defendant. K.B. testified that Defendant told her to take off all her clothes

and lie on the bed. He then “whooped” her with a leather belt. Defendant hit her on her

bottom, the back of her thighs, back, and arms. She estimated that Defendant hit her ten

times. She said that he also hit her with his fist in the face, causing her nose to bleed.

K.B. testified that, after the beating, she cleaned up her face and went downstairs. Co-

Defendant Robinson told B.B. to “throw [K.B.] some clothes downstairs.” Co-Defendant

Robinson then took K.B. and B.B. to juvenile detention. She recalled that they “sat in the

front of juvenile, and [Co-Defendant Robinson] was just yelling and stuff.” K.B. said

that they did not get out of the car and that they eventually returned home.

While at school the following day, K.B.’s friend noticed bruises on K.B.’s arm and

asked her “what was going on.” K.B. and her friend ran out of the classroom and were

followed by a teacher. When the teacher threatened to write-up K.B. and her friend, K.B.

told the teacher what happened the previous night. K.B.’s teacher then reported the abuse

to DCS. Thereafter, a DCS employee, Jennifer Leeman, came to the school to speak to

K.B. K.B. testified that she did not return to Defendant’s home. Instead, she and her

siblings stayed with Janice Dillard, Co-Defendant Robinson’s mother, for several weeks.

K.B. testified that, on March 16, 2012, she met with a nurse, Carrie Donnell, at

Vanderbilt Hospital. The following exchange then occurred:

[THE STATE]: Between the time that the belt marks were

discovered on your body and the time you met with [Ms.] Donnell did you

see your biological mother . . . ?

[K.B.]: No.

[THE STATE]: Did you talk to her?

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[K.B.]: No.

[THE STATE]: And at that point how long had it been since you had

spoken to [your mother]?

[K.B.]: Three years.

[THE STATE]: And did you -- at that point did you even know how

to get in touch with her?

[K.B.]: No.

K.B. recalled that, during Ms. Donnell’s examination, she asked K.B. if anyone

ever touched her “inappropriately.” K.B. said “no” but then said that Defendant

“check[ed]” her and that “he showed [her] where [her] cherry was[.]” She also told Ms.

Donnell that Defendant touched her breasts. K.B. stated that, in response, Ms. Donnell

“looked at me like disgusted.” K.B. said she did not realize that Defendant’s actions

were not normal until Ms. Donnell responded in that manner to her disclosure.

On March 21, 2012, K.B. went to Nashville Children’s Alliance where she was

interviewed about the sexual abuse allegations. K.B. said that she and her siblings lived

with Ms. Dillard for three weeks, and then they moved in with their mother. K.B. stated

that, after moving in with her mother, her mother “read[] some papers” containing K.B.’s

allegations and that this was how her mother found out about the sexual abuse. She said

that she only told her mother about Defendant’s abuse when her mother confronted her.

On cross-examination, K.B. stated that, between the ages of ten and eleven,

Defendant “checked” her vagina once a week and her breasts twice a week. She

acknowledged that, over four years, that would be a “couple hundred” times. K.B. did

not recall going to Our Kids Center at Nashville General Hospital with her mother. She

explained that, one time, she asked her mother for a tampon, and her mother asked her

why she was using a tampon. K.B. said that she did not reply to the inquiry, and her

mother then asked if Defendant touched her inappropriately.

K.B. agreed that, when Defendant whipped her with the belt on March 14, 2012, it

hurt and made her angry. She agreed that Defendant and Co-Defendant Robinson were

strict, would not let her date, and would not let her on Facebook. She acknowledged that

she always wanted to go live with her mother; she stated that her mother also had rules

but agreed that her mother was more lenient. She said that she had her own Facebook

account when she was sixteen “about to turn seventeen.” She denied that she was dating

by June 2012, a few months after coming to live with her mother. K.B. agreed that she

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missed a lot of school while living with her mother and that she did not graduate from

high school. K.B. said that she was placed in a foster home for about a week because of

truancy and then returned to her mother’s home. K.B. denied ever hitting Co-Defendant

Robinson and said that she was never violent when living in Defendant’s home.

K.B. agreed that, when she testified at another proceeding on July 1, 2013, she

said that there was no noticeable injury to her nose after Defendant hit her, in

contradiction to her trial testimony that her nose was swollen. K.B. acknowledged that

she occasionally called her mother from school when she was in the fifth grade. She

would tell her mother that she was “getting beat[,]” and her mother would say that she

was trying to regain custody of K.B. and her siblings. She agreed that she previously

testified it was Co-Defendant Robinson who ordered her to take off her clothes before

Defendant hit her with the belt.

On redirect examination, K.B. denied that her mother told her to make up

allegations of sexual abuse against Defendant. She stated that, when she went to

Vanderbilt Hospital on March 16, 2012, she told Ms. Donnell that Defendant had touched

her vagina to make sure she was clean and so that she would know where her clitoris was

located. K.B. also told Ms. Donnell that Defendant checked her breasts because they

were different sizes. She agreed that Ms. Donnell was the first person to whom she

disclosed Defendant’s sexual abuse.

B.B. testified that she was born in June 1997 and that she was K.B.’s twin sister.

She explained that she lived with her biological mother until she was six years old. She

then moved in with Defendant and Co-Defendant Robinson, along with K.B. and their

younger siblings. B.B. recalled that she lived with Defendant for eight years and moved

out at age fourteen.

The following exchange then occurred:

[THE STATE]: Okay. During those eight years can you tell the jury

about how many times or how much contact you had with your mother . . .

?

[B.B.]: Well, I had to sneak and do it, so it wasn’t often. It was

every now and then, so I really can’t tell you.

[THE STATE]: Okay. Were there long periods where you didn’t

have any contact?

[B.B.]: Yes.

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[THE STATE]: Okay. Can you give the jury just an estimate of like

how long it would be sometimes?

[B.B.]: It could be a year.

B.B. recalled that, during the time she stayed with the defendants, they lived in

two different homes, one of which was located on Ewingdale Drive. B.B. stated that,

during the eight years she lived with Defendant and Co-Defendant Robinson, Defendant

touched her breasts and vagina multiple times. She testified, “My first time I wasn’t as

developed as my sister, so he didn’t check my breasts. He just checked my vagina with

his two fingers, opened it like that (indicating) and used his middle finger to rub my

clitoris. That was the first time.” B.B. stated that the abuse started when she was eight

years old and that the incident occurred in Defendant’s bedroom. She recalled, “He

called my name when I got out [of] the shower. He told me to come to his room. I came

to his room, and he told me to take my clothes off.” She said that Defendant then

directed her to lie on the bed and open her legs.

B.B. testified that the next incident she could specifically recall happened when

she was ten or eleven. She said, “I was more developed at the top, so that’s when he . . .

said the doctor said to check them like that, so that’s how he was checking my breasts

like that.” She said that Defendant told her he was checking her breasts for “lumps[.]”

She stated that, on this occasion, Defendant checked both her breasts and her vagina and

that it happened after she had taken a shower. She said that, when checking her vagina,

Defendant “used his two pointed fingers to open [her vagina] and his middle finger to rub

[her] clitoris.”

B.B. recalled the next specific time she remembered the abuse happening. She

said, “I got out [of] the tub, but this time he didn’t check my vagina or my breasts. He

just smelled my neck, up under my arms, and opened my butt and smelled my butt.” She

stated that Defendant was lying in bed and that neither she nor Defendant had on clothes.

B.B. testified that she knew the sexual abuse occurred at least eight times but that those

three incidents “just stuck out to [her].” She explained that the abuse always occurred in

Defendant’s bedroom when Co-Defendant Robinson was not around. She estimated that

the incidents where Defendant checked her breasts and vagina occurred “every other

month” after she turned ten or eleven. B.B. said that Defendant told her the reason he

was checking her vagina was to “make sure [she] was clean.” She explained that, when

Defendant decided she was not clean, he would “beat” her. B.B. stated that Defendant

began regularly touching her vagina around age ten or eleven and that Defendant’s

conduct continued until she left Defendant’s home. B.B. said that the only person she

discussed the abuse with was K.B. B.B. testified that she did not talk to her mother about

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the sexual abuse during the times she was able to sneak in a phone call to her mother.

She said that Defendant also kissed her on the lips.

B.B. testified that she left Defendant’s home after the incident in which Defendant

whipped K.B. with a belt. She recalled seeing bruises all over K.B.’s body and face, and

she noticed that K.B.’s face was swollen after the incident. B.B. testified that her sister’s

nose was bleeding and that she had “dried up blood on her face.” B.B. testified that, after

they were removed from Defendant’s home, she and her siblings lived with Co-

Defendant Robinson’s mother for three weeks. She agreed that, during a forensic

interview, she denied that anyone touched her inappropriately. B.B. explained, “Well, at

that time I wasn’t talking to nobody because we [were] still living with Ms. [Dillard], and

I didn’t know where I was going or who I was living with. Plus I was scared to even talk

because we could get in trouble for it.” She agreed that, at the time, she believed that

“that’s just what dads do[.]”

B.B. said that she had not talked to her mother about the sexual abuse prior to

March 21, 2012. She said that she first spoke to her mother after her mother picked up

B.B. and her siblings from DCS. B.B. recalled:

[W]ell, the forensic place had sent my mom a copy of everything

that was said and everything that was going on. And my mama came to me

and asked me, and I was open -- I just opened up to her because I knew I

wasn’t going back. So that’s when I just started talking to her.

B.B. acknowledged that her mother was less strict than Defendant and Co-

Defendant Robinson. She said that, after returning to live with her mother, she stopped

going to school because she was being picked on but stated that her mother believed she

was still attending because she “was catching the bus.” B.B. denied that her mother ever

told her to make up the allegations of sexual abuse and said that she had not spoken to her

mother for “a while” before the disclosure.

On cross-examination, B.B. testified that she left Defendant’s home when she was

in the eighth grade. She agreed that she sent Co-Defendant Robinson a friend request on

Facebook after returning to live with her mother. She agreed that she contacted Co-

Defendant Robinson through email and told Co-Defendant Robinson, “[E]ven though I

don’t live with you anymore you will always be my mother, you taught me everything.”

B.B. acknowledged that she stated in a Facebook conversation that she wished she had

her “old family back” and that she missed “everybody[.]” B.B. explained:

And that was when I first got back with [my mother.] That was

October. After October, you don’t see any more messages. Me and my

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mom was [sic] on a bad note. All I knew was them and their people.

That’s all I knew for eight years was them.

B.B. testified that, when she was first interviewed after leaving Defendant’s home,

she made no mention of being sexually abused. B.B. recalled that she told Jill Howlett at

Our Kids that Defendant would touch her vagina when she would get out of the shower.

She stated that her mother learned about the abuse after B.B. spoke to Ms. Howlett. B.B.

said that she did not tell her mother anything about the sexual abuse but that her mother

“read the papers” and confronted her about the allegations. She agreed that she spoke to

her mother about Defendant’s sexual abuse before she made the allegations to DCS. B.B.

said that she spoke to K.B. about the abuse while they were still living with Defendant.

B.B. agreed that the defendants did not allow her to have a cell phone and that her

mother allowed her to “do more on Facebook[.]” B.B. stated that she was dating

someone within three months of leaving Defendant’s home but explained that she was

dating “when [she] was staying with [the defendants], too . . . [but] [t]hey didn’t know.”

She acknowledged that K.B. was also allowed to date after leaving Defendant’s home.

On redirect examination, B.B. stated that she did not disclose that she had been

touched inappropriately during her first interview because she was scared and “didn’t

know who [she] was going back with at the time.” She said, “I didn’t know I was going

back with [my mother]. If I did know I was going back, I would have talked like I am

now.” B.B. was asked when she realized that Defendant’s touching may have been

wrong, and she replied, “When they had sent the packet through the mail with us talking

to the lady, and my mama had broke [sic] down crying and she had asked [K.B.] about

the tampon[.]”

Carrie Donnell testified that she was a pediatric nurse practitioner and full-time

member of the Child Abuse Response and Evaluation team at Vanderbilt University

Medical Center. Ms. Donnell recalled that, on March 16, 2012, Ms. Leeman with DCS

asked her to examine K.B. She spoke briefly to K.B. to obtain her medical history and to

discuss her injuries in greater detail. K.B. told Ms. Donnell that, two days prior, Co-

Defendant Robinson “started beating [her]” and used her fists to hit K.B. in the face and

“all over[.]” K.B. said that Co-Defendant Robinson then instructed her to take off all of

her clothes and go upstairs to see Defendant. Defendant then “whooped her with a belt”

and began “beating [her] with his fists . . . all over.” K.B. did not make any allegations of

sexual abuse at that point. When Ms. Donnell asked K.B. about whether she felt safe at

home, K.B. expressed fear of returning home and said she would run away.

Ms. Donnell testified that she then performed a physical examination of K.B. She

noted tenderness to K.B.’s nose and multiple bruises all over her body. Ms. Donnell

- 14 -

stated that, in her professional opinion, the injuries to K.B. were consistent with having

been hit by a folded belt. She said that the injuries were not self-inflicted. Ms. Donnell

explained that she next asked a “screening question” about whether K.B. had been

touched “down there in that region.” K.B. responded that Defendant touched her to

“make sure she [was] clean . . . and so she [knew] where her clitoris [was] located.” K.B.

also told Ms. Donnell that Defendant touched her breasts because they were different

sizes. K.B. stated that Defendant had touched her with his hands on more than one

occasion and that he had last checked her breasts a week prior.

Ms. Donnell explained that she conducted an external examination of K.B.’s

genitalia looking for any injuries. Ms. Donnell did not see any obvious bruising or

injury; she explained, however, that this finding did not rule out sexual abuse. Ms.

Donnell explained that she made a referral to Our Kids Center based on K.B.’s

disclosure. She stated that Our Kids had expertise in evaluating and providing medical

evaluations for children with concerns of child sexual abuse. Ms. Donnell explained that

she also notified her supervisor and Ms. Leeman of K.B.’s disclosure. Ms. Donnell said

that K.B.’s mother was not present for K.B.’s examination. On cross-examination, Ms.

Donnell stated that K.B. did not give “express details” regarding the sexual abuse.

Jill Howlett, a forensic social worker, testified that she was employed at Our Kids

Center, an outpatient clinic of Nashville General Hospital. She stated that she conducted

forensic medical evaluations when there were concerns of child sex abuse. Ms. Howlett

stated that on June 26, 2012, she met with B.B. at Our Kids. Ms. Howlett explained that

B.B. was referred to Our Kids by Ms. Leeman, and she recalled that B.B. was brought to

the center by her mother. Ms. Howlett testified that she first obtained a medical history

from B.B. She said that she asked mostly open-ended questions and some direct

questions. Ms. Howlett testified about her conversation with B.B., as follows:

[B.B.] described that [Defendant] would check her vagina when she

got out of the bath or shower -- I’m not sure which word she used -- and

that he would open up her vagina to make sure everything was okay. She

also described that he would examine her breasts, and she used two fingers

to kind of push on her own breast tissue, that he would do breast exams on

her. She described that as to make -- she thought it was to make sure she

was developing appropriately. I asked her specifically if he ever put his

mouth anywhere on her body or she ever had to put her mouth on his body,

and she said no. She also said that he would spank her butt but did not

describe anything going inside.

Ms. Howlett explained that B.B. said it happened more than one time but not

every time she got out of the shower. Ms. Howlett then explained the physical exam to

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B.B.; however, B.B. said that she did not want to have the exam done. Ms. Howlett

stated that Our Kids did not force children to undergo a genital examination and that,

based on the incidents described by B.B., “her risk for injury and infection was very

low.”

Defendant’s Proof

Janell Glover testified that she was employed at Smithson Craighead Academy

Project Reflect Incorporated, Tennessee’s first charter school. Ms. Glover stated that, in

2006, K.B. and B.B. were attending the school and having a difficult time there. She

explained that they were in the custody of their mother at the time and were often absent

from school. Ms. Glover testified, however, that when K.B. and B.B. went into the

custody of the defendants, their academic performance, behavior, and attitude improved

greatly. Ms. Robinson stated that K.B. and B.B. attended the school from kindergarten

through fourth grade.

Peter Streiff, an employee of DCS, testified that there was a custody disagreement

between the victims’ mother and the defendants regarding K.B. and B.B. He recalled

that, when the victims’ mother attempted to regain custody of her children, he conducted

home studies of both homes. He stated that, during one court proceeding relating to the

custody dispute, the victims’ mother tested positive for drug use.

Jennifer Leeman testified that she was employed as a caseworker by DCS and that

she was involved in the investigation into the allegations of sexual abuse against

Defendant. Ms. Leeman recalled that she watched K.B.’s forensic interview and agreed

that K.B. stated in the interview that Defendant “did not check her breasts that much[.]”

She explained that K.B. and B.B. were placed with Ms. Dillard following the allegations

but that Ms. Dillard asked that they be removed because they were being “disrespectful.”

Thereafter, K.B., B.B., and their siblings were sent to live with their mother. Ms.

Leeman recalled that she provided “some assistance” to the victims’ mother with the

transition of having five children placed in her home. She recalled that the victims’

mother asked for financial help, including “food stamps and housing.”

On cross-examination, Ms. Leeman recalled going to K.B.’s school on March 15,

2012, after the school notified DCS of K.B.’s injuries. Ms. Leeman stated that she saw

injuries to K.B., including bruises on her arms and legs. She stated that the children were

immediately removed from Defendant’s home and placed with Ms. Dillard. Ms. Leeman

said that she was not able to get in contact with the victims’ mother at that time because

she “did not have her contact information[.]” Due to her injuries, Ms. Leeman scheduled

an appointment for K.B. at Vanderbilt Hospital for March 16, 2012, and she recalled that

- 16 -

Ms. Dillard took K.B. to the appointment. Ms. Leeman said that the victims’ mother had

not been contacted by that date.

After learning about the allegations of sexual abuse made by K.B. to Ms. Donnell,

Ms. Leeman scheduled an appointment for K.B. at Nashville Children’s Alliance, where

a forensic interview was conducted. Ms. Leeman accompanied K.B. to the forensic

interview, which was conducted March 21, 2012. Ms. Leeman said that the first time she

had seen or spoken with the victims’ mother was on March 26, 2012, when K.B., B.B.,

and their siblings were placed into her custody.

Shaska McBride testified that she worked for DCS and that, in 2014, she assessed

the victims’ mother’s home after concerns were raised that she was leaving K.B. and B.B.

unsupervised. She said that the victims’ mother acted “more as a friend” than as a

mother and “had no clue about how to parent her children[.]”

Veronica Stephens-Anderson testified that she had known Defendant and Co-

Defendant Robinson for over twenty-five years and that they had attended church

together. She stated that, in her opinion, Defendant and Co-Defendant Robinson were

“very trustworthy” and that they had a “[v]ery good” reputation in the community.

Talicia Tyus testified that Co-Defendant Robinson was her cousin. Ms. Tyus

explained that she had known Defendant for sixteen years, since she was four years old.

She said that, between the ages of twelve and fifteen, she lived with the defendants. She

stated that, based on her knowledge of Defendant, she did not believe he would sexually

assault a young woman.

Ebony Stephens testified that she was twenty-five years old and that Defendant

was her “god dad.” She stated that, between the ages of twelve and seventeen, she saw

Defendant often and attended church with him every Sunday. Ms. Stephens explained

that she visited Defendant’s home two to three times a week. She recalled that the

defendants had K.B. and B.B. involved in the choir at church, in basketball, and in “a lot

of different activities outside of the home.” Based on her knowledge of Defendant, Ms.

Stephens testified that she did not believe Defendant would be “inappropriate sexually

with a young woman” and stated that she had not experienced that from Defendant.

Timothy Claybrooks testified that he worked for DCS and that he had contact with

K.B. in 2013, when K.B. was placed in a foster home over the weekend based on her

behavior at home with her mother. Mr. Claybrooks recalled that K.B.’s behavior was

poor at the foster home too; the foster parent reported that K.B. would not follow rules or

do anything asked of her.

- 17 -

Defendant testified that on March 14, 2012, he was upstairs lying in his bed when

an altercation broke out between Co-Defendant Robinson and K.B. He said that both Co-

Defendant Robinson and K.B. came into the bedroom to explain their side of what

happened. Defendant learned that K.B. had lied about calling their neighbor, Ms. Moore,

and he stated that she had called Ms. Moore without permission. Defendant stated that he

decided K.B. needed a whipping because she hit Co-Defendant Robinson in the stomach.

He explained that Co-Defendant Robinson was pregnant at the time. Defendant testified,

“I just told [K.B.] to pull her pants down, lay on the bed, I went and got my belt, and I

gave her several licks.” He stated that K.B. had on underwear. Defendant agreed that the

bruises to K.B. seen in photographs introduced by the State were caused by his hitting her

with the belt. He claimed, however, that it was not his intent to cause the bruises. He

said that K.B. was “grabbing for the belt and trying to take it out of [his] hands” and that

she received the bruises while struggling during the whipping. Defendant denied ever

striking K.B. in the face or nose. He said that her nose was not injured that day.

Defendant recalled that Co-Defendant Robinson took K.B. to juvenile detention

after the whipping to show K.B. “this [was] where children that act up go and this [was]

not where [she] want[ed] to end up.” Defendant said that, when they returned home,

K.B. cleaned the kitchen; Co-Defendant Robinson came upstairs to talk to him, and

“everything went back to normal.” K.B. finished her homework and went to bed.

Defendant denied ever touching K.B. or B.B. inappropriately. He said, “I have no

idea where the term checking comes from. But when they would get out [of] the shower,

they would still smell like they had a bag of onions in a headlock. And I would make

them get back in the shower.” He explained further, “They would come out in their

pajamas, and you could smell their arms and their vagina through their clothes.” He said

that both K.B. and B.B. came to him and Co-Defendant Robinson complaining of

“discharges” and that their doctor told Co-Defendant Robinson “it was because they were

not cleaning themselves properly.” Defendant agreed that K.B.’s breasts “weren’t

developing evenly” and said that they took her to the doctor about this issue.

Defendant stated that K.B. and B.B. were “doing excellent” while living with him

and Co-Defendant Robinson. He recalled that they went to school daily, were involved at

church, that K.B. played softball and basketball, and that B.B. was a cheerleader.

Defendant stated that, when he observed the victims’ behavior during their testimony, he

leaned over and told trial counsel that “when they start acting like that they’re lying.”

Defendant explained, “They get nervous, they do the crying, the whole bit. And they

want people to feel sorry for them. So when they act like that, they’re lying.”

On cross-examination, Defendant stated that K.B. and B.B. moved into his home

in 2003, when they were six years old. He agreed that, during the eight years they lived

- 18 -

with him, K.B. and B.B. rarely saw their mother. He said that the victims’ mother only

tried to regain custody of them one time, in 2006. He said that he gave K.B. a spanking

on March 14, 2012, because she hit Co-Defendant Robinson in the stomach. Defendant

admitted that there were times when he was at home with the victims when Co-Defendant

Robinson was not there.

Co-Defendant Robinson testified that neither she nor Defendant ever sexually

abused K.B. or B.B. Co-Defendant Robinson explained that she first met the victims’

mother while working as the director of a daycare where the victims’ mother was

employed. Co-Defendant Robinson stated that she had owned the own daycare facility

for sixteen years and that there had never been any complaints against her for sexually

abusing children. She recalled that the victims’ mother felt she was unable to care for her

five children and, initially, asked the defendants to take care of the three youngest

children for a short time. The defendants agreed to help the victims’ mother, and they

completed a power of attorney for the children’s medical and school needs. Co-

Defendant Robinson recalled that, after about a year, the victims’ mother asked the

defendants to take the two older children, K.B. and B.B., and Co-Defendant Robinson

realized that the arrangement was going to be long-term.

Co-Defendant Robinson testified that the victims’ mother attempted to regain

custody of the children in 2006, after Co-Defendant Robinson confronted her about how

she was still receiving benefits for the children. Five hours later, the victims’ mother was

at Defendant’s home with the police attempting to take back the children. The victims’

mother later took the matter to juvenile court, but the defendants were awarded custody

of the children.

Co-Defendant Robinson stated that the children behaved “badly” when they first

came into the defendants’ custody. However, their behavior and school performance

improved greatly while living with the defendants. Co-Defendant Robinson said that she

and Defendant made sure that the children got an education and that they were involved

in extracurricular activities. She recalled that, around 2012, K.B. began getting in trouble

at school. Additionally, Co-Defendant Robinson became pregnant with her second child

at that time, and she “felt a little distance” between her and K.B. Co-Defendant Robinson

said that K.B. and B.B. never expressed that they would prefer to live with their mother.

Co-Defendant Robinson stated that, during the years that K.B. and B.B. lived in her

home, she regularly took them to a pediatrician. She agreed that the girls had “some

issue with discharge” and were taken to see their doctor to address the issue. She said

that both she and Defendant made sure that the girls showered properly.

Regarding the confrontation on March 14, 2012, Co-Defendant Robinson

explained that Ms. Moore came over to pick up K.B to go to church. Co-Defendant

- 19 -

Robinson said that K.B. lied to Ms. Moore and then lied when Co-Defendant Robinson

confronted her. When K.B. finally admitted that she had called Ms. Moore from school

because she did not want to go to a program at the defendants’ church, Co-Defendant

Robinson told her that she could not help a neighbor that weekend as they had previously

planned. K.B. got upset and began yelling. She then “elbowed” Co-Defendant Robinson

in the stomach and “stormed upstairs.” After Co-Defendant Robinson told Defendant

what happened, he said that K.B. was “going to get a whooping.” Co-Defendant

Robinson stated that neither she nor Defendant punched K.B. in the face. Defendant told

K.B. to pull her pants down. Co-Defendant Robinson testified that K.B. pulled down

both her pants and underwear, and Defendant had her bend over so that she could “get

her whooping.” Co-Defendant Robinson recalled that K.B. struggled and attempted to

grab the belt used by Defendant. She said that Defendant hit K.B. four times.

Afterwards, Co-Defendant Robinson drove K.B. to juvenile detention and explained that

was where children were sent who lied and were disrespectful.

On cross-examination, Co-Defendant Robinson stated that she had never discussed

the criminal case with Defendant, even though they were still married and lived in the

same house. She claimed that, in the eight years that K.B. and B.B. lived in her home,

Defendant was never alone with them. Co-Defendant Robinson said that she had never

seen the children get a whipping because they were not clean. She stated that Defendant

never told her that “he could smell their vaginas” when K.B. and B.B. got out of the

shower. She reiterated that neither K.B. nor B.B. expressed to her a desire live with their

mother.

At the close of proof, Defendant made a motion for judgment of acquittal, which

the trial court granted as to some counts. The State then made an election of offenses.

Closing Argument

During Defendant’s closing argument, trial counsel stated, “We’re going to talk

about the possible motives in this case in a minute. You’ve already heard them. We

don’t have to prove motive, but it’s always kind of nice to know why someone might

make allegations.” He noted that K.B. and B.B. “were yanked away from their biological

mother at the age of five . . . [y]ou can only imagine how that felt, but no one addresse[d]

it.” Trial counsel continued:

And even professionals, it’s just the last five or ten years they’re

realizing, you know, the amount of therapy that children in that situation

need and what to do for them. [K.B. and B.B.] didn’t get the therapy they

needed. So they were yanked away from their biological mother. And as

[K.B.] testified, she never wanted to go and she always wanted to go back

- 20 -

and live with her mother. So while the [defendants] are doing the best that

they can as parents, as foster parents for these children, I would submit to

you that those emotional bonds are not forming for [K.B.] and [B.B.]

Trial counsel argued that, after the whipping, K.B. was angry and did not want to

go back to Defendant’s home. He noted that Ms. Donnell, who conducted the original

physical examination of K.B., “with no medical history to suggest anything happened . . .

says, well, by the way, has anybody touched you down there[.]” He argued that K.B.

made the allegation that Defendant touched her inappropriately to ensure that she did not

have to go back to live in Defendant’s home. Trial counsel argued that B.B. maintained

for several months that she was not touched sexually but that,

all the sudden after her mother speaks to her[,] she changes her story. I

think you saw from the demeanor in the courtroom that these girls are

going to stick together whichever way they decide to go. So finally [K.B.]

got [B.B.] on board with this story. . . . And that, ladies and gentlemen,

ensured they were never going back to the [defendants].

Trial counsel additionally argued that the victims were not credible and pointed out

inconsistencies in the testimony.

In its final closing argument, the State addressed trial counsel’s assertion in

opening statement that the victims’ mother instigated the allegations of sexual abuse.

The prosecutor argued:

I want to start with what you were told by [trial counsel] when this

case began. You were told that the sexual assault allegations were initiated

and started by [the victims’ mother] in order to gain custody. You were

told that there was no allegation of sexual abuse that occurred until [the

victims’ mother] was in the picture. You were told that [the victims’

mother] and DCS swooped in to get these twins away from the

[defendants]. What did the evidence actually show, ladies and gentlemen?

[The victims’ mother] was nowhere to be found in March of 2012 when

this whipping occurred. [The victims’ mother] was not present when

[K.B.] was examined by [Ms.] Donnell, the pediatric nurse practitioner.

[Ms.] Leeman didn’t even have any contact information for her. Neither

[K.B.] nor [B.B.] had talked to [the victims’ mother] in the months prior to

March 2012, hadn’t even talked to her. They hadn’t lived with her since

they were six-years old.

- 21 -

The State then addressed additional motives to lie raised by the defense, including

the victims’ desire to live with their mother, the “too strict” home life that the victims had

with the defendants, and K.B.’s wanting to “get the [defendants] back after receiving the

whipping.” The prosecutor concluded by arguing that Defendant’s own testimony, and the

inconsistent and incredible testimony from Co-Defendant Robinson, supported a

conclusion that the victims were telling the truth about Defendant’s sexual abuse.

Following deliberations, the jury found Defendant guilty of five counts of

aggravated sexual battery, four counts of rape of a child, two counts of sexual battery by

an authority figure, two counts of rape, and one count of attempted rape of a child.

Sentencing

Following a sentencing hearing, the trial court imposed the following sentences:

Renumbered Conviction Offense Classification Sentence

Count

1 Aggravated Sexual Class B felony 10 years at 100%

Battery

2 Aggravated Sexual Class B felony 10 years at 100%

Battery

3 Aggravated Sexual Class B felony 10 years at 100%

Battery

4 Attempted Rape of a Class B felony 10 years at 100%

Child

5 Rape of a Child Class A felony 30 years at 100%

6 Rape of a Child Class A felony 20 years at 100%

7 Sexual Battery by an Class C felony 5 years at 30%

Authority Figure

10 Rape Class B felony 10 years at 100%

13 Aggravated Sexual Class B felony 10 years at 100%

Battery

14 Aggravated Sexual Class B felony 10 years at 100%

Battery

16 Rape of a Child Class A felony 20 years at 100%

- 22 -

17 Rape of a Child Class A felony 20 years at 100%

19 Sexual Battery by an Class C felony 5 years at 30%

Authority Figure

22 Rape Class B felony 10 years at 100%

The trial court ordered Counts 1-4 to run concurrently. The court further ordered

Counts 5-7 to run concurrently to each other but consecutively to Counts 1-4. The trial

court ordered Counts 16-17 to run concurrently to each other but consecutively to Counts

5 and 6. All other counts were ordered to run concurrently, for a total effective sentence

of sixty years’ incarceration.

Defendant filed a timely motion for a new trial and a motion for trial counsel to

withdraw. Defendant then filed an amended motion for new trial, asserting numerous

claims including that he was denied the effective assistance of counsel.

Motion for New Trial Hearing/Post-Conviction Hearing

At a hearing, Ronald Nollner testified that the worked for the state trial courts as a

jury coordinator. Mr. Nollner explained that he summoned jurors each week when trials

were scheduled. He stated that Defendant’s trial began on February 6, 2017, and that

there were four jury trials held that day in Davidson County. Mr. Nollner said that a trial

began in Judge Watkins’ courtroom at 9:16 a.m.; the trial in Judge Norman’s courtroom

began at 9:26 a.m.; Defendant’s trial in Judge Blackburn’s courtroom began at 9:53 a.m.;

and Judge McClenden’s trial started at 10:32 a.m. He explained that all of the summoned

jurors were sent to one of those four courtrooms that morning. He stated that one juror,

Mr. Sparks, checked in at 8:04 a.m. and was sent to the panel in Judge Blackburn’s

courtroom at 9:53 a.m. Mr. Sparks returned to the jury assembly room at 10:41 a.m.

Thereafter, Mr. Sparks and other jurors were told to return the following day for a trial set

to start in Judge Wyatt’s courtroom. Mr. Nollner stated that Mr. Sparks checked out at

11:59 a.m. Mr. Nollner testified that the jury in Defendant’s case was the last to be

selected, at approximately 3:00 p.m. He stated that, if Judge Blackburn had contacted

him on February 6 around the time that Mr. Sparks had been sent back to the jury

assembly room and had requested a new panel of thirty to forty jurors that had not been

in the initial group, Mr. Nollner would have been able to fulfill her request.

K.B. testified that she did not recall telling B.B., when the allegations of sexual

abuse first came to light, that she was going to “get even” with Defendant and Co-

Defendant Robinson. She agreed that she continued to go to the same church as the

- 23 -

defendants for a few weeks after being taken out of their home. She said that she did not

recall talking to anyone at the church and mentioning “getting even” with the defendants.

B.B., who also testified at the hearing, denied that K.B. ever said that she was

going to “get even” with the defendants. She did not recall continuing to attend the same

church as the defendants after being removed from their home. She denied telling

anyone at church that K.B. said she was going to get even with Defendant and Co-

Defendant Robinson.

Co-Defendant Robinson testified that she pled guilty in August 2017 to assault and

received a sentence of six years’ probation. Co-Defendant Robinson said that, after the

victims had been removed from her home, she was in church with the victims, and B.B.

told her that K.B. said she was “paying [them] back[.]” Co-Defendant Robinson said that

her conversation with B.B. occurred right after the notification from the school, so Co-

Defendant Robinson “related it to what the school told us the complaint was.” She said

that she told trial counsel about her conversation with B.B.

Trial counsel testified that he had practiced law for thirty-one years and had

started his own practice as a criminal defense attorney in 1995. He said that he had tried

at least 200 jury trials. He said that he was hired to represent Defendant shortly after

Defendant’s arrest in 2012. Trial counsel said that, by the time of trial, Defendant’s case

had been pending for about four years and that it had been his longest ongoing open case.

Trial counsel testified that there had been many motions, hearings, and issues with

discovery and stated that the case was one of the most complex he had tried in terms of

evidentiary issues.

Trial counsel explained that he filed a motion to sever the physical abuse

allegation from the sexual abuse allegations, which was granted by the trial court. He

recalled that Defendant was tried first on the severed charge of aggravated child abuse.

He agreed that many of the issues and defenses involved in the first trial overlapped “to a

significant degree” with the remaining charges. He stated, however, that the main theory

of defense in the aggravated child abuse case was to admit that Defendant hit K.B. with a

belt but deny that K.B.’s injuries rose to the level of serious bodily injury. Trial counsel

testified that he never attacked the motive of the victims in the first case. In the second

case, the defense theory was that Defendant denied the allegations of sexual abuse, and

trial counsel was “looking for a motive to explain why the allegations would’ve been

made if they were false.”

Trial counsel said that he put the records used in the first trial into storage after

trial. He explained that he packed up what he thought was

- 24 -

just the documents, reports, everything dealing with the physical abuse and

just kind of put that in a box and put it away in storage and forgot about it.

And that included Ms. Donnell’s report, and that report dealt with the

physical abuse but also contained her statements of . . . [K.B.] making the

first allegation of sexual abuse to Ms. Donnell.

He stated that, before the second trial, he did not look at Ms. Donnell’s report again.

Regarding his preparation for the second trial, trial counsel stated that he began

preparing both cases for trial before the first trial started. He explained, however, that

because the defenses were different, he focused on different things in preparing for the

first trial. He said that, after the first trial was concluded, he prepared for cross-

examination for in the second case. He testified that he had opened the file and had

prepared for trial in the sexual abuse case “a number of times” and that “trial preparations

were done multiple times because this case had been continued multiple times[.]” He

admitted that he opened the file to prepare for the second trial much later than he

normally would have because he had done “everything previously[.]” He said that he

went through the file to refresh his memory and to see “if there was anything [he] could

do better.”

Trial counsel stated that, on the Saturday morning before trial, he went to his

office and began reviewing things for trial. He stated that he decided to prepare a

timeline of important events in the case. He stated that he prepared the timeline using

rough notes he had made. Trial counsel said that he began to feel ill, and he was

frustrated with his attempts to create a timeline using PowerPoint. By early Saturday

evening, trial counsel was “feeling very sick, nauseous, [and had a] severe headache.”

He had to lie down in his office for several hours before he had been able to drive home.

Trial counsel stated, “I remember thinking there’s no way I’ll be trying a case on

Monday, I’ll probably be calling in on Monday morning to the court.”

Trial counsel testified that he eventually created a timeline using an Excel

spreadsheet with “colors and dates and events[.]” Trial counsel agreed that, when he

made the spreadsheet, he did not recall the March 16, 2012 report from Ms. Donnell and

explained that he did not have the report in his active file. He explained, “Whatever

happened, I just completely forgot and was unaware of that initial allegation being made

to Ms. Donnell.” As a result, K.B.’s initial disclosure of sexual abuse to Ms. Donnell did

not make it into the timeline. According to trial counsel’s timeline, the first allegation of

sexual abuse occurred on April 1, 2012, after the victim’s mother regained custody, when

the victims’ mother informed DCS that B.B. was claiming sexual abuse. Based on the

timeline that he developed, trial counsel asserted that the victims’ mother was behind the

sexual abuse disclosures because they did not arise until the mother was “back in the

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picture[.]” Trial counsel testified that, from the beginning, it was the defense theory that

the victims’ mother “had something to do with this.” He said:

What we could never really do, you know, is prove a conversation or

even a meeting between [the victims’ mother] and the [victims] prior to

them, prior to the date [K.B.] went to school with the bruises. So while our

theory was that [the victims’ mother] probably had something to do with it,

we didn’t have this smoking gun, so to speak, of a meeting between [the

victims’ mother] and the [victims] before DCS was called about the

physical abuse.

When he put together his timeline, trial counsel noticed that there was no allegation of

sexual abuse until after the victims’ mother had contact with the victims. Trial counsel

said that he “felt that was clearly supportive of our theory.” Trial counsel agreed that he

had not previously seen anything to show “recent contact” between the victims’ mother

and the victims. He said that, before the examination by Ms. Donnell, “there may have

been some phone calls, but nothing very recent.”

The following exchange then occurred:

Q. Is it fair to say that the [Ms.] Donnell report on March 16, 2012,

effectively made the defense that the birth mother was behind the

allegations impossible?

A. I wouldn’t agree that it was impossible, but it certainly made it

more difficult and it certainly was directly contradictory to what I told the

jury.

Trial counsel testified that, by Sunday afternoon, he was feeling “well enough to

sit up, get up, [and] walk around a little bit.” He said that because he had prepared the

case for trial numerous times, he felt that he was ready and did not really need to do any

work on Sunday. He woke up Monday morning “not feeling great but . . . felt like, yeah,

I’m good to go, I can do this.” He did not recall telling Defendant about his illness or

that he might need to continue the trial. He stated that he advised the jury he had “a little

bug” because his voice was raspy. Trial counsel said that he wondered if his illness

contributed to his missing Ms. Donnell’s report. He stated that he was able to function

during the trial but that, in hindsight, he felt that “there were certain parts of the trial that

[he] let get out of control[.]” Trial counsel felt that he let the testimony delve too far into

the physical abuse allegation. He recalled sitting at the defense table and thinking “how

did I let this get . . . to the point where so much of the details of this physical abuse

situation ended up being testified to, how did this happen[?]” Trial counsel agreed that

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the trial court had issued some pretrial orders on the extent to which the parties could

offer evidence of the physical abuse in the second trial.

Trial counsel stated that he first realized that he made a mistake as to the timeline

of events early in the trial at a bench conference when the prosecutor mentioned it to the

trial court. He said that he had an “oh crap moment” and that the only thing he could

think to do was to try to explain to the jury in closing argument that “look, I made a

mistake, don’t hold that against [Defendant].” However, trial counsel said that he

decided not to mention the mistake during closing; he said that he hoped the State would

not use the mistake in its final closing argument, and he hoped that the jury would realize

it was not intentional. Trial counsel testified that, in his opinion, his telling the jury that

the victims’ mother planted the idea of sexual abuse in the minds of the victims was

ineffective assistance of counsel. He said that it was a “major point” regarding the

central theory of Defendant’s case. He said, “If you do something that the jury is going

to find not credible as a lawyer, I think that’s going to rub off on your client.”

Trial counsel recalled that Co-Defendant Robinson overheard a conversation in

which one of the victims said that “she was going to get even.” He stated that he meant

to ask K.B. and B.B. about this during cross-examination, but he failed to do so. He

recalled that, when he asked Co-Defendant Robinson about the statement, the State

objected because he had not asked K.B. or B.B. about it. Trial counsel stated that his

response to the State’s objection should have been that he was offering the statement as

evidence of the declarant’s state of mind, not as impeachment. He stated that it showed

the victim was upset and angry.

Trial counsel recalled that, during voir dire, Mr. Sparks said that he had been a

grand juror and that, in his experience, “everybody who gets indicted is guilty[.]” After

Mr. Sparks was excused, trial counsel asked that the trial court inform the potential jurors

that the grand jury does not hear all of the evidence. Trial counsel said that he should

have asked the trial court to instruct that the standard for an indictment was probable

cause rather than proof beyond a reasonable doubt. He said that there was not a strategic

reason that he did not ask for that instruction; he just did not think of it at that exact

moment.

Trial counsel testified that it was “completely improper to allow the [S]tate to just

restate, to rephrase prior witness testimony and ask [Defendant] if he had heard that

testimony; so [he] made objections.” He testified that the State’s questioning of

Defendant in this manner spanned ten pages of the trial transcript. Trial counsel agreed

that he attempted to limit the testimony about the physical abuse—both in a pretrial

motion and during trial. He said, “I mean I will say this somewhat in my defense. It was

a pretty fine line we were trying to walk because there was an agreement that, all right,

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some of it was fair game because of the whole motive issue[,]” referring to the defense

theory that the victims were motivated to make up the allegations of sexual abuse because

“they were getting beatings.” Trial counsel understood that the trial court was going to

allow some of the evidence about the whipping but said that it “got way farther into that

than what should have been allowed.” He said that he failed to “keep a lid on it” and

acknowledged that there was no strategic reason for not objecting.

Trial counsel stated that the defense theory was two-prong: the theory was that the

victims’ mother may have instigated the allegations and “also, even more so, was the

theory . . . that the [defendants] were very strict and would not let the kids do what they

wanted, and that when the kids got to go live with their biological mother . . . they pretty

much had free reign, go to do whatever they wanted.” Trial counsel recalled a statement

he found in the DCS records where K.B. “told the caseworker that she [became] violent

when she [didn’t] get her way.” Trial counsel asserted that he should have been able to

present the statement as it was relevant and important to the defense. He argued that, if

K.B. became violent, “[was] it that much harder to believe that she would make a false

allegation of sexual abuse.”

Trial counsel agreed that he attempted to subpoena housing and benefit records

relating to the victims’ mother. He said that, as soon as the children were returned to

their mother’s custody, she was “back asking DCS and the government for financial

assistance of the children.” He agreed that one of the reasons the trial court denied the

subpoena was that he filed the request too close to trial. He explained that he focused on

this issue “late in the ball game” and that he did not think about requesting the records

until about a month before trial. Trial counsel stated that he believed the records would

have been “some additional evidence in support of our theory that . . . [the victims’

mother is] just wanting the kids back, and maybe initiated or cause the initial of these

sexual abuse allegations because that gets her the kids back and . . . gets her financial

aid.”

Trial counsel stated that, if a trial judge is unnecessarily hostile toward one party

for no reason, “it does create a great deal of concern for the jury and is going to cause a

great deal of concern for the jury about the lawyer’s credibility and thus his client’s

credibility.” He said that he believed the trial court was hostile to the defense in this

case. Trial counsel concluded that he did not believe Defendant received a fair trial due

to his performance.

On cross-examination, trial counsel admitted that the theory that the victims’

mother influenced the victims’ allegations was not the only theory he pursued at trial. He

stated that additional defense theories included that the victims made the allegations

because of K.B.’s whipping. Another theory the defense pursued was that the victims

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wanted to go live with their mother because Defendant and Co-Defendant Robinson were

“ultra[-]strict on them[.]” Trial counsel said that it was his theory that, regardless of

when the information came out about the sexual abuse, that the victims’ mother was still

influencing the victims to make these allegations “so she could get custody for the

benefits.” Trial counsel recalled that, during his cross-examination of K.B., K.B.

admitted that she had talked to her mother some time before she made the allegations.

He agreed that K.B. admitted to talking to her mother and telling her mother about

receiving beatings from the defendants. Trial counsel agreed that the theory that the

victims’ mother planted the allegation was not the sole defense. Trial counsel testified,

“[O]ur central theme was their motive was they wanted to go live with their mother . . .

and, therefore, made the false allegations.”

Trial counsel stated that, if he had felt he could not proceed to trial due to his

illness, he would have requested a continuance. He said that he felt like he could do it.

He acknowledged, however, that he “dropped the ball” by making a material

misrepresentation to the jury and by allowing the State to present too much evidence

about the physical abuse. Trial counsel said that he felt physically drained and had a lack

of energy and focus during the trial.

Trial counsel stated that it was a strategic decision not to request a mistrial when

Mr. Sparks made the statement about the grand jury. He explained that the answers he

was receiving from jurors on the panel were “exceptionally good,” and he thought, “I

love this panel.” Trial counsel agreed that he asked for a curative instruction from the

trial court, and both sides discussed the State’s burden of proof during voir dire. Trial

counsel testified that a fair representation of the State’s questions to Defendant were

“asking [Defendant] to respond or to admit or deny the allegations that the victims were

making.” He agreed that the issue of the physical abuse—and the extent to which it was

admissible—was litigated before trial, and the trial court issued an order about the

parameters. Trial counsel recalled that he did ask K.B. about her using the bruises to get

the defendants “in trouble.”

At the conclusion of the hearing, the trial court took the matter under advisement.

The trial court then denied the motion for new trial in a lengthy written order. This

timely appeal follows.

II. Analysis

A. Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to support his convictions. He

asserts that “the weight of the evidence simply did not support the guilty verdicts[,]”

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arguing that the victims’ accounts of how often the abuse occurred varied considerably

and that the victims were impeached several times by direct contradictions. He further

argues that many of the victims’ claims were produced by “overtly leading questions,

rather than independent recollection[,]” that the victims’ explanation for not reporting the

abuse sooner does not “make sense[,]” that B.B.’s actions after leaving Defendant’s home

were inconsistent with claims of abuse, and that the victims had a motive to lie.

The State responds that the evidence overwhelmingly supports Defendant’s

convictions. The State contends that the victims provided consistent accounts regarding

the substance of the abuse and that the fact that dates were difficult for them to parse out

did not undermine their testimony when considering that there was repeated abuse over

the course of several years. The State further argues that the credibility of witnesses is

for the jury to determine, and the jury clearly accredited the victims.

Our standard of review for a sufficiency of the evidence challenge is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. Our standard of review “is the same whether the

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The defendant bears the burden of proving why the evidence was

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221

S.W.3d 514, 521 (Tenn. 2007).

1. Aggravated Sexual Battery

Defendant was convicted of five counts of aggravated sexual battery. As charged

here, aggravated sexual battery is unlawful sexual contact with a victim by the defendant

or the defendant by a victim when the victim was less than thirteen years of age. Tenn.

Code Ann. § 39-13-504(a)(4) (2011). “‘Sexual contact’ includes the intentional touching

of the victim’s, the defendant’s, or any other person's intimate parts, or the intentional

touching of the clothing covering the immediate area of the victim’s, the defendant’s, or

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any other person’s intimate parts, if that intentional touching can be reasonably construed

as being for the purpose of sexual arousal or gratification[.]” Tenn. Code Ann. § 39-13-

501(6) (2011).

K.B. said that Defendant began touching her when she was ten years old, when her

“breasts were developing.” She recalled that she was in Defendant’s bedroom in the

home on Woodview Circle when Defendant first touched her breasts. She stated that

Defendant called her into his room to have a talk about “her growing into a lady[.]” She

took off her shirt, and Defendant touched her breasts and talked to her about them. K.B.

testified that, the next time she could recall Defendant fondling her breasts, they were

living in the house on Ewingdale Drive, and she was about twelve years old. K.B.

recalled that she knocked on the door to Defendant’s bedroom and entered the room. She

told Defendant that she “couldn’t feel [her] nipple[.]” Defendant told her to take off her

bra, and Defendant began touching her breasts. He then “put his mouth on [her] nipple to

see if [she] could feel it.” Finally, K.B. testified that, between the ages of ten and twelve,

Defendant touched her breasts at least twice a week in his bedroom. She said that

sometimes Defendant called her into his bedroom to check her breasts and that

sometimes she told Defendant that she was “having problems” with them. K.B. recalled

that Defendant made her lay on top of him while he was naked underneath his bed

covers, and she said that Defendant kissed her on the mouth and attempted to put his

tongue in her mouth.

B.B. testified about an incident that occurred when she was ten or eleven. She

said, “I was more developed at the top, so that’s when he . . . said the doctor said to check

them like that, so that’s how he was checking my breasts like that.” She said that

Defendant told her he was checking her breasts for “lumps[.]” B.B. further testified that,

between the ages of ten and twelve, Defendant touched her breasts on more than one

occasion. She said that the touching always occurred in the same manner in Defendant’s

bedroom and that he touched her vagina at the same time. B.B. also stated that

Defendant kissed her inappropriately on the mouth. The victims’ testimony is sufficient

for any rational trier of fact to find Defendant guilty of five counts of aggravated sexual

battery beyond a reasonable doubt.

2. Rape of a Child and Attempted Rape of a Child

The jury also found Defendant guilty of four counts of rape of a child and one

count of attempted rape of a child. Rape of a child is defined as “the unlawful sexual

penetration of a victim by the defendant or the defendant by a victim, if the victim is

more than three (3) years of age but less than thirteen (13) years of age.” Tenn. Code

Ann. § 39-13-522(a) (2011). “Sexual penetration” is defined as: “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part

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of a person’s body or of any object into the genital or anal openings of the victim’s, the

defendant’s, or any other person’s body, but emission of semen is not required[.]” Tenn.

Code Ann. § 39-13-501(7) (2011). “A person commits criminal attempt who, acting with

the kind of culpability otherwise required for the offense . . . [a]cts with intent to

complete a course of action or cause a result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes them to be, and the conduct

constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. §

39-12-101(a)(3) (2011).

Here, K.B. recalled that, the first time Defendant touched her vagina, she was

eleven years old. She said that she got out of the shower “too fast[,]” and Defendant

instructed her to lie on his bed and open her legs “wide open.” K.B. stated that

Defendant checked her vagina by using his two fingers to spread open her labia. K.B.

testified that, the second time Defendant touched her vagina, she was twelve-years old.

K.B. explained, “We [were] having a conversation about sex, and he asked me did I

know where my cherry was. And I told him no.” K.B. said that she took off her pajama

pants and underwear off and lay down on Defendant’s bed. He then inserted his finger

into her vagina to show K.B. where her “cherry” was located. K.B. also testified that,

between the ages of eleven and twelve, Defendant regularly checked her vagina by using

his fingers to open the labia and move his fingers around the creases. She recalled that

Defendant began touching her clitoris as a part of this process when she was about twelve

years old.

B.B. testified that, when she was ten or eleven years old after she took a shower,

Defendant checked her vagina by using two fingers to spread open her vagina, and he

rubbed her clitoris with his middle finger. B.B. also testified that, between the ages of ten

and twelve, Defendant touched her vagina on more than one occasion. She said that

Defendant would spread her labia and use his middle finger to rub her clitoris. B.B.

stated that this would occur in Defendant’s bedroom and that Defendant would fondle her

breasts at the same time. Based on this testimony, a rational trier of fact could find

beyond a reasonable doubt that Defendant was guilty of four counts of rape of a child and

one count of attempted rape of a child.

3. Rape

Defendant was also convicted of two counts of rape. As charged in this case, rape

is unlawful sexual penetration of a victim by the defendant or of the defendant by a

victim when force or coercion is used to accomplish the act. Tenn. Code Ann. § 39-13-

503(a)(1) (2011). “Coercion,” as relevant here, means “the use of parental, custodial, or

official authority over a child less than fifteen (15) years of age[.]” Tenn. Code Ann. §

39-13-501(1) (2011).

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In this case, K.B. testified that Defendant regularly checked her vagina, between

the ages of ten and twelve, by using his fingers to open the labia. She said that Defendant

would touch her clitoris and move his finger “around the creases.” B.B. testified that

Defendant touched her vagina on more than one occasion between the ages of twelve and

thirteen. B.B. stated that Defendant would spread open her labia and use his middle

finger to rub her clitoris. She recalled that this always occurred in his bedroom. It is

undisputed that, during this time period, Defendant had custodial authority over K.B. and

B.B. This evidence is sufficient to support Defendant’s convictions for two counts of

rape.

4. Sexual Battery by an Authority Figure

Finally, Defendant was convicted of two counts of sexual battery by an authority

figure. As relevant to this case, sexual battery by an authority figure is unlawful sexual

contact with a victim by the defendant or the defendant by a victim when the victim was

thirteen years of age or older but less than eighteen years of age at the time of the offense,

and the defendant had parental or custodial authority over the victim at the time of the

offense and used the authority to accomplish the sexual contact. Tenn. Code Ann. §§ 39-

13-527(a)(1), (a)(3)(B) (2011).

In this case, K.B. testified that Defendant touched her breasts between the ages of

thirteen and fourteen almost twice a week until she moved out of Defendant’s home.

Additionally, B.B. testified that, between the ages of thirteen and fourteen, Defendant

touched her breasts on more than one occasion. B.B. stated that the touching occurred in

Defendant’s bedroom. Moreover, Defendant had custodial authority over the victims at

the time of the offenses, and he used the authority to accomplish the sexual contact. The

evidence is sufficient to support Defendant’s convictions for two counts of sexual battery

by an authority figure.

Defendant’s arguments relating to the sufficiency of the evidence ultimately

challenge the credibility of the victims. However, the credibility of witnesses, the weight

of their testimony, and the reconciliation of conflicts in the evidence are matters entrusted

exclusively to the jury as the trier of fact. State v. Evans, 108 S.W.3d 231, 237 (Tenn.

2003). By its verdict, the jury clearly accredited the victims’ testimony over that of

Defendant and his witnesses, and this court will not reevaluate the evidence.

Defendant argues that the rule of cancellation applies “as a matter of law” to

K.B.’s testimony, and accordingly, her testimony should be disregarded. In State v.

Matthews, this court recognized that “contradictory [sworn] statements by a witness in

connection with the same fact cancel each other.” 888 S.W.2d 446, 449 (Tenn. Crim.

App. 1993) (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn. Ct.

- 33 -

App. 1978)). The rule of cancellation applies only when inconsistency in a witness’s

testimony is unexplained and when neither version of the witness’s testimony is

corroborated by other evidence. Id. at 450 (citing Taylor, 573 S.W.2d at 483). A

witness’s testimony will only be disregarded if it “is not of a cogent and conclusive

nature, and if it is so indefinite, contradictory or unreliable that it would be unsafe to rest

a conviction thereon.” Letner v. State, 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974)

(internal quotation marks omitted). There is nothing about K.B.’s testimony that is so

unreliable as to justify its exclusion; moreover, her testimony is corroborated in large part

by B.B.’s testimony. Defendant is not entitled to relief on this claim.

B. Ineffective Assistance of Counsel

In the next section of his brief, Defendant asserts that he was denied the effective

assistance of counsel.2 Defendant argues that trial counsel’s performance was deficient

for asserting in his opening statement that the allegations of sexual abuse were devised by

the victims’ mother to regain custody, when in fact the victims had no contact with their

mother until after they disclosed the sexual abuse. Defendant contends that trial

counsel’s opening statement promised an “unprovable defense” and asserts that trial

counsel’s deficiencies “individually and collectively deprived [Defendant] of a fair trial.”

The State responds that the victims had occasional contact with their mother prior

to returning to her custody. Moreover, the State notes that trial counsel presented various

defense theories and did not proceed solely on this theory. The State contends that the

jury was presented with “ample evidence” regarding the victims’ alleged motives to lie

but that, ultimately, the victims provided detailed testimony regarding the abuse, which

was “supported by visible bruises on K.B. from the beating that led to the disclosure of

the other forms of abuse.” The State argues, therefore, that Defendant has failed to

establish that trial counsel’s representation fell below an objective standard of

reasonableness or that the outcome of the proceedings would have been different if

counsel had not made this argument.

In order to prevail on a post-conviction claim, a petitioner must prove all factual

allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 830 (Tenn.

2003). Post-conviction relief cases often present mixed questions of law and fact. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by the

post-conviction court’s factual findings unless the evidence preponderates against such

2

Defendant articulates one specific ground in support of the claim in this section of his brief and

argues additional grounds in other sections. Accordingly, we will address the additional grounds

supporting Defendant’s claim of ineffective assistance of counsel in other sections of this opinion.

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findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing the

post-conviction court’s factual findings, this court does not reweigh the evidence or

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,

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

their testimony, and the factual issues raised by the evidence are to be resolved by the

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);

see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and

application of the law to factual findings are reviewed de novo with no presumption of

correctness. Kendrick, 454 S.W.3d at 457.

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee

cases). Both factors must be proven in order for the court to grant post-conviction relief.

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of

counsel’s performance “requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

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of the Strickland analysis, the petitioner “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

We first note that the practice of raising ineffective assistance of counsel claims on

direct appeal is “fraught with peril” since it “is virtually impossible to demonstrate

prejudice as required” absent an evidentiary hearing. Blackmon v. State, 78 S.W.3d 322,

328 (Tenn. Crim. App. Nov. 16, 2001). Ineffective assistance can rarely be established

without an evidentiary hearing, and if a defendant raises the issue on direct appeal, it may

result in the defendant losing the appeal and also in barring him from raising the issue in

post-conviction proceedings. State v. Leroy Sexton, No. M2004-03076-CCA-R3-CD,

2007 WL 92352, at *3 (Tenn. Crim. App. Jan. 12, 2007), perm. app. denied (Tenn. May

14, 2007). Instead, “ineffective assistance of counsel claims should normally be raised

by petition for post-conviction relief.” State v. Derenzy Turner and Vernon West, No.

02C01-9512-CR-00390, 1997 WL 312530, at *11 (Tenn. Crim. App. July 11, 1997),

perm. app. denied (Tenn. Feb. 23, 1998). However, in this case, Defendant presented

proof of his claims at the motion for new trial hearing with the assistance of counsel. As

such, we will conduct a thorough review of his numerous claims of ineffective assistance

of counsel.

In denying relief on this first claim, the trial court found that, throughout pretrial

motion hearings and during his testimony at the motion for new trial, trial counsel “made

clear the defense in this case was the [victims] were lying about the allegations.” The

trial court found that trial counsel “asserted multiple theories throughout the trial” as to

why the victims would fabricate the allegations. The trial court determined that

Defendant failed to establish deficient performance or resulting prejudice because trial

counsel “consistently argued at trial the [victims] were lying about the allegations

because they wanted to live with their mother.”

We agree with the trial court that Defendant is not entitled to relief based on this

claim of ineffective assistance of counsel. At the motion for new trial hearing, trial

counsel acknowledged that he missed the March 16, 2012, report from Ms. Donnell

during his preparation of his timeline prior to trial. Consequently, trial counsel asserted

during opening statement that the defense intended to show that, prior to K.B.’s initial

allegation of sexual abuse, the victims’ mother “swoop[ed] in” and questioned K.B. about

whether she had been sexually abused by Defendant, thereby potentially coaching the

victims to make the sexual abuse allegations. However, trial counsel testified that the

defense’s “central theme was [the victims’] motive [that] they wanted to go live with

their mother . . . and, therefore, made the false allegations.” In his opening statement,

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trial counsel asserted that K.B. and B.B. had various motives to fabricate the allegations

of sexual abuse. Trial counsel stated that K.B. and B.B. “always wanted to go back and

live with their mother.” He said that the defendants were “very strict” but that the

victims’ mother “let them do pretty much whatever they wanted.” Moreover, he asserted

that K.B. was angry about the whipping she received from Defendant and that she made

up the allegations to “get even” with Defendant and Co-Defendant Robinson. Trial

counsel noted that there was no physical evidence to support the claims of sexual abuse,

no confession, and no witnesses who “ever saw inappropriate behavior” by the

defendants. Trial counsel continued, “The evidence is simply the allegation of two

individuals . . . and I believe you’ll see much of their statements will be inconsistent, and

the whole story is simply not credible.”

Although the proof at trial showed that K.B. had not spoken to her mother for

some time prior to her allegation of sexual abuse, B.B. stated that she had spoken to her

mother before disclosing to DCS that she had been sexually abused by Defendant.

Moreover, trial counsel was able to establish that the victims had a motive to lie. On

cross-examination, K.B. agreed that she was angry at Defendant after he whipped her

with the belt. She also acknowledged that she always wanted to go live with her mother;

she stated that Defendant and Co-Defendant Robinson were strict, would not let her date,

and would not let her on Facebook and that her mother was more lenient. Likewise, B.B.

acknowledged that her mother was less strict than Defendant and Co-Defendant

Robinson. She said that, after returning to live with her mother, she was able to have a

cell phone, date freely, and she stopped going to school. Trial counsel was also able to

point out inconsistencies in the victims’ testimony during cross-examination.

Defendant cites State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991), to

support his claim that trial counsel was ineffective. In Zimmerman, defense counsel

brought on co-counsel two days prior to trial. Id. at 221. Co-counsel announced during

opening statement that the defendant, who was accused of stabbing her husband to death,

would testify and that a psychologist who had treated the defendant would explain the

“battered wife syndrome.” Id. at 221-22. The defendant and witness were scheduled to

testify. Id. at 221. However, when the State rested, counsel recommended to the

defendant that she not testify, against the advice of co-counsel. Id. at 222. The defendant

decided not to testify, and neither the psychologist nor the other defense witnesses were

called to testify. Id. Additionally, counsel forgot to introduce into evidence a stipulation

that the victim’s blood alcohol level was .11 percent. Id. at 225. On appeal, this court

held that nothing had changed following the opening statement to cause a sudden change

in defense strategy. Id. at 226. The court explained that this factor alone did not

constitute ineffective assistance of counsel but that, taken cumulatively with other errors,

namely the failure to call any defense witnesses to testify and counsel’s recommendation

to the defendant that she not testify, the defendant was entitled to a new trial. The court

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concluded, “It may be that none of these three areas of deficient performance, standing

alone, would have justified the grant of a new trial. Yet, we think that the cumulative

effect of these errors deprived the defendant of a meaningful defense.” Id. at 228.

Unlike Zimmerman, trial counsel in this case presented numerous defense

witnesses, and Defendant testified. Trial counsel presented multiple theories of defense,

supported by the evidence, to establish a motive for the victims to fabricate the sexual

abuse allegations. Additionally, trial counsel elicited testimony from B.B. that she had

spoken to her mother about the sexual abuse before making the allegation of sexual abuse

to DCS; thus, there was at least some basis in the evidence for trial counsel’s argument

that the victims’ mother may have had some influence on the victims’ allegations.

Another important distinction from Zimmerman is that the jury in this case had the

opportunity to hear directly from Defendant; he did not rely solely on trial counsel to

speak for him. We note, however, that Defendant’s testimony was contradicted by Co-

Defendant Robinson on several key points. Defendant testified that, when he whipped

fourteen-year-old K.B., she was wearing underwear. Co-Defendant Robinson, however,

testified that K.B.’s pants and underwear were removed before Defendant bent her over

and whipped her. Defendant stated that, when the victims would get out of the shower,

he could still “smell . . . their vaginas through their clothes,” and he would make them get

back into the shower. However, Co-Defendant Robinson testified that Defendant never

expressed any concerns about the victims’ vaginal cleanliness to her. Co-Defendant

Robinson claimed that Defendant was never left alone with the victims and that she was

always with them, but Defendant admitted that he was home with the victims when Co-

Defendant Robinson was not there.

Under these circumstances, we conclude that Defendant has failed to establish a

reasonable probability that, but for trial counsel’s assertion during opening statement that

the victims’ mother encouraged them to falsify the allegations against Defendant, the

results of the proceeding would have been different. Strickland, 466 U.S. at 694.

Defendant is not entitled to relief based on this claim.

C. Failing to Ensure that Trial Counsel was Physically Able to Proceed

Defendant contends that trial counsel was “clearly ill” at the start of trial and that

the trial court abused its discretion by failing to ensure trial counsel was physically able

to proceed. Defendant additionally contends that trial counsel rendered deficient

performance by failing to ask for a continuance and that he was prejudiced by trial

counsel being “too ill to satisfy his professional duties[.]”

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The State responds that Defendant’s claim that the trial court erred in failing to

ensure that trial counsel was physically able to proceed with trial is waived because trial

counsel did not request a continuance. The State additionally responds that Defendant

has not established ineffective assistance based on trial counsel’s failure to request a

continuance, noting that trial counsel testified at the motion for new trial hearing that, if

he had felt like he could not handle the trial, he “certainly” would have asked for a

continuance. Moreover, trial counsel said that he was no longer suffering from nausea by

the beginning of the trial and that he was “certainly able to function.”

We agree with the State that because Defendant failed to request a trial

continuance, Defendant has waived the issue that the trial court erred by not continuing

his trial. See Tenn. R. App. P. 36(a). The Tennessee Rules of Appellate Procedure

provide that, on appeal, “[n]othing . . . shall be construed as requiring relief [to] be

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

reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R. App.

P. 36(a). This rule “is a statement of the accepted principle that a party is not entitled to

relief if the party invited error, waived an error, or failed to take whatever steps were

reasonably available to cure an error.” Tenn. R. App. P. 36, Advisory Comm’n Cmts.

Moreover, Defendant has failed to establish ineffective assistance of counsel based

on trial counsel’s failure to request a continuance due to illness. At the motion for new

trial hearing, trial counsel testified that he felt “very sick” on the Saturday before trial,

and he contemplated requesting a continuance of Defendant’s trial that was scheduled to

begin on Monday. Trial counsel testified, however, that on Sunday, he believed he would

be able to proceed with the trial as scheduled if he rested that day, and he noted that he

had prepared the case for trial multiple times. Trial counsel explained that he had been

Defendant’s counsel for approximately four years by the time of trial, and over the course

of his representation, he had filed multiple pretrial motions, conducted several pretrial

hearings, and served as counsel on the first trial on Counts 1 and 2. Trial counsel

testified that he brought up his illness to the jury to explain why his voice might be raspy,

but he said that he was physically able to proceed to trial and that he would have

requested a continuance had he felt otherwise. Because trial counsel felt well enough to

proceed with the trial, his failure to request a continuance was not deficient performance.

Moreover, based on his testimony at the motion for new trial hearing, trial counsel would

have told the trial court that he felt well enough for trial if the court had questioned trial

counsel about his ability to proceed. Thus, Defendant is not entitled to relief based on

this claim.

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D. Failure to Remedy Statements Made During Voir Dire by a Potential Juror

Defendant contends that the trial court erred by not “striking the venire, declaring

a mistrial, or providing a better limiting instruction” after Mr. Sparks stated during voir

dire that “only guilty people get indicted.” Defendant acknowledges that the trial court

properly excluded Mr. Sparks and provided an instruction to the remaining jurors as

requested by trial counsel. However, Defendant argues that the trial court should have

“told (or asked if [the potential jurors] understood) the different standard of proof

considered by grand juries.” He further contends that trial counsel rendered ineffective

assistance of counsel based upon his failure to request a mistrial or order “a new venire.”

The State responds that because Defendant did not request a “better limiting

instruction,” a mistrial, or that the trial court strike the venire, Defendant has waived

consideration of this claim. The State argues that, waiver notwithstanding, the trial court

issued an appropriate curative instruction and that Defendant has not shown any prejudice

as a result of Mr. Sparks’ comment. Regarding the claim of ineffective assistance of

counsel, the State responds that trial counsel requested that the court instruct the jury that

Mr. Sparks’ statement was false and to explain that grand juries do not hear all the

evidence. Additionally, trial counsel testified that it was a strategic decision not to strike

the venire because he believed the venire was favorable for the defense based upon the

answers during voir dire.

We agree that Defendant waived consideration of this issue by failing to “take

whatever action was reasonably available to prevent or nullify the harmful effect of an

error.” Tenn. R. App. P. 36(a). Defendant did not request an instruction regarding the

standard of proof for grand juries nor did he request a mistrial or that the trial court strike

the venire—all of which he could have done. Accordingly, he has waived our

consideration of his claim that the trial court erred when it failed to strike the venire,

declare a mistrial, or provide a better curative instruction.

However, “when necessary to do substantial justice,” this court may “consider an

error that has affected the substantial rights of a party” even if the issue was waived.

Tenn. R. App. P. 36(b). Such issues are reviewed under plain error analysis. State v.

Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). Plain error relief is “limited to errors that

had an unfair prejudicial impact which undermined the fundamental fairness of the trial.”

State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994). In order to be granted

relief under plain error relief, five criteria must be met: (1) the record must clearly

establish what occurred in the trial court; (2) a clear and unequivocal rule of law must

have been breached; (3) a substantial right of the accused must have been adversely

affected; (4) the accused did not waive the issue for tactical reasons; and (5)

consideration of the error is “necessary to do substantial justice.” Id. at 640-41; see also

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State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (Tennessee Supreme Court formally

adopting the Adkisson standard for plain error relief). When it is clear from the record

that at least one of the factors cannot be established, this court need not consider the

remaining factors. Smith, 24 S.W.3d at 283. The defendant bears the burden of

persuasion to show that he is entitled to plain error relief. State v. Bledsoe, 226 S.W.3d

349, 355 (Tenn. 2007).

Defendant has not demonstrated that he is entitled to plain error relief. A mistrial

should be declared in a criminal trial only in the event of a “manifest necessity” that

requires such action. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). “The purpose for

declaring a mistrial is to correct damage done to the judicial process when some event

has occurred which precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385,

388 (Tenn. Crim. App. 1996). The determination of whether to grant a mistrial rests

within the sound discretion of the trial court, State v. Smith, 871 S.W.2d 667, 672 (Tenn.

1994), and the reviewing court should not overturn that decision absent an abuse of

discretion. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002). Moreover, the burden of

establishing the necessity for a mistrial lies with the party seeking it. Williams, 929

S.W.2d at 388.

The trial court excluded Mr. Sparks and instructed the venire as requested by

Defendant, as follows:

Just so it will benefit the others, a grand jury does not hear all of the

evidence and oftentimes they don’t even hear from the alleged victim.

They just hear some summary of the things. But I just want to make sure

everybody else can provide [Defendant] with the presumption of innocence.

Can you do that? Because . . . he only has to be here, and that’s it. The

State has to prove him guilty. He doesn’t have to do anything. [Trial

counsel] doesn’t have to do anything. He doesn’t even have to ask any

questions. I suspect he will, but he doesn’t have to. All the burden is on

the State. Can everybody accept that principle of law?

The venire then agreed that they presumed Defendant’s innocence, and they

acknowledged that the burden was on the State to prove Defendant’s guilt at trial. The

jury is presumed to have followed the trial court’s curative instruction. Hall, 976 S.W.2d

at 148. Thus, Defendant has not shown a manifest necessity for a mistrial. Moreover,

trial counsel testified that it was a tactical decision not to request any relief other than a

curative instruction because he was happy with the venire. Defendant has not established

that a clear and unequivocal rule of law was breached or that his waiver of the issue was

not a tactical decision. He is not entitled to plain error relief. See Adkisson, 899 S.W.2d

at 640-41.

- 41 -

Likewise, Defendant is not entitled to relief based on his claim that trial counsel

rendered ineffective assistance of counsel by failing to request that the trial court declare

a mistrial, strike the venire, or provide a different curative instruction. Trial counsel

testified that it was a strategic decision not to request a mistrial when Mr. Sparks made

the statement about the grand jury. He explained that the answers he was receiving from

jurors on the panel were “exceptionally good,” and he thought, “I love this panel.” He

stated that he did not want to get rid of the venire because he liked their answers to his

questions. Trial counsel agreed that he asked for a curative instruction from the trial

court but said that, upon further consideration, he should have asked the trial court to

explain the burden of proof for the return of an indictment. However, this court must

review trial counsel’s performance without the “distorting effects of hindsight.”

Strickland, 466 U.S. at 689. Moreover, we will not second-guess a reasonable trial

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson, 197 S.W.3d at 790. Trial counsel acknowledged that both

sides discussed the State’s burden of proof during voir dire; additionally, the trial court

properly instructed the jury that Defendant was presumed innocent of the charges against

him and that it was the State’s burden to prove his guilt beyond a reasonable doubt.

Defendant has failed to establish deficient performance or any resulting prejudice. This

issue is without merit.

E. Cumulative Testimony During Defendant’s Cross-Examination

Defendant further asserts that the trial court erred in allowing cumulative

testimony during his cross-examination, in violation of Tennessee Rule of Evidence 403.

He argues that, over defense objection, the State was permitted “to essentially repeat its

entire case by asking [Defendant] during cross-examination whether he was ‘aware of’ or

‘remember[ed]’ virtually every accusation being made.” Defendant asserts that the

State’s cross-examination allowed it to “backdoor” prior consistent statements that were

inadmissible under Tennessee Rule of Evidence 613.

The State responds the trial court did not abuse its discretion by permitting the

State to exercise its right to effectively cross-examine Defendant. The State argues that it

was entitled to cross-examine Defendant about every charged instance of abuse and about

whether Defendant denied each incident. The State further argues that it was tasked with

establishing each count beyond a reasonable doubt and that asking Defendant if he denied

every allegation was certainly relevant.

In denying relief on this issue, the trial court found that the prosecutor’s questions

fell within appropriate parameters for cross-examination. Rule 611 of the Tennessee

Rules of Evidence provides that “[a] witness may be cross-examined on any matter

relevant to any issue in the case, including credibility[.]” Tenn. R. Evid. 611(b). “Trial

- 42 -

judges are empowered with great discretion regarding the trial process, including the

scope of cross-examination.” Williams, 929 S.W.2d at 389. The trial court’s discretion

will not be disturbed unless an abuse of discretion is found. Id.

On direct examination, Defendant made a blanket denial of having touched the

victims inappropriately. The only offense that Defendant discussed in detail was the

charge relating to his whipping K.B., and he had already been tried on that charge. We

agree with the State that the prosecutor was entitled to cross-examine Defendant about

every charged instance of abuse as the State was required to establish each count beyond

a reasonable doubt. The prosecutor’s questions to Defendant were relevant, and by

testifying, he opened himself up to cross-examination about each charged offense. We

note that, while being questioned by the prosecutor, Defendant was given the chance to

reaffirm his claim that the victims were lying. Further, we note that the prosecutor’s

questions were not evidence and that the trial court instructed the jury as such. The

prosecutor’s line of questioning was relevant and appropriate, and the trial court did not

abuse its discretion in allowing the questions.

Defendant contends that “the questioning was also an improper attempt to

introduce prior consistent statements[,]” citing State v. Herron, 461 S.W.3d 890 (Tenn.

2015). In Herron, our supreme court concluded that playing a recorded forensic

interview during the victim’s direct examination, which was consistent with her trial

testimony, before defense counsel cross-examined the victim or mounted any attack on

the victim’s credibility was error. Id. at 905. The supreme court noted one exception to

the general rule against the admission of a prior consistent statement permits the

admission of prior consistent statements to rehabilitate a witness whose testimony is

attacked on cross-examination as a “recent fabrication” or “deliberate falsehood.” Id.

The instant case is clearly distinguishable from Herron. Defendant’s trial counsel

asserted in opening statement that the victims had multiple reasons to lie about the

allegations of sexual abuse, and he vigorously cross-examined both victims to attempt to

establish that they falsified the allegations. For his part, Defendant stated that the victims

were lying when they testified. In contrast, the trial court in Herron admitted the

recording of the victim’s forensic evaluation during her direct examination when no

question had been raised about her credibility, nor had it been alleged that she had lied.

The trial court did not abuse its discretion by permitting the prosecutor to cross-

examine Defendant about each charged offense. Defendant is not entitled to relief.

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F. Improper Leading Questions

Defendant asserts that the trial court erred in allowing the State to ask improper

leading questions to a witness, in violation of Rule 611(c) of the Tennessee Rules of

Evidence. He contends that the substance of the State’s leading questions was contrary to

the witness’s prior answers and that, by its questions, the State “planted evidence in the

[witness’s] testimony[.]”

The State responds that the trial court did not abuse its discretion in allowing the

State to effectively question the victims. The State argues that the trial court “properly

concluded that the State was entitled to some leeway in questioning the victim of

childhood sexual abuse. Furthermore, the State did not plant ideas in the victim’s

testimony; she testified consistently and the State properly elicited clarifications only.”

Trial courts are vested with the authority to supervise the presentation of evidence.

Tenn. R. Evid. 611(a). Tennessee Rule of Evidence 611(c)(1) provides in part, “Leading

questions should not be used on direct examination of a witness except as may be

necessary to develop the witness’s testimony.” It is well-established that a trial court

may permit leading questions to victims in child sexual abuse cases. See Swafford v.

State, 529 S.W.2d 748, 749 (Tenn. Crim. App. 1975); Neil P. Cohen et al., Tennessee

Law of Evidence § 6.11[7][b] (6th ed. 2005) (“Courts traditionally permit leading

questions to be asked on direct examination of a young or otherwise impaired witness.

Leading questions are also permissible in some courts for sexual assault victims.”); see

also State v. Craig Allen Lewis, No. 01C01-9307-CC-00232, 1995 WL 10509, at *7

(Tenn. Crim. App. Jan. 12, 1995); United States v. Rossbach, 701 F.2d 713 (8th Cir.

1983) (holding that leading questions were permissible on direct examination of fifteen

and seventeen-year-old victims hesitant to testify about sexual assault). “The propriety,

scope, manner and control of examination of witnesses is within the trial court’s

discretion and will not be interfered with in the absence of an abuse of discretion.” State

v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992) (citations omitted).

In his brief, Defendant cites the following passages from the trial transcript in

support of his claim:

[THE STATE]: Can you describe how he was touching your

breasts? You can either use your hands, or you can talk about it.

[K.B.]: Like how a boy will grab his girlfriend’s breasts and like

(indicating), like caress them like. I don’t -- I can’t describe it.

- 44 -

[THE STATE]: Okay. On that occasion did anything else happen

that you can remember?

[K.B.]: No. Can you like -- can you be more specific?

[THE STATE]: Were there any other details that you remember

from that occasion, or does that kind of summarize how it happened the

first time?

[K.B.]: Yeah, that summarized.

[THE STATE]: Okay. Now, did he touch your vagina on that date

or --

[TRIAL COUNSEL]: Judge, objection. Leading.

THE COURT: Overruled.

[TRIAL COUNSEL]: Judge, may we approach?

At the bench conference, the trial court stated, “A leading question would be isn’t

it true that he touched your vagina. Did he touch your vagina is not a leading question.”

Trial counsel responded, as follows:

[TRIAL COUNSEL]: Judge, I believe if . . . the witness has

answered nothing else has happened, then that sums it up. And then she

says, oh, by the way, did he also touch your vagina, that’s certainly leading

because she’s already answered it and then she’s --

THE COURT: That’s not leading. You get a little bit of leeway with

victims of sexual activity that happened a long time ago. I’m going to

allow that. But that was not a leading question.

Trial counsel again objected following this exchange:

[THE STATE]: Did he touch your vagina at that time or only your

breasts?

[K.B.]: Only my breasts.

- 45 -

[THE STATE]: Do you remember the next time he touched your

breasts?

[TRIAL COUNSEL]: Judge, objection. Leading.

THE COURT: Rephrase your question.

[THE STATE]: Do you remember the next time [Defendant]

touched you?

[K.B.]: Yes. But I was living at the other house.

....

[THE STATE]: Did any other times specifically -- like can you

remember the specifics about any other time that he touched you?

[K.B.]: No.

[THE STATE]: And why is that?

[K.B.]: Because I kind of don’t -- don’t want to talk about it and it’s

-- I didn’t think it was wrong at the time, so I don’t know. I don’t know.

[THE STATE]: Is it difficult for you to remember the specifics of

any other time?

[K.B.]: Yeah.

[THE STATE]: Okay. Did [Defendant] consistently touch your

breasts from the age of ten --

[TRIAL COUNSEL]: Judge, objection. Leading.

THE COURT: I’m going to overrule that one.

[THE STATE]: Did [Defendant] consistently touch your breasts

from the time -- you testified about the age of ten -- until the time you

moved out of the Robinson home at age fourteen?

[K.B.]: Yes.

- 46 -

In its order denying Defendant’s motion for new trial, the trial court found that

many of the questions to which trial counsel objected were not leading questions.

Moreover, the trial court determined that any questions that qualified as leading in nature

were properly allowed due to the age of the victim at the time of the offenses, the

significant passage of time from the date of the offenses to the date of the trial testimony,

the nature of the charged offenses, and the necessity to limit evidence relating to the

severed physical abuse charge. The trial court further noted that K.B. did not simply

limit her responses to a simple “yes” or “no” but that, after she agreed that encounters

occurred, she added further detail about the incidents from her own memory.

Here, the trial court did not abuse its discretion. We agree with the trial court that

some of the questions asked by the State were not leading questions and that, in other

instances, it was within the trial court’s discretion to allow the State some leeway to lead

the witness. Although she was nineteen years old by the time of trial, K.B. was a victim

of childhood sexual abuse and that abuse occurred frequently over the course of several

years. We reject Defendant’s contention that the State planted ideas into K.B.’s

testimony; the State’s questions helped to clarify her testimony concerning a subject that

she found difficult to discuss. See Craig Allen Lewis, 1995 WL 10509, at *7. The trial

court did not abuse its discretion in allowing the State to ask some leading questions of

K.B., and Defendant is not entitled to relief.

G. Admission of Evidence

Defendant contends that the trial court erred in admitting evidence of physical

abuse, a prior consistent statement by B.B., and evidence regarding the reason for DCS’s

removal of the children. The State responds that the trial court did not abuse its

discretion in the admission of evidence.

When a trial court makes an evidentiary ruling, the appropriate standard of review

on direct appeal is “whether the record clearly demonstrates that the trial court abused its

discretion” in ruling on the admissibility of the evidence. State v. McCaleb, 582 S.W.3d

179, 186 (Tenn. 2019) (citing Regions Bank v. Thomas, 532 S.W.3d 330, 336 (Tenn.

2017); State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015)). In McCaleb, our supreme court

explained:

We emphasize that the abuse of discretion standard of review does

not permit an appellate court to substitute its judgment for that of the trial

court. State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018). Rather,

“[b]ecause, by their very nature, discretionary decisions involve a choice

among acceptable alternatives, reviewing courts will not second-guess a

trial court’s exercise of its discretion simply because the trial court chose an

- 47 -

alternative that the appellate courts would not have chosen.” White v.

Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). Accordingly,

if the reviewing court determines that “reasonable minds can disagree with

the propriety of the decision,” the decision should be affirmed. Harbison,

539 S.W.3d at 159.

Id.

1. Evidence of Physical Abuse

Following a pretrial hearing, the trial court issued a written order regarding the

parameters for the admission of evidence of physical abuse, as follows:

[A]lthough the sexual abuse counts were severed from the other

charges, certain background information is necessary in the trial of the

sexual battery and rape counts, particularly since injuries resulted in the

police being called and disclosures made. The [c]ourt ruled, however, that

the parties could not use the word “abuse” at trial and needed to use other

terms such as “discipline”, “restriction”, or similar. Additionally, as

discussed at the September 6, 2016 hearing, some evidence concerning

[Co-Defendant Robinson] is necessary at trial in order to provide the jurors

context. While the jurors may have to assess the culpability of [Co-

Defendant] Robinson, the focus of the trial shall remain on [Defendant].

Defendant acknowledges that the trial court’s pretrial ruling that evidence of the

physical abuse was relevant to show the chain of events leading to K.B.’s initial physical

examination and her disclosure of sexual abuse was proper. He contends, however, that

the State exceeded the bounds of the trial court’s ruling by presenting unnecessary and

prejudicial evidence regarding K.B.’s injuries. Specifically, Defendant contends that the

State should not have been permitted to introduce photographs of K.B.’s bruises, K.B.’s

testimony regarding repeated strikes to her body and face, testimony that K.B.’s nose was

bleeding, and testimony that Defendant “commonly” whipped both K.B. and B.B.

Defendant contends that the State, the trial court, and trial counsel “all bear some

responsibility” for this error. He asserts that the State committed prosecutorial

misconduct by “flagrantly” going above the limitations imposed by the trial court; that

the trial court erred by not directing the State to cease introducing the evidence; and that

trial counsel rendered ineffective assistance of counsel by failing to object to the State’s

questions at trial. We will address each claim in turn.

- 48 -

a. Prosecutorial Misconduct

Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965), sets out the test to be

applied by appellate courts in reviewing instances of improper prosecutorial conduct, i.e.,

“whether the improper conduct could have affected the verdict to the prejudice of the

defendant.” In measuring the prejudicial impact of any misconduct, this court should

consider: (1) the facts and circumstances of the case; (2) any curative measures

undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the

cumulative effect of the improper conduct and any other errors in the record; and (5) the

relative strength or weakness of the case. State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim.

App. 2003) (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); State v.

Buck, 670 S.W.2d 600, 609 (Tenn. 1984)).

In denying relief on this claim following the motion for new trial hearing, the trial

court found that the State abided by its order and that the admission of evidence

regarding the whipping was proper. Upon review, we agree with the trial court that the

State did not commit any impropriety. The trial court’s order advised the State not to

dwell on the physical abuse in terms of how extensive it was, and the evidence offered by

the State fell within the court’s parameters. The trial court’s order did not prohibit the

State from presenting evidence that K.B. suffered physical injuries; rather, the order

specifically noted that there were injuries to K.B. that resulted in the police being called

and provided that this evidence was admissible to provide context for the disclosure of

the sexual abuse allegations. Thus, the evidence offered by the State about injuries K.B.

suffered from the whipping was not improper, and Defendant is not entitled to relief

based on a claim of prosecutorial misconduct.

b. Trial Court’s Failure to Limit the State’s Evidence

Defendant asserts that the trial court erred in not directing the State to cease

introducing this evidence. However, because trial counsel failed to raise

contemporaneous objections to the evidence that Defendant now asserts fell outside the

trial court’s order, Defendant waived this issue. State v. Gilley, 297 S.W.3d 739, 762

(Tenn. Crim. App. 2008) (“The failure to make a contemporaneous objection constitutes

waiver of the issue on appeal.”) In any event, although a trial court has the discretion to

sua sponte limit irrelevant testimony, State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim.

App. 1996), the trial court did not do so in this case because it concluded the State abided

by its pretrial order. Defendant has not clearly shown that the trial court abused its

discretion in admitting the evidence.

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c. Ineffective Assistance of Counsel

Finally, Defendant argues that trial counsel rendered ineffective assistance of

counsel based upon his failure to object when the prosecutor began to exceed the trial

court’s order. At the hearing on the motion for new trial, trial counsel testified regarding

this issue that “[i]t was a pretty fine line we were trying to walk because there was an

agreement that, all right, some of it was fair game because of the whole motive issue[,]”

referring to the defense theory that the victims were motivated to make up the allegations

of sexual abuse because “they were getting beatings.” Trial counsel understood that the

trial court was going to allow some of the evidence about the whipping, but he stated that,

in his opinion, it “got way farther into that than what should have been allowed.” As

explained above, however, the State’s evidence was not outside the bounds of the trial

court’s order, and the trial court acted within its discretion in admitting the proof.

Therefore, Defendant has not established deficient performance or resulting prejudice

under Strickland, and his claim of ineffective assistance of counsel fails.

2. Testimony of Ms. Howlett About Her Interview with B.B.

During trial counsel’s cross-examination of B.B., the following exchange

occurred:

[TRIAL COUNSEL]: I think it’s clear from your testimony a little

while ago with the prosecutor, but first you said you were not sexually

assaulted. You’ve made no mention of any sexual abuse when you were

interviewed and first asked about it, correct?

[B.B.]: Can you say that again?

[TRIAL COUNSEL]: When you were first interviewed by the

forensic interviewer after you left the [defendants], you made no mention of

being sexually abused, correct?

[B.B.]: No.

[TRIAL COUNSEL]: All right. Then you went to live with your

mother --

THE COURT: Let’s clear up about the answer. Are you saying no

you didn’t say it or -- you need to be clear by what you mean by no.

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[B.B.]: No, I wasn’t talking about it. Like can you say it one more

time because you’re confusing me.

[TRIAL COUNSEL]: Sure. Is it true that you did not -- when you

gave your forensic interview, you did not accuse [Defendant] or [Co-

Defendant Robinson] of any sexual abuse?

[B.B.]: Yes.

[TRIAL COUNSEL]: You did not?

[B.B.]: I didn’t talk about it, yes.

....

[TRIAL COUNSEL]: So after that, you go and live with your

mother, you talk to your mother. And it’s after that that you make an

allegation of sexual abuse, correct?

[B.B.]: I didn’t talk to my mom. She read the papers. She read it.

[TRIAL COUNSEL]: You --

[B.B.]: And when Ms. [Leeman] came, the DCS worker, is when I

really started opening up about it.

....

[TRIAL COUNSEL]: You spoke to your mother about [Defendant]

sexually abusing you before you made the allegation to DCS, correct?

[B.B.]: Yes.

At a bench conference before the State’s redirect, the prosecutor stated:

My recollection is she did give Our Kids the information about the

touching prior to talking to her mom. Now, [trial counsel’s] made it look

like that . . . came after she talked to her mom. So I think I should be able

to get into what she told Our Kids.

In response, the trial court stated:

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Well, [B.B.’s] the one that said that she talked to her mom first

before she talked to Our Kids. So[,] I’m not sure she’s the one you need to

ask about it. She’s already answered it. I mean, if you’re trying to

establish she did that before she talked to . . . her mom, then I’m not sure

she’s the one you need to ask that. But you don’t know when she talked to

her mom. You’ll have to establish that.

On redirect examination, this exchange occurred:

[THE STATE]: . . . [W]ell, let’s talk about the forensic interview.

When you were asked if you were touched inappropriately, you were

fourteen-years old?

[B.B.]: Yes, sir.

[THE STATE]: Is that right?

[B.B.]: Yes, sir.

[THE STATE]: And what you said at that time was no?

[B.B.]: Yes, sir.

[THE STATE]: And the reason for that was?

[B.B.]: Because I was scared. I didn’t know who I was going back

with at that time. I didn’t know I was going back with my mom. If I did

know I was going back, I would have talked like I am now.

....

[THE STATE]: At what point did you realize that the touching may

have been wrong?

[B.B.]: When they had sent the packet through the mail with us

talking to the lady, and my mama had broke down crying and she had asked

[K.B.] about the tampon and --

[THE STATE]: Let me stop you right there. So when your mother .

. . learned about this, you had already talked to Our Kids?

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[B.B.]: Yes sir.

[THE STATE]: Okay. And you had told them during that time

about the touching?

[B.B.]: Is Our Kids the same thing as -- is that the video?

[THE STATE]: No, that’s a different -- June 26th is when they --

when you spoke with them.

[B.B.]: Uh-huh.

[THE STATE]: 2012. Do you remember that?

[B.B.]: Yes.

[THE STATE]: Do you remember speaking to a lady named Ms.

Howlett . . . ?

[B.B.]: Yes.

[THE STATE]: Okay. And did you tell [Ms. Howlett] about these

touchings with [Defendant]?

[B.B.]: Yes, sir.

[THE STATE]: Okay. And when you spoke to her, did you tell her

that you would get out of the shower and that [Defendant] touched you on

the vagina?

[B.B.]: Yes, sir.

The State then continued to question B.B. about the various allegations of sexual

abuse and whether she told Ms. Howlett about them; B.B. agreed that she did. The trial

court then instructed the jury, “Ladies and gentlemen, you’ve heard there may have been

statements made at a prior time that were considered more consistent with [B.B.’s]

testimony. You may only consider that as it relates to her credibility.”

The State later called Ms. Howlett to testify. During her testimony, the following

colloquy occurred regarding her June 26, 2012, interview with B.B.:

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[THE STATE]: Okay. And did you have a conversation with [B.B.]

about [Defendant]?

[MS. HOWLETT]: Yes, I did.

[THE STATE]: Okay. Can you, please, tell us about that

conversation[?]

[TRIAL COUNSEL]: Judge, I’m going to object.

THE COURT: Approach the bench.

THE COURT: What is your objection?

[TRIAL COUNSEL]: Two grounds. First of all, it’s a prior

consistent statement meant [to] bolster credibility. This exam is . . . June

26th of 2012, well after the time that [the victims’ mother] had contact with

the kids. So I don’t think it comes in as a prior consistent statement under

the theory previously discussed by the State.

Secondly this is becoming so cumulative that it’s ridiculous.

....

THE COURT: It’s a different child. So . . . if I recall, you asked her

questions about what she said to her. As I recall, did you not? Because she

first said no, didn’t have any involvement, correct?

[TRIAL COUNSEL]: I don’t believe I asked [B.B.] about --

THE COURT: Yes, you did.

[TRIAL COUNSEL]: -- what she told Our Kids.

THE COURT: You made a point of pointing out that she did not

originally tell them.

[TRIAL COUNSEL]: No, that was DCS.

THE COURT: You said no at the forensic interview.

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[TRIAL COUNSEL]: Right. This is not the forensic interview.

THE COURT: Yes, it is.

The State then argued:

I mean, they’re statements for the purpose of medical diagnosis and

treatment. It’s absolutely -- the defense theory in this case is that this is all

made up to go back and live with [the victims’ mother]. The fact that she’s

saying this after, when she’s already living with [her mother] and there’s no

difficulty, there’s no fear of going to live back with the [defendants], again,

shows her credibility.

The trial court overruled trial counsel’s objection and allowed Ms. Howlett to testify

about the allegations of sexual abuse made by B.B.

a. Prior Consistent Statement and Cumulative Evidence

Defendant contends that the trial court erred in allowing Ms. Howlett to testify

about prior consistent statements made by B.B. during her forensic interview. He asserts

that Ms. Howlett’s testimony was a prior consistent statement used to improperly bolster

B.B.’s testimony and that it was cumulative to other testimony. The State responds that

the trial court did not abuse its discretion in permitting the State to rehabilitate B.B. after

her credibility was called into question.

As a general rule, evidence of a witness’s prior consistent statements may not be

used to rehabilitate the testimony of an impeached witness. State v. Braggs, 604 S.W.2d

883, 885 (Tenn. Crim. App. 1980). However, if a witness has been impeached on the

ground that his or her trial testimony was a recent fabrication or resulted from an

apparent motive to lie, evidence of the witness’s prior consistent statement is admissible

to rebut the inference the that witness’s testimony on direct examination was “the result

of recent fabrication.” State v. Carpenter, 773 S.W.2d 1, 11 (Tenn. Crim. App. 1989).

Before prior consistent statements may be admissible, the witness’s testimony must have

been assailed or attacked to the extent that the witness’s testimony needs rehabilitating.

State v. Benton, 759 S.W.2d 427, 434 (Tenn. Crim. App. 1988). Moreover, “[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.

- 55 -

In this case, the defense strategy was to assert that the victims were lying and to

establish their motives for doing so. To this end, trial counsel repeatedly asked B.B.

during cross-examination whether she ever disclosed the allegations of sexual abuse

before having contact with her mother. Trial counsel’s questions to B.B. implied that she

made the allegations of sexual abuse at the suggestion of her mother in order to be

assured that she could live with her mother. In response to trial counsel’s questions, B.B.

agreed that she did not tell anyone about the sexual abuse until after she had contact with

her mother. However, on redirect, the State elicited testimony from B.B. that she did not

talk to her mother about the sexual abuse allegations until after her interview with Ms.

Howlett at Our Kids.

Thus, it appears that B.B.’s interview with Ms. Howlett occurred after she had

contact with her mother but before she discussed any allegations of sexual abuse against

Defendant with her mother. Under these circumstances, we conclude that the record does

not clearly demonstrate that the trial court abused its discretion in allowing Ms. Howlett

to testify about B.B.’s statements in the forensic interview. See McCaleb, 582 S.W.3d at

186. B.B.’s credibility was attacked on cross-examination based on questions that

implied she made the allegations of sexual abuse against Defendant at the suggestion of

her mother. Evidence of B.B.’s prior consistent statement to Ms. Howlett—made before

B.B. discussed Defendant’s sexual abuse with her mother—could be admissible to rebut

the inference that allegations came from the victims’ mother. In our view, reasonable

minds can disagree about the propriety of the trial court’s decision; accordingly,

Defendant’s is not entitled to relief. Id.

b. Ineffective Assistance of Counsel

Defendant argues in the alternative that trial counsel was ineffective for failing to

clearly establish the sequence of B.B.’s interviews. However, from a review of the

record, it is clear that the confusion during B.B.’s testimony cannot be blamed solely on

trial counsel. In any event, Defendant has not established a reasonable probability that,

but for trial counsel’s failure to clearly establish the sequence of B.B.’s interviews, the

results of the proceedings would have been different. Strickland, 466 U.S. at 694.

Defendant is not entitled to relief based on this claim.

3. Evidence Regarding the DCS Removal

At trial, Defendant called Ms. Leeman, a DCS caseworker, to testify. During

direct examination, trial counsel elicited testimony from Ms. Leeman about the victims

and their siblings being removed from Defendant’s home after the initial allegation of

physical abuse was made. She explained that they were placed with Ms. Dillard, how

long the placement lasted, why they were removed from Ms. Dillard’s home, and whether

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the victims’ mother requested assistance with obtaining benefits upon receiving custody

of the children. On cross-examination of Ms. Leeman, the State elicited testimony that

the victims and their siblings were removed from Defendant’s home. When the State

asked “how that decision was made[,]” trial counsel objected on the grounds of

relevance. The trial court overruled the objection but instructed the State not to “get too

far in the weeds on that.” Ms. Leeman explained that she interviewed “all of the children

and any collaterals,” reviewed “the investigation,” and then discussed and decided what

to do with her supervisor. Ms. Leeman agreed that “after conducting an investigation a

decision was made to remove them from [Defendant’s] home.”

Defendant asserts that the testimony elicited from Ms. Leeman by the State had no

probative value and was prejudicial “because it effectively allowed the State to present

evidence that an investigation by DCS concluded [Defendant] was a danger to the

[victims].” Defendant further asserts that the jury “likely treated Ms. Leeman as an

‘expert witness’ for practical purposes in child abuse investigations” and that the jury

“would have given great weight to her conclusions that . . . the alleged victims were

credible and . . . [Defendant] committed sexual assault.”

“Relevant evidence” is defined as “evidence having 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.

The Tennessee Rules of Evidence make “all relevant evidence” admissible. See Tenn. R.

Evid. 402. As stated previously, Rule 403 of the Tennessee Rules of Evidence states that,

even if evidence is relevant, it “may be excluded if its probative value is substantially

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

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

cumulative evidence.” Tenn. R. Evid. 403.

Here, Defendant had already asked Ms. Leeman on direct examination whether the

victims and their siblings went to stay with Ms. Dillard or the victims’ mother after being

removed from Defendant’s home. In response to Defendant’s questions, Ms. Leeman

testified that the children were removed on the date the physical abuse was disclosed, and

then she provided the date they were moved from Ms. Dillard’s home to their mother’s

home. We agree with the State that Defendant opened the door to questions about the

removal of the children by asking questions about this subject on direct examination and

that the State was entitled to cross-examine Ms. Leeman on the issue, subject to the trial

court’s limitation. We note that, in her testimony, Ms. Leeman did not provide any

details regarding the decision to remove the children. Ms. Leeman never testified that

K.B. and B.B. were credible or that she had concluded that Defendant was guilty of

sexual assault. Moreover, Defendant cites no evidence to support his assertion that the

jury would have treated Ms. Leeman as an expert witness. The trial court did not abuse

- 57 -

its discretion when it overruled trial counsel’s objection as to relevance and allowed Ms.

Leeman to testify about DCS’s decision to remove the victims and their siblings from

Defendant’s home. This issue is without merit.

H. Exclusion of Evidence

Defendant contends that the trial court erroneously excluded evidence that the

defense sought to introduce, including: (1) evidence of an assault and violent tendencies

of K.B.; (2) evidence of drug use; (3) impeachment evidence about sexual activity; (4)

impeachment evidence from school records; (5) evidence of a false allegation of rape; (6)

a question regarding juvenile court; and (7) Facebook posts. Defendant further contends

that trial counsel rendered ineffective assistance of counsel in attempting to introduce

evidence of K.B.’s violent tendencies, evidence of drug use, and evidence about sexual

activity under Rule 404(b) of the Tennessee Rules of Evidence, instead of Rule 403. The

State responds that the trial court did not abuse its discretion in excluding the evidence

and that Defendant has not shown that trial counsel rendered ineffective assistance of

counsel.

1. Evidence of an Assault and Violent Tendencies of K.B.

Defendant contends that the trial court erred by excluding “evidence of domestic

assault” by K.B. against her mother, as well as evidence that K.B. had “violent

tendencies.” He argues that because K.B. testified on cross-examination that she had

“never become violent” he should have been able to impeach K.B. with a document from

Youth Villages that stated K.B. had “a history of domestic assault on her mom” and that

K.B. reported she “becomes violent when she doesn’t get her way.” Defendant argues

that the evidence of domestic assault and K.B.’s violent tendencies was relevant to the

issue of what precipitated Defendant’s whipping of K.B. He asserts that the trial court

erred by excluding the evidence “under any standard.”

During cross-examination of K.B., trial counsel asked K.B. to admit that she

struck Co-Defendant Robinson on March 14, 2012. When K.B. denied hitting her, the

following colloquy took place:

[TRIAL COUNSEL]: All right. Do you admit that when you do not

get your way you become violent?

[K.B.]: I’ve never become violent. Why -- I’ve never ever did

anything violent while living with them.

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[TRIAL COUNSEL]: That was not exactly my question. Do you

admit that when you do not get your way you become violent?

[K.B.]: No.

[TRIAL COUNSEL]: Do you recall going to a place called Youth

Villages?

The State objected, and at a bench conference, the trial court asked trial counsel,

“What is Youth Villages? What are you trying to prove?” Trial counsel then read the

following from a Youth Villages’ document: “[K.B.] entered DCS custody due to

truancy. She has a history of domestic assault on her mom. She reports she becomes

violent when she doesn’t get her way.” The trial court responded that the evidence did

not “go toward honesty.” The trial court continued:

[J]ust because you’re saying that it shows that she made a different

statement at some other time does not do away with my ruling that it’s

more prejudicial than probative because it doesn’t go towards truthfulness

in terms of talking about her violence. . . . [Y]ou can’t set it up by saying

well, see, Judge, she didn’t talk about her violence therefore I get to bring it

in on truthfulness. It doesn’t work that way.

At the motion for new trial hearing, Defendant introduced a copy of the document

from Youth Villages that is titled, “Youth Villages SCS Assessment Summary and

Recommendations.” The document reflects that the assessment was conducted on

October 25, 2013, at the Davidson County DCS office.

Tennessee Rule of Evidence 402 states, “All relevant evidence is admissible

except as provided by the Constitution of the United States, the Constitution of

Tennessee, these rules, or other rules or laws of general application in the courts of

Tennessee. Evidence which is not relevant is not admissible.” Tenn. R. Evid. 402. As

previously stated, “‘[r]elevant evidence’ means evidence having 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.

However, 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.

Tennessee Rules of Evidence 608(b) provides, “specific instances of conduct of a

witness for the purpose of attacking or supporting the witness’s credibility, other than

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convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence.

They may, however, if probative of truthfulness or untruthfulness . . . be inquired into on

cross-examination.” Tenn. R. Evid. 608(b). Before allowing such cross-examination to

take place, the trial court, upon request, must hold a hearing outside the presence of the

jury to determine whether the probative value of the alleged conduct outweighs its

prejudicial effect and whether there is a factual basis for the inquiry. Id.; State v.

Morgan, 541 S.W.2d 285, 390 (Tenn. 1976).

Here, we agree with the trial court that evidence of K.B.’s alleged domestic assault

on her mother was not admissible as impeachment under 608(b) because it was not

probative of K.B.’s character for truthfulness or untruthfulness. See e.g., State v. James

Thomas Manning, No. M2004-03035-CCA-R3-CD, 2006 WL 163636, at *6 (Tenn.

Crim. App. Jan. 24, 2006), perm. app. denied (Tenn. May 1, 2006) (holding that the

victim’s act of assaulting an individual other than the defendant in an unrelated incident

was not probative of the victim’s character for truthful

This text is long and has been trimmed here. Open the source document for the complete record.