State of Tennessee v. Jose Gonzalez Bonilla

07/07/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 15, 2020

STATE OF TENNESSEE v. JOSE GONZALEZ BONILLA

Appeal from the Criminal Court for Sumner County

No. CR323-2016 Dee David Gay, Judge

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No. M2019-01193-CCA-R3-CD

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The Defendant, Jose Gonzalez Bonilla, was convicted by a jury of rape of a child and

aggravated sexual battery, and he received an effective sentence of thirty-five years in

confinement. The Defendant appeals, asserting that the evidence was insufficient to

support the verdict, that the trial court erred in denying his motion to sever, that the trial

court erred in permitting the testimony of a forensic social worker, that he is entitled to

relief from the convictions under the theory of cumulative error, and that the trial court

erred in sentencing him. After a thorough review of the record, we conclude that the

Defendant is not entitled to appellate relief, and we affirm the trial court’s judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.

GLENN and ROBERT W. WEDEMEYER, JJ., joined.

David Allen Doyle, District Public Defender, and Mike Anderson, Assistant Public

Defender, for the appellant, Jose Gonzalez Bonilla.

Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant

Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie and Daniel

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant’s ten-year-old stepdaughter disclosed to her mother that the

Defendant had sexually abused her by digitally penetrating her on one occasion and by

touching her vaginal area on another occasion. The Defendant fled the state but was

subsequently apprehended and charged with rape of a child occurring in October 2015

and with aggravated sexual battery occurring in November 2015. The Defendant moved

to sever the offenses.

At trial, the victim testified that the Defendant was her stepfather and the father of

her younger brother. The victim recalled that when she was ten years old, she lived with

her mother, her brother, and the Defendant at the home of her mother’s friend for

approximately two months. Her family slept in the living room, but she slept in the

homeowner’s office.

A video of the victim’s forensic interview was played for the jury. The victim

stated in the video that her mother’s friend had a sectional couch in the living room and

that her mother was asleep on one end of the couch while the victim was watching

television at the other end. She told the interviewer that the Defendant was seated at her

mother’s feet and began to tug on the victim’s leg. The Defendant then put his right hand

up the right leg of the victim’s loose-fitting pajama pants. She stated that he put his hand

into her private area and asked her “if it felt good.” She told him to stop and eventually

kicked him. At trial, the victim testified that the Defendant’s middle finger penetrated

her vagina during this episode. She stated on cross-examination that her mother did not

wake up.

The aggravated sexual battery took place at a mobile home into which the family

moved in November of 2015. In the video, the victim stated that the family was painting

the mobile home and that she was standing on the edge of the bathtub to try to reach the

ceiling to paint it. The Defendant came in and began to rub her sides and then

unbuttoned her skinny jeans, under which she had on shorts. He rubbed the top part of

her “area.” The victim pushed the Defendant away, and he left. Her mother and brother

were painting in the living room.

At trial, the victim stated that the Defendant had rubbed her vagina with his hand

on her skin during this episode. She explained that she was wearing shorts under her

jeans because she wanted to have shorts for physical education but it was too cold to wear

shorts outside. She stated on cross examination that she was standing on the rim of the

bathtub, which was approximately three inches wide, and that she did not have trouble

balancing.

The victim did not initially tell her mother about the abuse. She stated that she

had told her mother “something” prior to the disclosure in the hospital but that her mother

did not believe her. The victim had left information out of the prior disclosure. She was

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reluctant to disclose because the Defendant had also threatened to hurt her and anyone

she told.

In January 2016, the victim’s mother was in the hospital because of an intestinal

rupture. The whole family was in the hospital room when the victim decided to tell her

mother about the abuse. The victim testified that she had worried that if she disclosed the

abuse, her mother would attack the Defendant and suffer consequences. She chose to tell

her mother at the hospital because she did not believe her mother could hurt the

Defendant there. The Defendant fled the room when the victim revealed the abuse. The

victim’s mother immediately arranged to be discharged and went to find the Defendant

but was unsuccessful. The victim’s mother then took the victim to another hospital and

subsequently to the child advocacy center where the interview was conducted.

The victim stated that she had been close to the Defendant and thought of him as a

father figure. She testified that she now “shut everybody out” and that the abuse had

affected her relationship with her mother and brother. The victim testified that her

mother was the primary parent to discipline the children but acknowledged that the

Defendant also occasionally disciplined her.

Ms. Jennifer Longmire testified that she had conducted the victim’s forensic

interview at Ashley’s Place, and she detailed her qualifications and those of the advocacy

center.

The victim’s mother testified that she and the Defendant married when the victim

was approximately thirteen months old and that he was the victim’s only father figure.

The victim’s mother had a son with the Defendant who was approximately a year

younger than the victim. The Defendant “walked out” on the family in August 2015. In

September, the victim’s mother and the children moved in with Ms. Elizabeth Vechey

and Ms. Vechey’s roommate. In October, the Defendant “started coming around again,”

and he would spend the night and spend weekends with the family. The victim’s mother

recalled one night in October 2015 when she was on the couch with the victim and

Defendant watching movies and fell asleep. The victim’s mother confirmed that the

family subsequently moved to a mobile home in November, where they painted the walls.

On January 10, 2016, the victim’s mother had been in the hospital for four days,

and her children and the Defendant were visiting her. The victim made a disclosure,

which caused the victim’s mother to get out of bed, remove her intravenous equipment,

and “in anger go after” the Defendant. The Defendant reacted “like a deer that was

caught in headlights,” began to yell, and stormed out. The victim’s mother insisted that

she be discharged against medical advice and began to drive to a children’s hospital, but

she stopped at a different hospital after speaking with her niece on the telephone. She

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reported the victim’s allegations to police and took the victim to Ashley’s Place, the

Sumner County Child Advocacy Center. She later took the victim for a medical

examination at Our Kids in Nashville.

The victim’s mother became aware that the Defendant had left the state, but she

maintained contact with him in an attempt to obtain a confession. The victim’s mother

placed a recorded telephone call to the Defendant with the assistance of the Gallatin

Police Department, and this recording was played for the jury. During this telephone

call, the Defendant denied digitally penetrating the victim but acknowledged, “Maybe she

feel like I was. I did touch her…. I don’t know what the f*** I was thinking…” The

Defendant stated he had apologized to the victim, but he also blamed the victim by

claiming, “At that moment, she let me do whatever I was doing.” The Defendant denied

having touched the victim inappropriately in the bathroom, “at least not intentionally.”

He asserted that he “didn’t for real put [his] hands in there” but put a finger on the back

and front of the victim’s pants to pull them up. The Defendant made other incriminating

statements, including that he did not know what “c[a]me across” him, that he did not see

how he could face the victim’s mother “after what [he had] done,” and that he did not

have the courage to “go back to the house and say ok and act like nothing happened.”

When asked if what he had done to the victim was motivated by something the victim’s

mother had done to him, the Defendant replied, “For a moment … I was thinking of

revenge for all the stuff you done for me, on me.” The victim’s mother asked him if he

had taken something she did “out on [her] child,” and he confirmed, “I guess that is what

I was thinking.”

The victim’s mother testified that the victim was “bubbly” and friendly prior to the

assaults but that she had attempted suicide three times since and that she was cutting

herself. The victim was also taking “her anger and the rage out on her brother” because

he resembled the Defendant.

The victim’s mother acknowledged that the victim only disclosed one sexual

assault in the hospital. She testified that the Defendant did not live at Ms. Vechey’s

house and that if the victim said he did, the victim might have been confused because of

the frequency of the Defendant’s visits. She acknowledged that the Defendant

occasionally disciplined the victim and that the victim would get upset. She agreed that

she had never witnessed any inappropriate contact between the victim and the Defendant.

Ms. Elizabeth Vechey confirmed that she housed the victim’s mother and the two

children for two to three months. The Defendant did not live there but visited one to two

nights per week and on the weekends. She confirmed that the victim’s mother and

brother slept in the living room, noting there was a sectional couch which would

accommodate two adults, in addition to an air mattress. The victim occasionally slept in

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the office. Ms. Vechey did not witness anything inappropriate, and the family moved out

after Thanksgiving.

In January 2016, Investigator James Myers was employed as an investigator with

the Gallatin Police Department, and he was assigned to investigate the case. He made an

appointment for the victim at Ashley’s Place and observed the interview. Investigator

Myers spoke briefly with the Defendant, and the Defendant said he had done nothing and

did not intend to return to the state. Investigator Myers was able to record a telephone

call between the victim’s mother and the Defendant on January 28, 2016. On March 15,

2016, the Defendant had been apprehended and returned to the State, and Investigator

Myers interviewed him. In the interview, the Defendant acknowledged that he “messed

up.” Asked to elaborate, he stated, “I, I mean, I touch her in a couple. I was in there on

the couch, my wife was over here she was on the other side…. I touch her on the thigh or

whatever.” He asserted he did not have intercourse with the victim and that he had

apologized to her because he was “not supposed to be doing that.” He stated that in the

bathroom, he had only been pulling up the victim’s pants, which were falling down.

Investigator Myers agreed that English was not the Defendant’s first language, and he

could not recall whether he had offered the Defendant the services of an interpreter.

The Defendant objected at trial to the proposed testimony of Ms. Jill Howlett, who

was a forensic social worker at Our Kids, an outpatient clinic which conducts medical

examinations of children when there is suspicion of sexual abuse. The Defendant

asserted that Ms. Howlett’s testimony about the victim’s statements constituted

inadmissible hearsay, and the State argued that the statements were medical history taken

for the purposes of medical diagnosis. The court ruled that Ms. Howlett could testify

about the victim’s statements but not about the victim’s mother’s statements. The court

also excluded a statement the victim made to Ms. Howlett that the Defendant had once

choked her when she threatened to tell about the abuse.

Ms. Howlett testified that as a forensic social worker, she would first obtain

information from a child’s parent or guardian, and then, if the child was over five years

old, she would meet with the child in order to obtain the child’s medical history. She

stated that the medical history she would obtain from a child was for the purpose of

medical diagnosis and treatment. She noted that she spoke to the child in part to evaluate

the child’s mental and physical development. Ms. Howlett would immediately share the

medical history she had obtained from the child with the nurse practitioner, who would

then conduct a medical examination of the child. Ms. Howlett spoke with the victim to

obtain her medical history on January 25, 2016, asking the victim about prior injuries,

whether she had started her period, and whether she was experiencing pain during

urination or defecation. She also asked the victim if she knew what the private areas of

her body were and if anyone had ever touched them. The victim stated that her stepfather

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had touched her private area, “[t]he one I go pee from,” with his hand on the inside. She

only disclosed one incident to Ms. Howlett. The victim said that the Defendant

threatened to “smack her” if she told anyone and that she revealed the abuse to her

mother while her mother was in the hospital because she did not believe the Defendant

would hurt her there. She stated that she had not suffered any other sexual abuse. Ms.

Howlett stated that it was not unusual for a child to delay the disclosure of abuse and that

only a small fraction of the children seen at the center were examined within seventy-two

hours of an assault.

Ms. Hollye Gallion, clinical director and pediatric nurse practitioner at Our Kids,

testified regarding the report of the victim’s physical examination. The examination

showed no sign of injury or infection. Ms. Gallion testified that she would not have

expected to see any physical evidence of assault based on the victim’s allegations. She

stated that only about seven percent of children presented with injuries when there were

allegations of sexual abuse and that injuries were more likely if a child reported an

assault within hours, if a child described penetration, or if a child was over twelve or

thirteen years old. She stated that for children under twelve or thirteen, only two or three

percent would present with medical findings, and the percentage would be lower if the

alleged sexual contact had happened weeks prior to the examination. Ms. Gallion

acknowledged that she was not the nurse who had performed the victim’s exam and that

the physical findings were consistent with the absence of sexual abuse. She stated that

the physical findings were also consistent with sexual abuse.

The jury convicted the Defendant of rape of a child and aggravated sexual battery.

At the sentencing hearing, the victim’s mother reiterated that the victim had attempted

suicide and had been cutting herself. Both of her children questioned whether they could

still love the Defendant. The victim had difficulty trusting people, blamed her mother

and brother, and feared that her brother would someday sexually abuse a child. The

victim’s mother asked for the maximum punishment, noting that the Defendant had hurt a

child he had known since infancy. She and the Defendant had since divorced. In

response to the court’s questions, she stated that the Defendant was not legally in the

country and that he had obtained information on becoming a citizen at the time of their

marriage but had not become a citizen. Prior to the victim’s disclosure, the Defendant

had contributed to the household expenses, and the victim had confided in him about her

schooling and social life. The Defendant showed an interest in the victim and was a good

father prior to the abuse. He had expressed remorse for his crime, but during their last

telephone call, he had expressed disbelief at his convictions rather than empathy for the

victim. She acknowledged that she permitted the Defendant’s son to speak with him and

that she had also at times spoken with the Defendant.

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The victim confirmed that she had attempted suicide and cut herself. She said that

she felt she was “hateful” toward her family and friends and that she feared her brother

would turn out like the Defendant. She said she had loved the Defendant like a father,

had thought of him as her best friend, and felt he had betrayed her trust. She stated that

the Defendant had had some sexual contact with her earlier than the incidents charged in

the indictment.

The trial court applied as enhancement that the Defendant had a prior history of

criminal behavior because he was not legally in the country. T.C.A. § 40-35-114(1). The

trial court found he had committed the rape of a child offense to gratify a desire for

pleasure or excitement. T.C.A. § 40-35-114(7). The trial court also found he abused a

position of private trust in committing the offenses. T.C.A. § 40-35-114(14). The trial

court refused to apply as mitigation that the Defendant’s conduct did not cause or

threaten to cause serious bodily injury did not apply, observing that the court did not

“understand it; why you give credit to somebody[’s] sentence because of this.” See

T.C.A. § 40-35-113(1). The trial court applied as mitigation that the Defendant had no

prior criminal record. T.C.A. § 40-35-113(13). The trial court found that the offense was

particularly serious because of the nature of the Defendant and victim’s relationship,

noting that the Defendant destroyed his family unit and left his family. The trial court

found the Defendant had no potential for rehabilitation, observing that he had refused to

make a statement in the presentence report. The trial court sentenced the Defendant to

serve thirty-five years for rape of a child and twelve years for aggravated sexual battery,

to be served concurrently.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant asserts that the evidence was insufficient to support the verdicts

because he believes that it is “unlikel[y]” he or the victim could have performed

“physical feats” such as the Defendant reaching across his body to put his hand up the

victim’s pajama pants or the victim balancing on a bathtub during an assault. However,

we conclude that the prosecution presented evidence from which a rational trier of fact

could have found the elements of the offenses beyond a reasonable doubt.

This court must set aside a finding of guilt if the evidence is insufficient to support

the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.

13(e). The question before the appellate court is whether, after reviewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d

363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it

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may not substitute its inferences drawn from circumstantial evidence for those drawn by

the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty

verdict, approved by the trial judge, accredits the State’s witnesses and resolves all

conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

The trier of fact is entrusted with determinations concerning witness credibility, factual

findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing

the sufficiency of the evidence, we afford the State the strongest legitimate view of the

evidence and all reasonable inferences that can be drawn from the evidence. State v.

Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the

presumption of innocence and replaces it with a presumption of guilt, and on appeal the

defendant has the burden of illustrating why the evidence is insufficient to support the

verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is

sufficient to support a conviction, and the circumstantial evidence need not exclude every

reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297

(Tenn. 2012).

“Rape of a child is the unlawful sexual penetration of a victim by the defendant or

the defendant by a victim, if the victim is more than three (3) years of age but less than

thirteen (13) years of age.” T.C.A. § 39-13-522(a) (2015). Sexual penetration is not

limited to intercourse but includes “any other intrusion, however slight, of any part of a

person’s body or of any object into the genital or anal openings of the victim’s, the

defendant’s, or any other person’s body, but emission of semen is not required.” T.C.A.

§ 39-13-501(7).

As charged here, aggravated sexual battery is unlawful sexual contact with a

victim by the defendant when the victim is less than thirteen years of age. T.C.A. § 39-

13-504(a)(4). Sexual contact includes the intentional touching of the victim’s intimate

parts or the clothing covering the immediate area of the intimate parts, “if that intentional

touching can be reasonably construed as being for the purpose of sexual arousal or

gratification.” T.C.A. § 39-13-501(6). Intimate parts include “the primary genital area,

groin, inner thigh, buttock or breast of a human being.” T.C.A. § 39-13-501(2).

The State’s proof for the rape of a child charge included the testimony of the

victim that the Defendant put his hand up the leg of her pajama pants and that he

penetrated her vagina with his finger. Her testimony was corroborated by the

Defendant’s statements in the telephone call acknowledging that he “did touch her” and

that maybe the victim “fe[lt] like” he penetrated her with his finger. He stated that he did

not know what “c[a]me across” him, that he did not know what he was thinking, and that

he did not feel he could face the family. In the recorded call, the Defendant suggested

that he had been seeking revenge against the victim’s mother for infidelity. He also

acknowledged in his interview with Investigator Myers that he touched the victim on the

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couch, stating that his wife was on the couch and he touched the victim “on the thigh or

whatever.” He maintained that he did not have intercourse with the victim, and he stated

he had apologized to her.

The victim also testified that when she was standing on the bathtub to reach the

ceiling, the Defendant unbuttoned her skinny jeans and manipulated her gym shorts and

underwear in order to rub her vagina. On the recorded telephone call, the Defendant

acknowledged putting a finger on the front and back of the ten-year-old victim’s pants to

pull them up but maintained that he “didn’t for real put [his] hands in there.” In the

police interview, he likewise asserted he was only pulling up her pants. After the victim

revealed the abuse, the Defendant fled the hospital room and the state. He told

Investigator Myers that he did not intend to return.

We conclude that this evidence is sufficient for a rational trier of fact to find the

elements of the charged offenses. The Defendant’s argument is essentially a challenge to

the jury’s credibility determinations, which we will not revisit on appeal. Smith, 436

S.W.3d at 764. The Defendant is not entitled to relief.

II. Severance

The Defendant asserts the trial court erred in considering improper evidence on the

severance issue. He also asserts that the trial court erred in denying his motion to sever

the two offenses against the victim because the offenses were subject to severance, as

they were not part of a common scheme or plan and neither would have been admissible

in the trial of the other under Tennessee Rule of Evidence 404(b). We conclude that the

State offered sufficient evidence at the hearing to provide a basis for the trial court’s

ruling. Furthermore, the trial court did not abuse its discretion in denying severance

because the Defendant’s acts were part of a larger, continuing plan or conspiracy and

were relevant to a material issue other than propensity.

At the severance hearing, the State introduced the victim’s forensic interview and

a recorded telephone call between the victim’s mother and the Defendant. The Defendant

objected to the forensic interview on hearsay grounds and objected to the prosecutor’s

request that the court to listen to the recorded material in chambers rather than playing

the recordings in open court. The prosecutor noted that the forensic interviewer was

present at the severance hearing and could testify to satisfy the statutory requirements

pertinent to the advocacy clinic and the interview prior to the admission of the forensic

recording. However, defense counsel stated that even if the strictures of the statute were

satisfied, the defense believed that the forensic interview would only be admissible at

trial and not at the hearing. The trial court stated that it would consider the two

recordings in chambers, it noted that the defense would have access to the recordings in

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order to know what had been put before the court, and the hearing was continued. When

the hearing resumed, the recorded telephone call between the Defendant and the victim’s

mother was played in court.

The Defendant argued that the two offenses were not subject to mandatory joinder

and that he was entitled to severance under the principles of permissive joinder. The

State argued that the offenses were subject to mandatory joinder. The trial court ruled

that the principles of permissive joinder applied but that the offenses were part of a

larger, continuing plan or conspiracy because they had a common goal or purpose, which

was “borne out in the phone call.” The court found that evidence of one would be

admissible in the trial of the other to establish motive, intent, or lack of mistake, and it

concluded that the probative value of the evidence was not outweighed by undue

prejudice. The trial court denied the motion to sever the offenses.

A. Proof at Severance Hearing

The Defendant objects to the trial court’s consideration of the recordings of the

controlled telephone call between the Defendant and the victim’s mother and to the video

recording of the forensic interview. A trial court considering a severance issue should

conduct a hearing to determine if the requirements of Tennessee Rule of Criminal

Procedure 14(b)(1) have been met. State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008).

“[B]y holding a hearing and issuing findings of fact and conclusions of law, a trial court

ensures that, on review, the appellate courts will have an adequate record from which to

determine whether the trial court erred upon an allegation that it improperly consolidated

offenses.” State v. Garrett, 331 S.W.3d 392, 403 (Tenn. 2011). The trial court’s

conclusions regarding severance must be drawn “from the evidence and argument

presented at the hearing.” Dotson, 254 S.W.3d at 387. A motion regarding severance or

consolidation is normally heard prior to trial, and “evidence and arguments tending to

establish or negate the propriety of consolidation must be presented to the trial court in

the hearing on the motion.” Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000).

Accordingly, “appellate courts should usually only look to that evidence, along with the

trial court’s findings of fact and conclusions of law, to determine whether the trial court

abused its discretion by improperly joining the offenses.” Id. However, the Tennessee

Supreme Court has considered evidence adduced at trial in reviewing a severance

determination when the trial court failed to hold an adequate hearing. Garrett, 331

S.W.3d at 404; State v. Toliver, 117 S.W.3d 216, 228 n.4 (Tenn. 2003) (concluding that,

when the severance issue was only addressed in a “shortened” hearing on the morning of

trial, appellate review would “necessarily require[] review of the evidence at trial”);

compare Spicer, 12 S.W.3d at 447 (concluding that in the context of an open-dated

indictment, the State could not meet its burden to consolidate “with evidence later

developed at trial” and that the appellate court would not consider such evidence or the

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effect of a later election but that “the state must bring forth sufficient evidence at the

hearing to establish that specific acts constitute parts of a common scheme or plan”).

At the severance hearing, the State sought to introduce the recording of the

controlled call between the Defendant and the victim’s mother. The Defendant objected

not to the telephone call itself but to the trial court’s decision to review it in chambers.

The recording of the controlled telephone call was ultimately played in court during the

second day of the hearing. The Defendant cites to no authority for the proposition that

this was improper. We conclude that any objection to the consideration of the controlled

call is waived. Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by

argument, citation to authorities, or appropriate references to the record will be treated as

waived in this court.”). Accordingly, the trial court properly considered the recorded

telephone call as evidence. We note that, in finding that the offenses constituted a larger,

continuing plan or conspiracy, the trial court relied only on evidence “that was borne out

in the phone call.” The Defendant’s admissions of wrongdoing, his statement that he

committed the acts as revenge, and his assertion that the victim was mistaken about the

nature of the touching were all contained in the recorded telephone call.

Regarding the forensic interview, the Defendant agreed that the interview would

be admissible at trial if the statutory requirements were met but objected on a hearsay

basis to its consideration at the severance hearing. The prosecution noted that Ms.

Longmire was at the hearing and could testify regarding whether the video met the

statutory requirements of Tennessee Code Annotated section 24-7-123. However, Ms.

Longmire was not called, because the Defendant stated that his objection was not to

whether the statutory requirements were met but was a hearsay objection to the

admissibility of the video under any conditions during a hearing on a motion to sever.

A statement that is offered in evidence to prove the truth of the matter asserted and

that is not made by the declarant while testifying at the trial or hearing constitutes

hearsay. Tenn. R. Evid. 801(c). Hearsay is not admissible except as provided by the

Rules of Evidence or otherwise by law. Tenn. R. Evid. 802. While an appellate court

defers to a trial court’s findings of fact or credibility determinations regarding hearsay,

we review de novo the determination of whether the statement is hearsay or whether it is

subject to an exception to the rule against hearsay. Kendrick v. State, 454 S.W.3d 450,

479 (Tenn. 2015).

We observe that the bulk of the evidentiary relevance of the forensic interview did

not relate to the truth of the matters asserted therein. In deciding the motion to sever, the

trial court was not called upon to determine the truth of the victim’s accusations in the

video. The trial court was instead called upon to determine what allegations were leveled

against the Defendant and whether the alleged crimes constituted part of a larger,

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continuing plan or conspiracy. For the purposes of severance, the video was evidence not

of the fact that the Defendant committed rape of a child and aggravated sexual battery but

of the fact that the State possessed evidence which would show two separate crimes

committed on the same victim at different times and locations. In other words, even if

the trial court had found the victim’s assertions not credible, the video would have been

relevant to establish that the Defendant was accused of having digitally penetrated the

victim at one address and accused of having fondled the victim about one month later at a

different address. The circumstances of the accusations were relevant to determine

whether there was a larger, continuing plan or conspiracy and whether any of the alleged

offenses would be relevant to a material issue other than propensity.

In any event, “the Tennessee Rules of Evidence generally do not apply in hearings

to determine the admissibility of evidence.” State v. Bonds, 502 S.W.3d 118, 138 (Tenn.

Crim. App. 2016) (concluding that hearsay testimony regarding identification at a

suppression hearing was properly admitted) (citing Tenn. R. Evid. 104(a)). Under

Tennessee Rule of Evidence 104(a), preliminary questions regarding the admissibility of

evidence must be determined by the trial court, but the trial court “is not bound by the

rules of evidence except those with respect to privileges.” Tenn. R. Evid. 104(a). As part

of the severance determination, the trial court was called upon to determine whether the

evidence of one offense would be admissible in the trial of the other offense under

Tennessee Rule of Evidence 404(b). See Garrett, 331 S.W.3d at 402 (“As we have

pointed out previously, Tennessee Rule of Evidence 404(b) is called into play when a

trial court must decide whether proof of a defendant’s alleged misconduct on one

occasion may be admitted in conjunction with proving his alleged misconduct on a

separate occasion.”); Dotson, 254 S.W.3d at 387. We conclude that the trial court did not

err in considering the evidence presented by the State during the severance hearing. The

Defendant’s contention that the trial court’s determinations were based on improper

evidence is without merit.

B. Severance

The Defendant asserts that the trial court erred in denying his motion for a

severance, arguing that the offenses were not part of a common scheme or plan and that

the trial court erred in its analysis under Tennessee Rule of Evidence 404(b). The State

responds that the trial court did not err in its conclusion and that any error would be

harmless. We conclude that the offenses were part of a common scheme or plan to seek

revenge against the victim’s mother and that the trial court did not err in its analysis

under Tennessee Rule of Evidence 404(b). The Defendant is not entitled to relief.

We agree with the parties that this issue is properly analyzed under the principles

of permissive joinder. A trial court’s decisions regarding permissive joinder under

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Tennessee Rule of Criminal Procedure 8(b) or severance pursuant to Tennessee Rule of

Criminal Procedure 14(b)(1) are reviewed for abuse of discretion. Spicer, 12 S.W.3d at

442 (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). The court abuses its

discretion when it court applies an incorrect legal standard, or reaches a decision which is

against logic or reasoning that caused an injustice to the party complaining. Id. at 442-

43. The trial court may exercise its discretion only “when the offenses are parts of a

common scheme or plan and when the offense sought to be severed would be admissible

as evidence in the trial of the other offenses.” Shirley, 6 S.W.3d at 247. Failing to

consider the relevant factors also constitutes an abuse of discretion. Garrett, 331 S.W.3d

at 401.

Tennessee Rule of Criminal Procedure 8(b) governs permissive joinder:

(b) Permissive Joinder of Offenses. Two or more offenses may be joined

in the same indictment, presentment, or information, with each offense

stated in a separate count, or consolidated pursuant to Rule 13, if:

(1) the offenses constitute parts of a common scheme or plan; or

(2) they are of the same or similar character.

In a case of permissive joinder, the defendant may nevertheless be entitled to a severance

under Tennessee Rule of Criminal Procedure 14(b)(1):

(1) …. If two or more offenses are joined or consolidated for trial pursuant

to Rule 8(b), the defendant has the right to a severance of the offenses

unless the offenses are part of a common scheme or plan and the evidence

of one would be admissible in the trial of the others.

Even where offenses have properly been consolidated under Rule 8(b), the

defendant is still entitled to a severance unless the requirements of Rule 14(b)(1) are met.

Garrett, 331 S.W.3d at 402. Accordingly, a defendant “has an absolute right to have

offenses separately tried unless the prosecution shows that the offenses are part of a

common scheme or plan and evidence of each crime would be admissible in the trial of

the others.” Toliver, 117 S.W.3d at 228.

In ruling on a severance motion, the trial court must consider the evidence and

arguments presented at the hearing and determine whether: (1) the offenses constitute

parts of a common scheme or plan; (2) evidence of one of the offenses is relevant to a

material issue in the trial of the other offenses; and (3) the probative value of the proof

regarding the other offenses is not outweighed by the prejudicial effect of the admission

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of the evidence. Dotson, 254 S.W.3d at 387. “[T]he ‘primary issue’ to be considered in

any severance case is whether evidence of one offense would be admissible in the trial of

the other if the two offenses remained severed.” Spicer, 12 S.W.3d at 444 (citing State v.

Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984)). “In its most basic sense, therefore, any

question as to whether offenses should be tried separately pursuant to Rule 14(b)(1) is

‘really a question of evidentiary relevance.’” Id. (quoting State v. Moore, 6 S.W.3d 235,

239 (Tenn. 1999)). The Tennessee Supreme Court has observed that admission of other

crimes carries an inherent risk that the jury will consider the prior crime as propensity

evidence. Dotson, 254 S.W.3d at 387. “Accordingly, any doubt about the propriety of

the consolidation of similar offenses over a defendant’s objection should be resolved in

favor of the defendant.” Garrett, 331 S.W.3d at 403.

1. Common Scheme or Plan

The phrase “common scheme or plan” has the same meaning as the same phrase

“for evidentiary purposes.” Moore, 6 S.W.3d at 240 n.7. Offenses forming part of a

common scheme or plan fall into one of three categories: “(1) offenses that reveal a

distinctive design or are so similar as to constitute ‘signature’ crimes; (2) offenses that are

part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the

same criminal transaction.” Shirley, 6 S.W.3d at 248 (citing Neil P. Cohen et al.,

Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)). In this case, the offenses are

neither signature crimes nor part of the same criminal transaction, but the trial court

found they were part of a larger, continuing plan or conspiracy. When offenses are

alleged to be part of a larger, continuing plan or conspiracy, the prosecution must present

proof of “‘a working plan, operating towards the future with such force as to make

probable the crime for which the defendant is on trial.’” State v. Prentice, 113 S.W.3d

326, 331 (Tenn. Crim. App. 2001) (quoting State v. Hoyt, 928 S.W.2d 935, 943 (Tenn.

Crim. App. 1995), overruled on other grounds by Spicer, 12 S.W.3d at 447 n.12).

“[A] larger, continuing plan or conspiracy ‘involves not the similarity between the

crimes, but [rather] the common goal or purpose at which they are directed.’” State v.

Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting Hoyt, 928 S.W.2d at 943); see State v.

Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). The offenses may not be simply

a string of similar crimes, but must be committed “in furtherance of a plan that has a

readily distinguishable goal.” Denton, 149 S.W.3d at 15. In other words, the plan must

operate towards the future “‘with such force as to make probable the crime for which the

defendant is on trial.’” Prentice, 113 S.W.3d at 331 (Tenn. Crim. App. 2001) (quoting

Hoyt, 928 S.W.2d at 943). A shared motivation for two otherwise unrelated crimes is not

sufficient, but “[e]ach of the consolidated offenses must serve to further the goal or plan

in existence at the time of the commission of the first offenses.” State v. Timothy Leron

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Brown, No. M2017-00904-CCA-R3-CD, 2019 WL 1514551, at *28 (Tenn. Crim. App.

Apr. 8, 2019), perm. app. denied (Tenn. Aug. 15, 2019).

The mere fact that multiple crimes were committed for the purpose of sexual

gratification does not serve to make them part of a larger, continuing plan or conspiracy

for the purposes of joinder. Denton, 149 S.W.3d at 15 (concluding that a medical

provider’s sexual offenses were not part of continuing plan or conspiracy based only on

the fact that they were committed for sexual gratification); Moore, 6 S.W.3d at 240

(analyzing under the signature crimes theory, but also noting that separate rapes of the

defendant’s stepdaughter occurring months apart in different circumstances were not

properly part of a larger conspiracy); Burchfield, 664 S.W.2d at 288 (offenses committed

more than ten years apart against two victims were not part of a common scheme or

plan); Hallock, 875 S.W.2d at 289-90 (defendant’s sexual abuse of minor children in his

household was not part of a common scheme or plan merely because it was for the

purpose of sexual gratification).

On the other hand, sexual offenses evincing a plan or conspiracy may be joined for

trial under Rule 14(b)(1). State v. Osborne, 251 S.W.3d 1, 12-13 (Tenn. Crim. App.

2007) (the defendant’s sexual offenses against his daughter and another minor victim

were part of a common scheme or plan when he used his daughter’s friendship with the

other victim and his status as the victim’s babysitter to commit the offenses); State v.

Thomas D. Stricklin, No. M2005-02911-CCA-R3-CD, 2007 WL 1028535, at *11 (Tenn.

Crim. App. Apr. 5, 2007) (the defendant’s sexual offenses against two victims were part

of a larger, continuing plan or conspiracy when he told police he was attempting to

educate the victims on sexual matters); State v. David Boyd Conner, Jr., No. M2005-

01628-CCA-R3-CD, 2006 WL 3516215, at *5 (Tenn. Crim. App. Dec. 5, 2006) (multiple

offenses against single victim were part of a continuing plan); State v. Morris, 788

S.W.2d 820, 823 (Tenn. Crim. App. 1990) (the defendant’s sexual offenses were part of a

common scheme or plan to molest the victims when they were committed against

members of a tumbling group over a period of years and he used his position of respect in

the community to select his victims and to entice them by offering them recognition in

the tumbling group); see Craig U. Quevedo v. State, No. M2010-01399-CCA-R3-PC,

2013 WL 1188957, at *12 (Tenn. Crim. App. Mar. 22, 2013) (concluding on post-

conviction that a severance issue was not meritorious because the petitioner’s journal

indicated a continuing plan to attempt penetrate the victim and to isolate her in order to

continue to subject her to sexual abuse); State v. Marcos Enrique Collazo, Sr., No.

M2009-02319-CCA-R3-CD, 2011 WL 4529643, at *11 (Tenn. Crim. App. Sept. 29,

2011) (sexual abuse of two nieces was part of a common scheme or plan when the

defendant told the victims he had magic powers and convinced them that only sexual

contact would alleviate his pain).

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Here, the Defendant made incriminating statements in the recorded telephone

conversation with the victim’s mother. At one point, he told the victim’s mother that he

had touched the victim as “revenge” for the things that the victim’s mother had done to

him, and they discussed men she had seen while he was “away.” The victim’s mother

asked, “So everything that I [did] to you, you took it out on my child…?” The Defendant

confirmed, “I guess that is what I was thinking.” We conclude that this evidence is

enough to establish a larger, continuing plan or conspiracy to enact revenge on the

victim’s mother by sexually abusing the victim. Accordingly, the trial court did not err in

finding that the two offenses were part of a common scheme or plan.

2. Admissibility of One Offense in Trial of Other

The trial court has the discretion to deny severance only when the offenses are

both part of a common scheme or plan and “when the offense sought to be severed would

be admissible as evidence in the trial of the other offenses.” Shirley, 6 S.W.3d at 247. In

order to meet the admissibility requirement of the second prong of admissibility under

Rule 14(b)(1), the trial court must conclude first that “the evidence of each offense is

relevant to some material issue in the trial of the other offense under Tennessee Rule of

Evidence 404(b)(2),” and it must also find that “the probative value of the evidence of the

other offense is not outweighed by the prejudicial consequences of admission under

Tennessee Rule of Evidence 404(b)(4).” Osborne, 251 S.W.3d at 12.

Accordingly, we must decide whether evidence of one of the offenses is relevant

to some material issue in the trial of the other offense. See Dotson, 254 S.W.3d at 387.

Tennessee Rule of Evidence 404(b) excludes evidence of “other crimes, wrongs, or acts”

when offered only to show the defendant’s propensity to commit those “crimes, wrongs,

or acts.” Evidence of other crimes is admissible to show: “(1) motive; (2) intent; (3)

guilty knowledge; (4) identity of the defendant; (5) absence of mistake or accident; or (6)

a common scheme or plan for commission of two or more crimes so related to each other

that proof of one tends to establish the other.” Osborne, 251 S.W.3d at 12. In the

recorded telephone call, the Defendant acknowledged touching the victim but told the

victim’s mother that he did not digitally penetrate her, although “[m]aybe she feel like I

was.” Regarding the aggravated sexual battery, the Defendant stated he “didn’t really

didn’t put [his] hands in” the victim’s pants but instead put a finger on the back and front

of the victim’s pants to pull them up. Accordingly, the Defendant’s statements allege that

the victim was mistaken about the nature of the touching that was the basis for the

offenses and that he did not intend to touch the victim sexually. He also stated he was

thinking of revenge during the touching. The admission of the evidence of other crimes,

then, was relevant to establish motive and intent and to rebut a defense of accident or

mistake. The trial court did not err in concluding that the prior wrongs were admissible

under Tennessee Rule of Evidence 404(b). Thomas D. Stricklin, 2007 WL 1028535, at

- 16 -

*11 (the offenses against separate victims were relevant to show motive, intent, and lack

of accident or mistake when the defendant stated that he was attempting to impart sexual

education and either touched the victims inadvertently or only touched them by “tapping”

them).

Neither did the trial court abuse its discretion in determining that the probative

value of the evidence was not outweighed by the prejudicial effect. The proof on the two

offenses was not only substantially similar but almost entirely overlapping. The offenses

were committed against one victim, who testified as to both offenses, and the

Defendant’s statements to police and to the victim’s mother acknowledged having

touched the victim on both occasions but denied penetrating her on the couch or touching

her sexually in the bathroom. The Defendant made general admissions that he made a

mistake, did not know what he had been thinking, was sorry, and was afraid to face the

family, and these general admissions were not specific to one particular offense.

Accordingly, the strength of the proof on both counts was approximately the same, and

the same proof would have been admissible at both trials. We conclude that the trial

court did not abuse its discretion in concluding the probative value was not outweighed

by the prejudicial effect. State v. Jeremy Randall C. Ledbetter, No. M2018-00846-CCA-

R3-CD, 2020 WL 853733, at *20 (Tenn. Crim. App. Feb. 20, 2020) (concluding that

“single victim and strong probative value of the other acts evidence” limited the concern

for unfair prejudice).

Because the Defendant’s statements support the conclusion that the offenses were

part of a larger, continuing plan or conspiracy to enact revenge on the victim’s mother,

because proof of each offense was relevant to motive, intent, and absence of accident or

mistake, and because the trial court did not err in balancing the probative and prejudicial

value, we conclude that the trial court did not abuse its discretion in denying the motion

to sever.

III. Forensic Social Worker’s Testimony

The Defendant also asserts that the testimony of Ms. Howlett, the forensic social

worker who spoke with the victim prior to her medical examination at Our Kids,

constituted inadmissible hearsay. We conclude that the trial court properly found that the

statements were admissible because they were made for the purposes of medical

diagnosis and treatment.

Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.

R. Evid. 801(c). Hearsay is generally not admissible. Tenn. R. Evid. 802. A trial court’s

findings of fact or credibility determinations underlying a decision to admit or exclude

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hearsay are binding on an appellate court unless the evidence preponderates against them.

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The appellate court reviews de

novo the determination of whether the statement is hearsay or whether it is subject to an

exception to the rule against hearsay. Id. We review for abuse of discretion the

determination to exclude otherwise admissible hearsay based on relevance or on a

balancing of probative value and prejudice under Tennessee Rule of Evidence 403. Id.

One exception to hearsay is “[s]tatements made for purposes of medical diagnosis

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

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

reasonably pertinent to diagnosis and treatment.” Tenn. R. Evid. 803(4). The rationale

behind making such statements admissible is that such a statement is “‘presumptively

trustworthy because a patient is strongly motivated to speak the truth in order to receive

proper diagnosis and treatment’” and because a statement deemed sufficiently reliable to

form the basis of diagnosis and treatment “‘is also sufficiently reliable for consideration

by a court of law.’” State v. Spratt, 31 S.W.3d 587, 600 (Tenn. Crim. App. 2000)

(quoting State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997)). The statement does not

necessarily have to be made to the treating physician, so long as it is made for the

purposes of diagnosis and treatment. Id. at 600-01. The fact that the declarant is a child

does not undermine the hearsay exception, although the court should consider “all the

circumstances of a child’s statement because the child’s ability to articulate the reason for

the statement may be affected by age or developmental maturity.” Stinnett, 958 S.W.2d

at 332. “A statement improperly influenced by another, one made in response to

suggestive or leading questions, or inspired by a custody battle or family feud deserves

especially careful scrutiny because such statement may have been made for purposes

other than diagnosis and treatment.” Id.

Ms. Howlett testified that she obtained a medical history from the victim and that

this medical history was for the purposes of medical diagnosis and treatment. She

elaborated that she would ask a child for medical history in part for the purpose of

evaluating a child’s mental and physical development. Ms. Howlett asked the victim

about prior injuries, whether she had started her period, and whether she was

experiencing pain during urination or defecation. She also asked the victim if she knew

what the private areas of her body were and if anyone had ever touched them. The victim

told Ms. Howlett that her stepfather had touched her private area, “[t]he one I go pee

from,” with his hand on the inside. She only disclosed one incident to Ms. Howlett. The

victim said that the Defendant threatened to “smack her” if she told anyone and that she

told her mother in the hospital because she did not believe the Defendant would hurt her

there. Ms. Howlett shared the medical history she had obtained from the victim with the

nurse practitioner immediately prior to the nurse practitioner’s medical examination of

the victim.

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We conclude that the trial court properly admitted the victim’s statements that the

Defendant had had sexual contact with her. The victim was ten years old — “old enough

to understand that the physician was examining her to determine whether there was injury

or trauma and to treat her for such, if necessary.” Stinnett, 958 S.W.2d at 332. There is

no evidence that the victim had any motivation to be untruthful with medical personnel.

See id. The Defendant asserts it was improper for Ms. Howlett to ask the victim about

whether she had ever been subjected to inappropriate touching, arguing that such a

question demonstrates that the victim’s statements were not made for the purpose of

medical diagnosis and treatment. While Ms. Howlett testified that the victim’s

statements were made in response to a question asking the victim to identify her private

body parts and asking whether anyone had touched her private parts, she also testified the

information was part of the victim’s medical history which was used to guide the

subsequent physical examination. We note parenthetically that the statements admitted

through Ms. Howlett were largely cumulative of the victim’s trial testimony. We

conclude that the trial court did not err in admitting the testimony.

IV. Cumulative Trial Errors

The Defendant also asserts that he is entitled to relief from his convictions under a

theory of cumulative error. The doctrine of cumulative error recognizes that “there may

be multiple errors committed in trial proceedings, each of which in isolation constitutes

mere harmless error, but which when aggregated, have a cumulative effect on the

proceedings so great as to require reversal in order to preserve a defendant’s right to a fair

trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). Reversal for cumulative error

functions to protect the defendant’s constitutional right to a fair trial, but such reversals

are rare. State v. Herron, 461 S.W.3d 890, 910 (Tenn. 2015). The doctrine of cumulative

error only applies when there has been more than one error committed during trial.

Hester, 324 S.W.3d at 77. Because we have concluded that the evidence was sufficient

to support the verdicts, that the motion to sever was not denied in error, and that Ms.

Howlett’s testimony was admissible, the Defendant is not entitled to relief under a theory

of cumulative error.

V. Sentencing

The Defendant also asserts that the trial court erred in sentencing him because it

improperly elicited evidence regarding his immigration status, considered his

immigration status in evaluating his history of criminal behavior, considered his refusal

to make a statement in the presentence report, and refused to apply the mitigating factor

that the Defendant’s conduct neither caused nor threatened to cause serious bodily injury.

The State responds that the trial court properly applied enhancement factors, that the

- 19 -

sentence fell within the appropriate range, and that the trial court did not abuse its

discretion.

A trial court’s sentencing decisions are generally reviewed for abuse of discretion,

with a presumption of reasonableness granted to within-range sentences that reflect a

proper application of the purposes and principles of sentencing. State v. Bise, 380

S.W.3d 682, 707 (Tenn. 2012). A trial court abuses its discretion when it applies an

incorrect legal standard, reaches an illogical conclusion, bases its decision on a clearly

erroneous assessment of the evidence, or employs reasoning that causes an injustice to

the party complaining. Herron, 461 S.W.3d at 904. The court will uphold the sentence

“so long as it is within the appropriate range and the record demonstrates that the

sentence is otherwise in compliance with the purposes and principles listed by statute.”

Bise, 380 S.W.3d at 709-10. This court cannot reverse a sentence based on the trial

court’s failure to adjust a sentence in “light of applicable, but merely advisory, mitigating

or enhancement factors.” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The trial

court is “to be guided by — but not bound by — any applicable enhancement or

mitigating factors when adjusting the length of a sentence.” Bise, 380 S.W.3d at 706.

Further, “a trial court’s misapplication of an enhancement or mitigating factor does not

invalidate the sentence imposed unless the trial court wholly departed from the 1989 Act,

as amended in 2005.” Id. A sentence imposed by the trial court that is within the

appropriate range should be upheld “[s]o long as there are other reasons consistent with

the purposes and principles of sentencing, as provided by statute.” Id. The appealing

party bears the burden of proving that the sentence was improper. Carter, 254 S.W.3d at

344.

In determining “the specific sentence and the appropriate combination of

sentencing alternatives,” the trial court must consider: (1) the evidence at the trial and the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and

arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal

conduct involved; (5) evidence and information offered by the parties on the applicable

mitigating and enhancement factors; (6) any statistical information provided by the

administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; (7) any statement the defendant wishes to make in the defendant’s own behalf

about sentencing; and (8) the result of the validated risk and needs assessment conducted

by the department and contained in the presentence report. T.C.A. § 40-35-210(b).

The trial court should impose a sentence which is “justly deserved in relation to

the seriousness of the offense.” T.C.A. § 40-35-102(1). The sentencing laws are

intended “to assure fair and consistent treatment of all defendants by eliminating

unjustified disparity in sentencing and providing a fair sense of predictability of the

criminal law and its sanctions.” T.C.A. § 40-35-102(2). “Sentencing should exclude all

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considerations respecting race, gender, creed, religion, national origin and social status of

the individual.” T.C.A. § 40-35-102(4). Inequalities in sentencing that are unrelated to a

purpose of the sentencing act should be avoided. T.C.A. § 40-35-103(3). The sentence

should be “the least severe measure necessary to achieve the purposes for which the

sentence is imposed” and it should “be no greater than that deserved for the offense

committed.” T.C.A. § 40-35-103(2), (4). The trial court should consider the defendant’s

potential or lack of potential for rehabilitation. T.C.A. § 40-35-103(5).

At sentencing, the victim and her mother both testified regarding the profound

impact the abuse had on their family. The victim noted that the Defendant had been her

father-figure and best friend and that she was experiencing trouble in her ability to trust

and in her personal relationships. The trial court questioned the victim’s mother about

the Defendant’s immigration status, which had been the subject of some redacted

statements in the Defendant’s interview with Investigator Myers. The court asked what

the Defendant’s “citizenship status” was, and the victim’s mother answered, “He is

illegal.” She stated that when they were married, an attorney had informed the Defendant

“on what steps needed to be done” but that the Defendant did not follow through.

The trial court recited that it was considering the proof adduced at trial, testimony

from the sentencing hearing, the presentence report, the principles of sentencing, the

nature and characteristics of the criminal conduct involved, the arguments of counsel, and

mitigating and enhancements factors. The trial court particularly noted it had considered

the “attitude” of the Defendant, his refusal to make a statement, and his potential for

rehabilitation.

The court applied as enhancement that the Defendant had a prior history of

criminal behavior because he was not legally in the country. See T.C.A. § 40-35-114(1).

The trial court found he had committed the rape of a child offense to gratify a desire for

pleasure or excitement. See T.C.A. § 40-35-114(7). The trial court also found he abused

a position of private trust in committing the offenses. See T.C.A. § 40-35-114(14). The

trial judge refused to apply the mitigating factor that the Defendant’s conduct did not

cause or threaten to cause serious bodily injury, observing he did not understand the

factor or “why you give credit to somebody[’s] sentence because of this.” See T.C.A. §

40-35-113(1). The court applied as mitigation that the Defendant had no prior criminal

record. See T.C.A. § 40-35-113(13).

In looking at whether the sentence was justly deserved in relation to the

seriousness of the offense, the trial court found that the offense was particularly serious

because of the nature of the Defendant and victim’s relationship. The trial court noted

the impact on the victim. The trial court found the Defendant had no potential for

rehabilitation, noting that he had refused to make a statement in the presentence report.

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The court found he had shown no remorse and had not asked for forgiveness. The trial

court sentenced the Defendant to serve thirty-five years for rape of a child and twelve

years for aggravated sexual battery, to be served concurrently.

The parties agree that the Defendant’s sentences of thirty-five and twelve years

fall within the appropriate ranges. The Defendant nevertheless asserts various errors.

First, he contends that the trial court improperly elicited evidence regarding his

immigration status. The Defendant cites to no authority for the proposition that it was

improper for the court to ask the State’s witnesses questions, and we are aware of none.

Instead, Tennessee Code Annotated section 40-35-209(b) provides that the rules of

evidence generally apply in a sentencing hearing. Tennessee Rule of Evidence 614(b)

permits a court to interrogate witnesses. Accordingly, “[s]o long as the inquiry is

impartial, trial courts may ask questions to either clarify a point or to supply any

omission.” State v. Schiefelbein, 230 S.W.3d 88, 118 (Tenn. Crim. App. 2007). The trial

court had previously redacted information in the police interview tending to show that the

Defendant had been deported and was not legally residing in the country. Accordingly,

we do not think the trial court erred in inquiring about the Defendant’s immigration

status.

In response to the court’s question, the victim’s mother stated that the Defendant

was “illegal,” presumably meaning that he had not immigrated to the United States in

compliance with United States law. She stated that the Defendant had consulted a lawyer

after they were married but that he had not rectified his immigration status. The trial

court apparently credited this testimony. The Defendant contends that the trial court

improperly considered his immigration status in enhancing his sentence based on a prior

history of criminal behavior. Evidence that a defendant entered this country in violation

of immigration laws constitutes evidence of prior criminal behavior. State v. Guadalupe

Arroyo, Alias, No. E2002-00639-CCA-R3-CD, 2003 WL 1563209, at *3 (Tenn. Crim.

App. Mar. 27, 2003) (concluding that entering the country illegally, drinking underage,

and driving without a license all constituted prior criminal behavior under enhancement

factor (1)). Although the Defendant argues that there is not enough evidence to support

the trial court’s finding, “facts relevant to sentencing need be established only ‘by a

preponderance of the evidence and not beyond a reasonable doubt.’” State v. Cooper,

336 S.W.3d 522, 524 (Tenn. 2011) (quoting State v. Winfield, 23 S.W.3d 279, 283 (Tenn.

2000)). We conclude that the trial court did not err in applying this factor.

The Defendant next contends that the trial court erred in considering his refusal to

make a statement in the presentence report. The State responds that the trial court’s

observation was merely a comment on the Defendant’s lack of remorse. The trial court,

in listing the statutory considerations for sentencing, stated that it had considered “[t]he

statement the Defendant made, and in this particular case, his refusal to make any

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statement.” The trial court again later noted that the Defendant had refused to make a

statement, concluding that this reflected on his potential for rehabilitation: “the

Defendant has shown absolutely no potential for rehabilitation, you refuse to speak, or

answer questions, no expression of remorse, no asking for forgiveness, no admitting

wrong, these are factors that are very considerable in sentencing the Defendant.”

The Defendant cites to Mitchell v. United States, for the proposition that he

retained a right against self-incrimination during sentencing. 526 U.S. 314, 327-28

(1999). In Mitchell, the United States Supreme Court concluded that the proposition that

no negative inference is permissible from a defendant’s refusal to testify extends to “the

sentencing phase of a criminal case with regard to factual determinations respecting the

circumstances and details of the crime.” Id. at 328. The Court noted, however, that

“[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance

of responsibility for purposes of the downward adjustment [pursuant to the sentencing

guidelines], is a separate question.” Id. at 330. We conclude that the trial court’s

consideration of the Defendant’s refusal to make a statement did not concern “factual

determinations respecting the circumstances and details of the crime.” Id. at 328.

Instead, the trial court appears to have considered the Defendant’s refusal in light of his

potential for rehabilitation and remorse. We conclude that the Defendant’s right against

self-incrimination was not violated. See United States v. Kennedy, 499 F.3d 547, 551

(6th Cir. 2007) (concluding that it was within the court’s discretion to consider the

defendant’s refusal to take a psychosexual examination when selecting a sentence).

The Defendant asserts that the trial court erroneously refused to apply the

mitigating factor that the Defendant’s conduct neither caused nor threatened to cause

serious bodily injury. The Defendant cites to State v. Hayes, 899 S.W.2d 175, 187 (Tenn.

Crim. App. 1995), in which this court determined that the mitigating factor applied to a

conviction for aggravated sexual battery. The trial court appears to have rejected this

factor on the basis that the judge did not understand the factor or “why you give credit to

somebody[’s] sentence because of this.” A trial court is required to consider evidence

and information offered on mitigating factors. T.C.A. § 40-35-210(b)(5). “The sentence

length within the range should be adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” T.C.A. §

40-35-210(c)(2). We conclude that the trial court erred in rejecting this statutory factor

on the basis that the trial court did not “understand” the factor or agree with the principle

behind mitigating a sentence based on this factor. While a trial court is not required to

assign any particular weight to any of the enhancement or mitigating factors and while

the court is not required to either reduce or increase a sentence based on the presence of

any enhancement or mitigating factor, the statute clearly requires the court to consider

those mitigating factors listed in 40-35-113. We caution the trial court in the future to

adhere to the statutory requirements in considering enhancement and mitigating factors.

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Nevertheless, we conclude that the trial court did not abuse its discretion in

determining the length of the sentence. This court cannot reverse a sentence based on the

trial court’s failure to adjust a sentence in “light of applicable, but merely advisory,

mitigating or enhancement factors.” Carter, 254 S.W.3d at 346. The Tennessee

Supreme Court has observed that “a trial court’s misapplication of an enhancement or

mitigating factor does not invalidate the sentence imposed unless the trial court wholly

departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. In Bise, the

trial court misapplied the single enhancement factor supporting the sentence. Id. at 708.

The sentence was nevertheless upheld because the trial court had based the decision on its

determination of the need for deterrence and other considerations in keeping with the

purposes and principles of sentencing. Id. at 708-09.

A sentence imposed by the trial court that is within the appropriate range should

be upheld “[s]o long as there are other reasons consistent with the purposes and principles

of sentencing, as provided by statute.” Id. at 706. Here, the trial court properly applied

as enhancement the Defendant’s prior history of criminal behavior and the Defendant’s

abuse of a position of private trust. The trial court gave particular weight to the fact that

the Defendant had been a father-figure to the victim since her infancy, that they had a

close relationship, and that his actions destroyed his family. The sentence fell within the

appropriate statutory range. We conclude that the trial court did not wholly depart from

the purposes and principles of sentencing in enhancing the Defendant’s sentence based on

the enhancement factors it applied.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgments.

____________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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