State of Tennessee v. Jamie L. Tice

07/18/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 12, 2022 Session Heard at Austin Peay State University1

STATE OF TENNESSEE v. JAMIE L. TICE

Appeal from the Criminal Court for Sumner County

No. 2018-CR-124 Dee David Gay, Judge

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No. M2021-00495-CCA-R3-CD

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A Sumner County jury convicted the Defendant, Jamie L. Tice, of two counts of statutory

rape by an authority figure and three counts of aggravated statutory rape, for which the trial

court imposed an effective sentence of twenty-four years with release eligibility after

service of thirty percent of the sentence in confinement. On appeal, the Defendant argues

(1) the evidence is insufficient to sustain her two convictions for statutory rape by an

authority figure; (2) the State committed a Brady violation by failing to disclose payments

made to a testifying witness and her husband; (3) the trial court erred in failing to provide

a modified unanimity instruction in Count 4, and the evidence is insufficient to sustain her

conviction for aggravated statutory rape in that count; (4) the trial court committed plain

error in improperly admitting hearsay statements of the Defendant’s husband, as well as

the argument thereof, which violated the Defendant’s right to due process and

confrontation; (5) the trial court erroneously deprived her of the right of cross-examination

on certain topics; (6) the trial court imposed an excessive sentence; and (7) cumulative

error deprived her of a fair trial. After review, we affirm the trial court’s judgments.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and JILL BARTEE AYERS, JJ., joined.

Benjamin K. Raybin, Nashville, Tennessee (on appeal); and John D. Pellegrin, Gallatin,

Tennessee (at trial), for the Appellant, Jamie Leigh Tice.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie and C. Ronald

Blanton, Assistant District Attorneys General, for the Appellee, State of Tennessee.

1

Oral Argument in this case was heard before students on the campus of Austin Peay State

University in Clarksville, Tennessee.

OPINION

This case stems from the Defendant’s inappropriate sexual relationship with the

minor victim, J.J.,2 the boyfriend of the Defendant’s daughter, over the course of nearly a

year. As a result, the Sumner County Grand Jury indicted the Defendant for five counts of

statutory rape by an authority figure.

Trial. Wendy Mallard said she first met the Defendant, who she had known for ten

years, while attending Metro Baptist Church, and they became “really good friends.” Even

after Wendy moved to North Carolina, she and the Defendant communicated frequently

through text messages, social media, and phone calls. Wendy3 said that in early November

2017, the Defendant visited her in North Carolina. The Defendant had previously told

Wendy that she had begun a sexual affair, although the Defendant never disclosed the name

of the individual with whom the Defendant was having the affair. However, during this

November 2017 visit, the Defendant finally admitted that she had been having a sexual

affair with J.J., the boyfriend of the Defendant’s daughter. Wendy said the Defendant

disclosed that her first sexual encounter with J.J. was “in December of 2016 when [the

Defendant’s] husband and children went to New York for Christmas.” The Defendant

explained that she and her husband had been fighting, that she did not want to go on the

trip, and that she had asked J.J. to spend the night with her, stating that “they had sex many

times that night and again the next morning.” The Defendant said that the sex she had with

J.J. was “the best sex she’d ever had” and that she had “multiple orgasms[.]” The

Defendant then admitted that J.J. was fourteen years old when they first started having sex

in December 2016 and that J.J. was currently fifteen years old. Wendy said the Defendant’s

demeanor when discussing her sexual relationship with the fourteen-year-old boy was

“giddy, very excited[,] and happy[.]”

During this visit, the Defendant also told Wendy about the first time she kissed J.J.,

which occurred when the Defendant, the Defendant’s children, J.J., and another woman

were in a car, and J.J. “was discussing kissing[her daughter.]” The Defendant said she told

J.J., “[Y]ou have to go through me and kiss me before you can kiss her,” and J.J. “said

okay and he did.” The Defendant said that J.J. later apologized for kissing her, and the

Defendant sat next to J.J. on the couch, “cupped his face with her hands and had him look

her in the eye and . . . said, ‘It’s okay, I wanted you to.’” The Defendant said her

relationship with J.J. “progressed from there.”

2

It is the policy of this court to identify minor victims and their family members by their initials

only.

3

Various witnesses share the same last name or are related throughout this opinion. We will refer

to these individuals by their first names to distinguish them, and we intend no disrespect in doing so.

-2-

Wendy stated that the Defendant told her she would get time alone with J.J. by

“pick[ing] him up and tak[ing] him places or through their youth trip . . . on the retreats

that they would go on[.]” She also said that J.J. would spend the night at the Defendant’s

home, and the Defendant “would go downstairs when everybody was asleep” to spend time

with J.J. The Defendant said that one night, while her younger daughter was asleep on the

floor in the living room, the Defendant and J.J. “were making out beside her [o]n the floor.”

Wendy asked what she would have done if the Defendant’s daughter woke up, and the

Defendant insisted that her daughter would not have awakened because she was fast asleep.

In addition, Wendy said the Defendant told her that she had sent J.J. photographs of

her “in her lingerie or bras[.]” She also asked Wendy to take photographs of the Defendant

in her lingerie during the visit, but Wendy declined. During this visit, the Defendant stated

that J.J. was “well endowed” and admitted to Wendy that she had sex with J.J. in several

places, including the Defendant’s home, J.J.’s home, in a car, and in hotel rooms. The

Defendant asserted that she and J.J. had sex in “every room of her house[,]” and that the

number of times they had sex was “[t]oo many to count.” Although Wendy “spent 24

hours” trying to convince the Defendant of how wrong this sexual relationship was, the

Defendant did not see J.J.’s “age as being a problem.” The Defendant also disclosed that

she did not use birth control and that she believed she was pregnant with J.J.’s baby. The

Defendant said she and J.J. had been “discussing names for the baby” and the Defendant

said that “if he w[ere] 18[,] she would run off and marry him” but J.J. “would have to be

an adult, have money, [and] be able to take care” of her. Wendy noted that “[f]rom the

moment [the Defendant] got there until the moment [the Defendant’s] husband came,” the

only thing the Defendant would talk about was J.J. Wendy told her husband, Tommy

Mallard, about the Defendant’s sexual relationship with J.J., and he agreed that they had to

tell someone.

Wendy also talked to her friend Dawn Lesueur about the Defendant’s sexual

relationship with J.J. Because the Defendant only talked about having sex with J.J. during

her November 2017 visit, Wendy did not believe that the Defendant would ever end the

relationship. Wendy said that she, Dawn Lesueur, and Eric Lesueur, Dawn’s husband, had

a conference call and decided to have the Defendant’s husband, Brian Tice, travel to North

Carolina so the Defendant could tell her husband about J.J., so he could handle the

situation. Wendy said that Eric Lesueur bought a plane ticket to North Carolina for Brian

and drove him to the airport and that Tommy Mallard picked up Brian from the airport in

Charlotte.

When Brian arrived at the Mallard’s home in North Carolina, the Defendant

appeared to be “in shock.” Wendy described what happened next:

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[The Defendant] got up and ran to one of my rooms in the house and shut the

door. And Brian was just sitting on the couch. He had a—my husband—he

had told my husband “I think I know what this is about. It’s about [J.J.], isn’t

it?” And my husband said, “You need to talk to [your wife].”

Wendy opened the door of the room where the Defendant was hiding, and when the

Defendant gave her an angry look, Wendy told the Defendant that she could not expect her

to ignore the information the Defendant had shared about J.J. Wendy and her husband

allowed Brian to talk to the Defendant in private, but they could “hear crying, yelling, stuff

like that.” When Wendy and her husband saw them again, the Defendant and Brian asked

the Mallards to “let them settle this, go home, work on their marriage, forget it ever

happened.” When Wendy asserted that J.J.’s parents needed to know what happened, the

Defendant said, “Wendy I can’t. I’ll go to prison.” Wendy replied that she was sorry but

J.J.’s parents needed to know, and she suggested that the Defendant go to the church and

allow their pastor to bring J.J.’s parents in to act as a mediator. Wendy said the Defendant

and her husband eventually left her home, and she had not seen them since then.

Wendy said that the Defendant never told her who was the aggressor or initiator of

the affair with J.J. Instead, the Defendant told her that “it began with the kissing incident

and [the Defendant] telling [J.J.] that she wanted him to [kiss her], . . . and . . . went from

there.” Wendy said the Defendant never indicated that J.J. forced her to have sex with him.

Dawn Lesueur testified that she had known the Defendant and the Defendant’s

family for eleven years, that they attended the same church, and that she considered the

Defendant to be a “really good” friend. Dawn acknowledged that the Defendant talked

about J.J., her daughter’s boyfriend, “a lot.” She stated that J.J. spent “quite a bit” of time

with the Defendant and that the Defendant had “mentioned several times that [J.J.] thought

of her as a mother” and that J.J. “wished . . . he had a mother like her.” Dawn stated that,

prior to November 2017, the Defendant “said that Brian[, the Defendant’s husband,] “was

jealous of [J.J.] and [J.J.] being around.” The Defendant disclosed that Brian “had seen

some texts . . . he may not have approved of” that were causing “problems with their

marriage.” When the Defendant made these statements, Dawn did not know the Defendant

was having a sexual relationship with J.J.

Dawn stated that the Defendant “was one of the leaders in the youth and helped in

the youth group” at Metro Baptist Church, that the Defendant “went on the youth trips”

with the church, and that the Defendant stayed with the youth “every Wednesday night

when she could.” She explained that youth leaders at the church would “oversee the

kids[,]” to ensure that no one got hurt, provide “spiritual leadership” and “guidance,” and

would be someone the kids could “talk to[.]” She said the youth leaders were “there as an

adult, . . . just a teacher, leader.”

-4-

Dawn explained that after having the conference call with her husband, Eric

Lesueur, and the Mallards regarding the Defendant’s conduct with J.J., they all decided to

purchase Brian Tice a plane ticket to North Carolina, so that he would know what was

happening and so that J.J.’s parents could be informed. She said that after the Defendant

and her husband returned home from North Carolina, she did not see them again. Dawn

explained that her husband Eric eventually contacted a man he trusted from church, who

then informed church leadership about the relationship between the Defendant and J.J.

When she was asked why her family and the Mallards did not immediately contact the

police, Dawn said they wanted the Defendant’s family to go to J.J.’s family directly and

“not have to bring the police or the church” into it; however, she acknowledged, “[W]e just

didn’t know what we were dealing with.” She said her husband finally disclosed the

Defendant’s inappropriate conduct because it appeared that the Defendant and the

Defendant’s husband were not going to tell J.J.’s parents.

Eric Lesueur testified that he had known the Defendant and her family for six or

seven years. After learning that the Defendant was having sexual relations with J.J., a

minor, he purchased a plane ticket for Brian Tice, the Defendant’s husband, and then woke

him up very early that morning to drive him to the airport. Mr. Lesueur described the

conversation that he and Brian Tice had on the way to the airport:

I didn’t really want to tell him what was going on. I wanted [the Defendant]

to be the one to deal with it. But [Brian] kept asking me on the way to the

airport what this was all about and, you know, I just kept assuring him [the

Defendant] was safe, he just needed to get there. And he kept asking, and he

finally had asked me was [his wife] having an affair, and I told him that she

was or it was thought that she was.”

Eric explained his interaction with Brian Tice later that afternoon:

[Brian] had called me later that day. Seems like it was that Saturday

afternoon. He was there [in North Carolina], and he had asked me not to say

anything to anybody, they were working it out, that—you know, [J.J.] was

going to be out of their life and this, that, and the other, and just give them

some time. I said okay, but I told him when I put him on the plane and at

that time that he needed to take this to the church immediately.

Eric said that when Brian Tice and the Defendant never disclosed the Defendant’s

improper relationship with J.J. to the church, he contacted a church member, Mike

England, who was a retired law enforcement officer because he knew England “would be

familiar with the law and how to act appropriately.” Thereafter, England contacted the

church and reported the issue with the Defendant and J.J. Eric said that prior to this

-5-

incident being reported, the Defendant “volunteered a lot” at the church and was involved

in “activities, trips, functions, probably even substituted at the school at times or helped

out.”

Ryan Hill, the assistant pastor at Metro Baptist Church and a teacher at the church’s

private school, Metro Christian Academy, testified that in November 2016, when he was

first hired as the youth pastor, the Defendant was already one of the youth leaders at the

church. Hill explained that a youth leader’s responsibilities included teaching the kids in

Sunday school and giving Bible lessons, helping “with crowd control” on Wednesday

evenings, and going on retreats and attending activities to help “watch over the teenagers.”

He said at church camp, the youth leaders “chaperone[d]” the kids, with the “female

chaperones” supervising the “teenage girls on their trip” and the “male[ chaperones]”

supervising “the teenage boys on the trip.” Hill said that the Defendant was one of three

chaperones at church camp that took place from June 26, 2017, through June 30, 2017, and

that J.J. also attended this church camp. On July 7, 2017, Hill confronted the Defendant

regarding J.J. and removed her as a youth group leader.

Hill stated that the Defendant was a substitute teacher in the preschool, elementary

school, and high school, and she worked in the lunch room at Metro Christian Academy.

The Defendant’s schedule and time cards from 2017 were admitted into evidence. In

addition, J.J.’s transportation logs at the private school from the 2016-2017 and the 2017-

2018 school years were admitted. Hill said that the Defendant was added as an authorized

person to check out J.J. in 2016, and that the Defendant continued to be an authorized

person who could check out J.J. from school in 2017 and 2018. Hill acknowledged that

these sign in/sign out sheets showed that the Defendant only checked J.J. out two or three

times. However, he said these sheets would not reflect the number of times that the

Defendant drove J.J. home from school.

Hill asserted that on November 8, 2017, he contacted the Goodlettsville Police

Department after a deacon in the church said he “had been told that one of [the church]

members was having a sexual relationship with a teenager.” Hill said he spoke to the

Defendant briefly on November 8, 2017, when the detectives came to the church to

interview J.J. and the Defendant. When the detectives arrived, Hill pulled J.J. out of class,

brought him over to the church building, and left him with the detectives. By the time J.J.

was finished meeting with the detectives, B.J., J.J.’s uncle, had arrived at the church. After

meeting with the detectives, J.J. spoke to Hill with the detectives’ permission, and then Hill

brought J.J. to where his uncle was in the building, and they returned home. Hill said he

saw the Defendant after she talked to the detectives, and the Defendant was in “disbelief”

and was “upset.” Hill stated that after that day, the Defendant no longer worked at the

church or the church’s school.

-6-

On cross-examination, Hill said that based on the school’s records, the Defendant

worked as a substitute teacher in one of J.J.’s classes in March of 2017. He said he thought

the Defendant might have been a substitute teacher in “more [of J.J.’s classes]” but he could

not say “a hundred percent.” Hill said that the school records showed that on August 16,

2016, the Defendant checked J.J. out from school, and on February 2017, the Defendant

checked J.J. out of school to go to a singing competition. Hill acknowledged that J.J. had

withdrawn from the church’s school during the period from August 2016 through

November 2016. Hill agreed that on the transportation sheet, the Defendant was listed as

someone who could check J.J. out of school “only with permission.”

Kristina Evans testified that she lived across the street from J.J. and his family and

that her teenage son was good friends with J.J. They invited J.J. to attend the youth group

at Metro Baptist Church, and J.J. continued to regularly attend this youth group. Evans

worked in the kitchen at Metro Christian Academy, the private school associated with

Metro Baptist Church, and she knew the Defendant, who was a member of the church. She

said that she considered the Defendant a friend and acknowledged that the Defendant had

allowed her and her son to live at the Defendant’s home with the Defendant’s family for a

period of time. She said she never saw any inappropriate activity between the Defendant

and J.J.

On cross-examination, Evans stated that she never saw J.J. make any advances

toward the Defendant. She denied seeing J.J. pop the Defendant’s bra strap. She also said

she never heard J.J. make any inappropriate comments toward the Defendant.

Deana Campbell testified that she attended Metro Baptist Church with the

Defendant. Campbell said that she had held a leadership position at the church as a youth

leader and Sunday school teacher for the last six or seven years. She explained that as a

youth leader, she supervised the children. Campbell said that all the youth leaders were

responsible for ensuring that the kids were “paying attention and not getting out of

control[,]” making sure the kids were “staying in the gym, doing what they’re supposed to

be doing,” making sure the kids on Sundays were going “from one building over to the

next for [the church] service.” She said that at church camp, the youth leaders were

responsible for making “sure the kids [we]re doing what they’re supposed to be [doing]”

and “not getting out of line.” Campbell stated that she was a youth leader when the

Defendant was also a youth leader at church.

Campbell said she had known the Defendant and the Defendant’s family for eight

or nine years. She stated that she and the Defendant routinely attended church camp

together, watched over the kids on Wednesday nights, and had some of the same friends.

-7-

Campbell affirmed that J.J. attended church and the youth group when she was a

youth leader at Metro Baptist Church, which was from late 2016 through November 2017.

She noted that at church, the Defendant “definitely would hang around with her daughter

and [J.J.] a lot.” Campbell recalled “a couple of odd interactions” that occurred at church

camp. First, she said the Defendant had rented a golf cart at camp because of her health

issues, and the Defendant made her son, who had a hurt back, get off the golf cart, so that

J.J. could ride with her on the golf cart. Second, Campbell noted an occasion when she

and the Defendant had gone to the gas station “while the kids were doing . . . the camp

organized activities[,]” and the Defendant “was very adamant when she bought a Monster

Energy drink that we not tell [J.J.], that [J.J.] was worried . . . that something would happen

to her because of [her] heart condition,” which Campbell thought was “odd.”

Campbell said that after the allegations regarding the Defendant came to light, she

saw the Defendant in the bathroom at one of her son’s basketball games. The Defendant

told Campbell that it seemed like she was “mad at her,” and Campbell replied, “[Y]ou

know, these parents dropped their kids off to us week after week [at church] and they

trusted us, and you betrayed that trust.” The Defendant told Campbell not to believe

everything she heard and then complained that “people were treating her badly.” Campbell

responded, “[E]ven if . . . the smallest thing happened, the thing is, . . . we are adults and

it’s our responsibility to say no.” Campbell said that, prior to these allegations, the

Defendant was generally very well thought of in the church.

J.J., the minor victim, testified that he was seventeen years old and in eleventh grade

at the time of trial. He said he had lived with his aunt and uncle, K.J. and B.J., since he

was two years old. J.J. said that in the summer of 2016, right after he finished eighth grade,

he was invited to attend Metro Baptist Church. J.J. stated that he began to regularly attend

Metro Baptist Church and participated in many of the youth group activities there. During

the summer before he started ninth grade, J.J. started dating the Defendant’s daughter. In

the fall of 2016, J.J. started school at Davidson Academy but quickly transferred to Metro

Christian Academy because that was where the Defendant’s daughter went to school.

J.J. said that at some point during the fall semester, he “got removed” from Metro

Christian Academy and was “[h]omeschooled” at B.J.’s and K.J.’s office in downtown

Nashville. He said that Evans’s son also withdrew from the church’s school at the same

time and was homeschooled with him. J.J. said that his aunt would take him to the office

for homeschooling in the mornings and that most of the time the Defendant would pick up

him and Evans’s son from the office and bring them back home in the afternoons, although

sometimes it was just the Defendant and J.J. on the rides home in the afternoons. J.J. said

that during these car rides home, he “began to see [the Defendant] as a mother and got

really close to her.” He stated, “I would talk to her about things that ha[d] happened in my

life, like me coming to live with my aunt and uncle, why I came and lived there, my mom

-8-

and dad, my mother not being around, . . . just the struggles of me growing up and kind of

the battles that I had to fight.” He added, “So [the Defendant] became basically—I would

sometimes—I’d even call her my mom—just a mother to me.” He said that during this

period of time, he was dating the Defendant’s daughter. J.J. stated that he was “in love

with” the Defendant’s daughter, who was his “everything.” He said that when he first

started going to Metro Baptist Church, the youth leaders who supervised the teenagers were

Deana Campbell, the Defendant, and a guy named “Ryan,” who was also a pastor.

J.J. said that his relationship with the Defendant changed when he spent the night

with the Defendant’s son at the Defendant’s home. He said that Evans’s son spent the night

as well, and the three of them played video games in the living room. He said that earlier

that day he had talked to the Defendant about his “past” and his “life” and “was just getting

really close with her.” He said the Defendant had “massaged [his] back[,]” had “made

[him] feel . . . at home” and “just comfortable[,]” and had brought him “food.” J.J. said,

“[L]ater that night after everyone was asleep [the Defendant] came down and we got close

and she started making out with me[.]” He explained that the Defendant “kissed” him and

“grab[bed] his crotch” as he was lying on the floor in the living room because that was

where the boys were sleeping. J.J. said, “[T]hen we went to the kitchen and that was . . .

when [the Defendant] performed oral sex on me, and that’s the first time things happened.”

He said the next time he had sexual contact with the Defendant was “probably at her house”

because “it happened a lot.”

J.J. said that the first time he had sexual intercourse with the Defendant was at the

Defendant’s house “on a weekend” when the rest of her family was somewhere else. He

noted that Evans’s son was also there, although he was “oblivious to the whole thing”

because he “had his headset on” and was “playing [video]games” all the time. J.J. said that

the Defendant brought him to her bedroom and “started stripping down” and they “had sex

in her bed.” He said that they used contraception during that incident.

When asked about the next time he had sexual relations with the Defendant, J.J. said

he did not remember specifically “because it happened so often.” He said, “[The

Defendant] would take me in her van a lot of times” and “would tell her husband that she

was going somewhere where she wasn’t actually going” and “would go drop off her kids

at her dad’s house.” J.J. said the Defendant drove down “this dead-end road” and “stopped”

and J.J. “got in the back of the van” and they “had sex again.” When they were done, the

Defendant tried to start her van but it would not start. J.J. said that the Defendant “couldn’t

call her husband because she didn’t want her husband to know we were down this road

alone” and that he “didn’t want to call anyone.” J.J. said the Defendant “went door-to-door

knocking for people to come help her . . . get her car started.” A man answered his door

and brought jumper cables, and the Defendant told this man that J.J. was her son and that

they were “looking at the house that was for sale that was at the end of this dead-end road.”

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J.J. said “it would happen a lot at” this “road” that was “right behind [the

Defendant’s] house.” Thereafter, the State and J.J. had the following exchange:

State: And you talked about this road that was behind [the

Defendant’s] house. What happened at the road behind her

house?

J.J.: I mean, she brought me there to have sex multiple times.

State: When you said “have sex,” different kinds of sex?

J.J.: Oral—all of—everything. Oral sex, everything.

State: Did you have intercourse during those periods of times?

J.J.: Yes, sir.

J.J. said that on a different occasion, he and the Defendant went to a hotel in

Rivergate behind the Hooters where they had sexual relations. He said that when this

incident occurred, he was still dating the Defendant’s daughter.

J.J. said that during a different incident, he and the Defendant engaged in bondage.

He said that the Defendant had brought him and her son to the airsoft course. He said,

“[S]he kept bugging me and bugging me to go out to the car with her, and I did what she

wanted me to do[,] and I went out to the car.” J.J. said that the Defendant “brought rope

from her house” and she asked him to tie her up so he “did it.”

When asked when was the last time he had sexual relations with the Defendant, J.J.

said he did not know “the exact date” but it was “right around when all this came out” in

the fall of 2017. He said that this incident occurred at the Defendant’s house in her

bedroom. She said that the Defendant “would call [his] aunt a lot and . . . text [his] aunt

just these long paragraphs about . . . how she was going to get me over to her house, and

she did that [on this occasion].” He remembered that the Defendant called him on his

phone while he was mowing the grass and told him that he was coming over because she

had just talked to his aunt and uncle about it, and he said, “okay, whatever.” When he got

to the Defendant’s home, the rest of her family was at a football game. J.J. said that

whenever he saw the Defendant, she would make sure her daughter was either at work or

at a friend’s house. He said the Defendant would “push [her daughter] out of the house,

basically, when I would come over.”

- 10 -

When J.J. was questioned about whether he always used contraceptives when he

had sex with the Defendant, J.J. said, “I tried to use a condom[,] and she would not let me.”

He said there was a period of time in which the Defendant told him that she was pregnant

with his child. He said he started “freaking out” and “yelling at her” and told her that this

was her fault “because a lot of [the] time she would just put the blame on me.” He said he

“couldn’t think straight” when she said she was pregnant and that when he “went to

school[,]” he “couldn’t do anything[,]” and “[i]t was just really scary.” He said the

Defendant talked to him about baby names and told him she wanted to marry him. J.J.

said, “One night she said she wanted to be with me when I was 18 years old, and I told her

she was crazy.”

J.J. stated that on the afternoon of November 8, 2017, Ryan Hill came into his

classroom and asked him to come with him. They went over to the church building and

the detectives began questioning him about whether things were happening with the

Defendant, and he “told them no.” J.J. said, “I was scared, so I lied. I didn’t know what

to do. I just really—I just felt guilty and ashamed and broken.” He said that when he

talked to the detectives later on, he “finally broke down and told them what was really

happening.” J.J. said that after he spoke to the detectives and was heading home, the

Defendant began texting him, “telling him to delete everything on [his] phone between

[them], pictures, anything that she had sent me” and J.J. “did what she told [him] once

again[.]”

J.J. said that at some point after November 8, 2017, the Defendant’s daughter

brought her cell phone to him, told him that it was her mother, and instructed him to go to

the gym bathroom to talk to her. He said he complied, and the Defendant and her husband

were on the phone, and they asked him what he told the detectives, and J.J. said he did not

tell the detectives anything because “it was finally [his] time to where [he] didn’t really

have to . . . have her in [his] life anymore.”

J.J. stated that he left Metro Christian Academy and went to a “therapeutic boarding

school” in Missouri in early February 2018 to work “on a lot of things” that had happened.

He said that from November 8, 2017, to early February 2018, he continued to communicate

with the Defendant’s daughter. However, when he returned home from his boarding

school, he called her and “told her [he] was done” and “couldn’t do it anymore.” He said

that call was the last time he spoke to her.

J.J. recalled a time, when he was first dating the Defendant’s daughter, that Kristina

Evans was driving them, the Defendant was in the passenger seat, and J.J. and the

Defendant’s daughter were in the backseat of the car. He said the Defendant asked him to

give her a kiss in front of her daughter. The Defendant said, “[O]h, just a pop kiss. I’m

like your mom.” He said “[the Defendant] made it seem like it was going to be okay. And

- 11 -

it was weird, but I did it, and [the Defendant’s daughter] looked at me like I was crazy and

then was just arguing with her mom in the backseat, and then I kind of just looked out of

the window not really sure what was going on.” J.J. said, “I think that situation is kind of

how it like kicked off, how things started physically.” J.J. said he later apologized to the

Defendant and she told him “not to apologize . . . like there was nothing wrong with what

happened.”

On cross-examination, when asked if he ever said anything to the Defendant’s

daughter like her mother was hot, J.J. said, “I don’t think so.” When defense counsel asked

him if the Defendant’s daughter would be lying if she said that, the Defendant replied,

“Probably. I don’t think [the Defendant’s daughter] would lie to me.” J.J. then

acknowledged that he knew a girl named Mackenzie and a girl named Alana. The State

asked to approach the bench, and the trial court ultimately asked that the jury exit the

courtroom.4 When the jury returned, the trial court told the jury that the State had “objected

to a line of questioning” and after conducting a hearing out of the jury’s presence, the trial

court sustained the State’s objection.

J.J. agreed that when he was initially interviewed by the detectives, he told them

that nothing was going on between the Defendant and him. He said that the detectives told

him the Defendant admitted to having a sexual relationship with him, and he told the

detectives that they were lying. J.J. asserted that it was the Defendant’s idea to tie her up

in the van, but he denied that the Defendant got upset and cried afterward. J.J.

acknowledged that there were other times that the Defendant cried after they had sexual

relations.

J.J. stated that he was going to a boarding school in Missouri that was trauma-based.

He acknowledged that there were other things in his life from the time that he was very

young that caused him trauma.

B.J. testified that he was J.J.’s uncle and had been his guardian since J.J. was two-

and-a-half years old. B.J. said sometime after J.J. began attending school at Metro

Christian Academy in 2016, he and his wife, K.J., began attending Metro Baptist Church.

They became aware that J.J. was dating the Defendant’s daughter, who also attended that

church. He noted that the Defendant and her family were the first people to introduce

themselves to them at a church function. He was aware that the relationship between J.J.

and the Defendant’s daughter continued for a while and that the Defendant’s daughter

would sometimes come over to their home.

4

The contents of this jury-out hearing are detailed in Section IV of this opinion.

- 12 -

B.J. said that he and K.J. decided to add the Defendant to their transportation list at

school because she often brought J.J. home in the afternoons and frequently drove him to

choral performances.

On November 8, 2017, B.J. was driving into Nashville from Chattanooga when

Ryan Hill, the associate pastor at the church, called him and said that he needed him to

come to the church immediately because there had been an issue. When B.J. asked what

had happened, Hill said he could not tell him that he would need to speak to the detectives.

Upon arriving at the church, B.J. was introduced to Detective Mills, who asked him if he

knew the Defendant, and B.J. said he did. Detective Mills then asked if he knew that there

had been a sexual relationship between J.J. and the Defendant, and B.J. replied,

“Absolutely not.” B.J. said J.J. later gave him information that made him believe that J.J.

and the Defendant were involved. As a result, B.J. called the Defendant while the

detectives were present. The recording of B.J.’s phone call with the Defendant was played

for the jury. B.J. remained at church after this phone call and later saw the Defendant at

church, although he did not talk to her.

B.J. said that later that night, the Defendant and her husband, Brian Tice, came to

his and K.J.’s home. He said that during the ensuing conversation, the Defendant admitted

that she and J.J. “had an affair.” As a result of the allegations against the Defendant, B.J.

said that he and his wife decided to take J.J. out of Metro Christian Academy and send him

to a boarding school in Missouri.

On cross-examination, B.J. acknowledged that J.J. had endured some trauma when

he was very young. He admitted that J.J. had been exposed to things that no little child

should be exposed to. Defense counsel said, “And part of that is a result of both his parents

were sex addicts?” The State objected on the basis that there had been no testimony

regarding that issue at any point in time during this trial, and the trial court sustained the

objection. Defense counsel approached the bench and asked to make an offer of proof, and

the trial court requested that the jury leave the courtroom.5 When the jury returned, the

trial court stated that it had sustained “the objection regarding [J.J.] being exposed to sex

addicts as parents” and that it was “striking that from the record.” The court instructed the

jury “not to . . . consider anything about that particular statement.”

When cross-examination resumed, B.J. said that J.J. was in a bad situation and came

to live with him and his wife when J.J. was a small child and that J.J. had been with them

ever since. B.J. said that before these allegations came to light, his family was close to the

5

The substance of this jury-out hearing and the defense’s offer of proof are found in section V of

this opinion.

- 13 -

Defendant and her family. He also said that prior to these allegations, the Defendant was

a well-respected person at church.

K.J. testified that she and B.J. became J.J.’s legal guardian when J.J.’s father and

girlfriend at the time were having substance abuse issues. She said the court asked them

to take custody of J.J. because it could not allow J.J. to live with either of his biological

parents.

K.J. stated that during the summer of 2016, which was before J.J.’s ninth-grade year,

J.J. began attending Metro Baptist Church. K.J. said that she and B.J. first went to that

church for a potluck in September or October 2016, when J.J. was in ninth grade, and they

met the Defendant and the Defendant’s family. K.J. said the Defendant was a

“longstanding member of the church” who was a substitute teacher at the church’s school

and was involved in the church’s youth group. She said the Defendant “would chaperone

field trips” and was involved in the youth group activities on Wednesday nights.

K.J. affirmed that when J.J. and Evans’s son were being homeschooled at their

office downtown, the Defendant would sometimes pick up the boys and take them home.

She said that during this homeschooling period, J.J. would see the Defendant and her family

at church on Sundays and “would go home with them after . . . church” and if the

Defendant’s family did any activities, they would always invite J.J. along.

K.J. stated that in January 2017, which was still J.J.’s freshman year, J.J. was

allowed to return to Metro Christian Academy. She said that J.J. and Evans’s son

apologized to the church staff and asked for forgiveness for posting a video of themselves

smoking marijuana on social media, which was why the school initially required them to

withdraw.

K.J. said that when J.J. turned fifteen years old in January of 2017, the Defendant

threw him a birthday party. She said that because the Defendant was the mother of J.J.’s

girlfriend, she and B.J. trusted the Defendant with J.J. K.J. said that her concern when J.J.

was over at the Defendant’s home was that she did not want the Defendant’s daughter,

J.J.’s girlfriend, to be around, and K.J. never thought she needed to be concerned about J.J.

being around the Defendant. She said the Defendant “always assured [her] that [the

Defendant’s daughter] was over at a friend’s house and that the reason she was inviting

[J.J.] to spend the night was that her son, [], [Evans’s son] and [J.J.] were all going to stay

there and play video games all night.” K.J. also said that she trusted the Defendant because

she was a youth leader at church and had supervised youth trips with the church. K.J. said

that the Defendant “always volunteered” to take J.J. with her on the church youth trips, and

she said she “felt very comfortable with her doing so because [the Defendant and her

family] were so involved with the church and the school[.]”

- 14 -

K.J. asserted that she added the Defendant to the pick up list from school in February

2017, which allowed the Defendant to sign J.J. out of school early. She also listed the

Defendant as an authorized person to pick up J.J. from school on May 17, 2017, which

established the transportation list for the 2017-2018 school year. K.J. stated that from

January 2017 until May or June 2017, J.J. was with the Defendant and her family at least

two days after school each week and on Sundays at least twice a month, if not more. She

noted that the Defendant always called her to make arrangements for J.J. to spend time

with her family and that J.J. never made such requests. The Defendant would often call to

say that she was helping Kristina Evans with carpool because Kristina was working, and

the Defendant would frequently bring J.J. back from church on Wednesday nights. The

Defendant also invited J.J. to go home with them after church and then drove J.J. back and

forth to church on Sunday nights. K.J. said that J.J. spent the night at the Defendant’s home

twice a month and that the Defendant made the arrangements for him to do this. Often, the

Defendant would bring J.J. home from school without Evans’s son.

K.J. said that one of J.J.’s chores was to clean the horse’s stalls, and the Defendant

would even help him with this. She noted that often the Defendant would want J.J. to do

something, and when K.J. told her that J.J. needed to do his chores first, the Defendant

would say that she and her kids would go over to Kristina Evans’s home, which was right

across the street, until J.J. finished with his chores. K.J. said that when she insisted that

J.J. needed to get his chores done and that they would call her later, the Defendant “would

say, no, we’ll just wait.” K.J. stated that sometimes the Defendant would say, “[W]hy

don’t I just come over and help him and he can finish quicker,” and then the Defendant

would “help him muck out” fifteen horse stalls, which was “a lot of work.” Sometimes the

Defendant’s children would be with her when she did this but sometimes she would be

alone with J.J.

Prior to the summer of 2017, K.J. told the Defendant that she and B.J. thought J.J.

was spending too much time over at the Defendant’s home, and the Defendant “said that

her husband, Brian, had said the same thing to her before, that [he] felt that . . . she was too

involved in the teenagers and what was going on with the teenagers in that group, and it

wasn’t the first time she heard it, and she understood and she would back off.” K.J. said

that the Defendant did back off for “a week or so[,]” and J.J. would go to the Defendant’s

home one day a week rather than two or three days a week, and the Defendant would not

ask for him to come over as much, “but then it would start back up.” During this time

period, K.J. had no idea that there was a sexual relationship going on between the

Defendant and J.J., so she continued to allow J.J. to spend some time with the Defendant’s

family. K.J. noted that during the summer of 2017, after J.J.’s ninth grade year, the

Defendant was a chaperone on a church retreat that J.J. attended.

- 15 -

K.J. said that in late October 2017, during J.J.’s tenth grade year and a few weeks

before the allegations came to light, K.J. saw a text message or Instagram message on J.J.’s

phone and confronted the Defendant about it. The Defendant acknowledged that she had

sent the text, which “basically said that I love you and I can take you to places no [one]

else could take you to and you need to allow me to do this for you, but your behavior is

causing me not to want to be around you.” K.J. said that this text “sounded [like] a

boyfriend-girlfriend relationship and [was] totally inappropriate.” At that point, J.J. had

the Defendant stored in his phone as “Mother.” When K.J. asked J.J. about this text

message, J.J. said that the Defendant was “crazy” and that she needed to call her and ask

her because he could not explain why she sent it. When K.J. confronted the Defendant

about this text message, the Defendant claimed “she was trying to enrich [J.J.]’s life in the

Lord and she was trying to take him to higher places in God and find himself spiritually

and become a more spiritual person[.]” The Defendant asserted that K.J. had

“misinterpreted” the text, and the Defendant denied that there was anything inappropriate

going on between her and J.J.

On November 8, 2017, K.J. received a phone call from B.J. asking her to come to

Metro Baptist Church. She also was present during a controlled call that B.J. made to the

Defendant. K.J. said that she got on this call at the end of it and spoke to the Defendant.

K.J. said that the evening of November 8, 2017, the Defendant and her husband

came over to their home. K.J. wore a wire and recorded their conversation, which was

played for the jury. During this recording, the Defendant asserted that the sexual

relationship she had with J.J. was “consensual” and that J.J. “never manipulated” or

“coerced” her “to do anything.” The Defendant also said the relationship with J.J. began

with “flirting” and “little glances and touches.”

On cross-examination, K.J. acknowledged that the Defendant was listed on the sign

out sheet at school as being authorized to pick up J.J. early with permission, which meant

that the Defendant had to call K.J. each time she would pick up J.J. She agreed that often

the Defendant was picking up J.J. along with her own children and Evans’s son at the same

time. However, she asserted that when the Defendant brought J.J. home from school, the

Defendant did not have to get permission from her before doing this. K.J. conceded that

J.J. sometimes had a problem with lying.

Detective Elizabeth Mills of the Metropolitan Nashville Police Department testified

that she was assigned to investigate allegations of possible crimes committed by the

Defendant. She said that the Goodlettsville Police Department was originally notified by

Metro Baptist Church about an adult having sex with a juvenile and once they determined

that the church was in Davidson County, then Detective Mill’s sergeant assigned her the

case.

- 16 -

Detective Mills said that on November 8, 2017, she went to the Metro Baptist

Church after she talked to Ryan Hill about the information he had. Upon arriving at the

church, Detective Mills interviewed J.J., who initially denied a sexual relationship with the

Defendant and said he did not feel comfortable talking any further without his guardians,

K.J. and B.J. Detective Mills acknowledged that J.J. initially told her she was lying about

the allegations against the Defendant. However, when Detective Mills talked to J.J. later,

J.J. changed his story, which led her to interview the Defendant. Prior to interviewing the

Defendant, Detective Mills spoke to B.J., and she placed a recording device on his cell

phone and had B.J. call the Defendant. When Detective Mills interviewed the Defendant,

the Defendant stated that she and J.J. were “very close” but the Defendant denied several

times that she had a sexual relationship with J.J.

At the end of this interview, Detective Mills and Detective Hoffman went back to

their office, and Detective Mills believed that the Defendant might try to contact J.J. and

his family, so she went to K.J. and B.J.’s home. When she arrived there, Detective Mills

realized that the Defendant was already at their home, so she provided a recording device

for K.J. Detective Mills left their home, and K.J. subsequently recorded a conversation

between her, B.J., and the Defendant.

Detective Mills said that as a result of her interview with J.J. at the church, she

obtained information indicating that sexual conduct between the Defendant and J.J. had

taken place in Davidson County and in Sumner County. Consequently, Detective Mills

coordinated with Detective Hampton in Sumner County regarding the rest of this case. She

gave Detective Hampton the information she gathered as a part of her investigation, as well

as the controlled call and the recorded conversation that took place at K.J. and B.J.’s home.

Detective Mills stated that during her investigation, she also talked to Wendy Mallard, who

provided some information that was vital to her investigation of this case.

On cross-examination, Detective Mills stated that, as a part of her investigation, she

discovered that the Defendant’s sexual relationship with J.J. started in December 2016,

when J.J. was just fourteen years old. She said that J.J. turned fifteen years old in January

2017, and that the sexual relationship continued until October of 2017. Detective Mills

acknowledged that in the initial interview, J.J. was pretty adamant in his denials regarding

a sexual relationship with the Defendant. She acknowledged that J.J. accused her of lying

when she told J.J. that the Defendant had admitted to an inappropriate relationship with

him.

The Defendant’s daughter testified that she first met J.J. when he began attending

Metro Christian Academy in late August 2016 and began attending her church. She said

that she and J.J. dated for a year and a half. She stated that the Defendant had permission

- 17 -

from J.J.’s parents to drive J.J. home after school and that most of the time, she was also in

the car with them on the way home.

The Defendant’s daughter recalled an incident when J.J. and the Defendant kissed

in the car after they all went to a movie. She said that she, Kristina Evans, and Kristina’s

son were also in the car when this incident occurred. The Defendant’s daughter said that

they “were just messing around, like joking” when it happened.

The Defendant’s daughter said that she noticed that J.J. “would be really rough with

[the Defendant], like he would kind of just wrestle with her and kind of push her around.”

She added that J.J. “would pinch [the Defendant] on her arm or on her boob” and that

“sometimes he would go up and hug her.” The Defendant’s daughter said that whenever

J.J. would do these things, the Defendant “would push him away.” She stated that J.J. often

flattered the Defendant. On cross-examination, the State asked the Defendant’s daughter

if she thought a lot of J.J., and she said, “I guess so.” She said that she thought “[a] lot

more” of her mother, the Defendant.

The Defendant testified on her own behalf. She stated that she had attended Metro

Baptist Church almost her entire life. She “volunteer[ed] in the [church’s] youth group”

after her oldest son joined that group, and she taught Sunday school and had been

volunteering in the church nursery since she was a teenager. She also volunteered during

the church’s special events and fundraisers and would help raise money for mission trips

or for the kids to go to camp. The Defendant said she had been involved in her church and

in other charitable work for years, including helping single moms get into homes. She

noted that she helped Kristina Evans find her apartment, furnish her entire apartment, and

buy food from local donations around the area. The Defendant noted that Kristina Evans

and her son had lived with the Defendant’s family for a few months after Kristina’s mother

and step-father asked her to leave their home.

The Defendant stated that the first time she was aware of J.J. being at her church

was at the youth pastor’s goodbye party that took place in August 2016, right before school

started. She said that although J.J. was at that party, she did not meet him that night. She

noted that J.J. started school at Metro Christian Academy the following Monday and that

J.J. and the Defendant’s daughter first met at school, rather than at church. The Defendant

said that on the Wednesday after school started, the youth pastor pointed J.J. out to her and

said that J.J. liked the Defendant’s daughter and that J.J. had been there for two days or so.

The Defendant said that she did not officially meet J.J. until “the end of August, beginning

of September” when the Defendant’s daughter introduced J.J. to her at church. She said

that at that point, J.J. had been attending Metro Christian Academy “for a few weeks."

- 18 -

The Defendant said that during the second week of September, she was volunteering

at the school for grandparent’s day, and J.J. “got kicked out [of school] that day.” She said

that J.J. did not return to Metro Christian Academy until January 2017. When asked about

what interaction she had with J.J. from September 2016 through the fall, the Defendant

replied, “Right at first we really didn’t have much interaction at all,” although she admitted

that the following Sunday she and the Defendant’s family first met K.J. and B.J., as well

as Kristina Evans, during a homecoming dinner at church. She said her daughter had

encouraged her to be friends with Kristina Evans, who was a single mother. She introduced

herself to Kristina and K.J. and B.J., and mentioned that J.J. and her daughter liked each

other, but she did not bring up J.J. being kicked out of the school because she did not want

to make them feel uncomfortable. After that, the Defendant said she “didn’t really see

[J.J.] much except maybe here and there when he came to church.” She encouraged both

J.J. and Evans’s son, who had been kicked out of school, to keep coming to church. At the

end of September 2016, her daughter continued to talk to her about J.J., and the Defendant

told her husband that they needed to get to know K.J., B.J., and J.J. because their daughter

seemed to “actually have feelings for [J.J.]” She said at that point, they did not know K.J.

and B.J. well, and she had only met J.J. once or twice at church.

The next Sunday, the Defendant invited J.J.’s family and Kristina Evans and her son

to lunch, and although K.J. and B.J. were not able to come, they allowed J.J. to go. The

Defendant said that “in the beginning [J.J.] didn’t come over to the house right away.”

They saw him at church and J.J. may have come to the Defendant’s home a couple of weeks

later. She acknowledged that over the next couple of months, J.J. did come to her home

some on Saturday and Sunday afternoons. At that point, J.J. was not attending Metro

Christian Academy, and he and her daughter “didn’t really see each other that much” so he

would come to her home. She said that J.J. attended her son’s football game and that J.J.

went to the movies with them one time.

The Defendant said that at the end of October or beginning of November 2016, right

before J.J. went on a trip to Montana, J.J. called her and asked if the Defendant would be

willing to talk to him about something going on with Kristina Evans and her son, who was

his friend. The Defendant agreed to talk to him, and J.J. got her phone number and “call[ed]

and text[ed] [her] from time to time.” When J.J. went on the trip to Montana, J.J. was

“texting constantly” about all the activities they were doing in Montana to the Defendant’s

daughter and the Defendant in a “group message.” She said that at some point in November

2016, J.J. came to her home, looked at the Defendant’s yearbook, and then sent a group

text to her and the Defendant’s daughter “about how hot [the Defendant] was as a

teenager[.]”

In December 2016, the Defendant said J.J. was still not back at school. She asserted

that she did not start picking up J.J. from K.J. and B.J.’s office until the last two weeks of

- 19 -

homeschool. She said originally K.J. was taking J.J. and Evans’s son to her office in the

mornings, and Kristina was picking them up in the afternoon. However, when Kristina’s

work schedule changed, she asked the Defendant to pick up the boys and bring them home.

She said that she only picked them up the last weeks of homeschool, and then only three

days a week. She said “three of the times [J.J.] wasn’t even there” because he had to get a

haircut or had a counseling appointment, “[s]o the other three times it was actually just

[Evans’s son] that [she] ended up picking up and dropping him off.”

The Defendant said that the very first thing that happened between her and J.J. was

after she, Kristina Evans and her son, and the Defendant’s daughter, and J.J. went to a

movie. At that time, J.J. and the Defendant’s daughter had already kissed, but they were

joking on the car ride home about wanting to kiss. Then the Defendant said, “[O]h boy,

well you know, [the Defendant’s daughter’s] daddy doesn’t want her dating and doesn’t

want her kissing anybody.” The Defendant then told J.J., “If you, you know, want to kiss

her, you’re going to have to kiss her daddy, . . . you’re going to have to kiss [Evans’s son]

or you’re going to have to kiss Kristina, or you’re going to have to kiss me, and it was very

much a joke and everyone was laughing.” The Defendant added, “I just had my head

turned around as I was saying it and [J.J.] just real funny, just real fast leaned up and just

pop-kissed me, and I was like, oh.” She said everybody was “kind of like, oh my gosh,

and then they all just started laughing.” She said J.J. later admitted that he probably should

not have done that, and she told him, “[W]ell, I mean, I guess, you know, it’s okay.” The

Defendant said that she was not “upset or anything,” although she did not expect J.J. to

kiss her.

The Defendant said that the second incident was when J.J. spent the night at her

house while Kristina and her son were there but the rest of her family was in New York.

She stated that she and Kristina were drinking alcohol, even though she hardly ever drank,

and that she “felt like [she] was drunk.” She said that Kristina went to bed because she had

to work the next day, and the boys were downstairs playing video games. The Defendant

went upstairs, got in her bed, and went to sleep. The Defendant described what happened

next:

I wake up to [J.J.] in my bed and he’s kissing me and trying to take

my clothes off[,] and I said—I just said, what are you doing? Stop now. I

don’t know why you’re doing this. What are you doing? He said, Jamie, I

love you. I think you’re so hot. And he just continued to kiss me and he took

my clothes off as I’m telling him, no, stop. I don’t want you to do that.

And, I, again, was very drunk, and I am trying to push him away, but

[J.J.]—I know he came in here as a 17-year-old kid today and that was two

years ago, but he was still 5-10, 175 pounds. So he’s a pretty heavy guy and

- 20 -

he was on top of me and—and he just continued to kiss me and he just

continued to take off my clothes, and I said no.

I did not get up and scream and yell and run out of the door. I didn’t

do that, I did tell him no many, many times and he—I had my legs closed

and he put his legs between my legs and spread them open, and then he got

on top of me and he—as I’m telling him no, I don’t want to, he just continues

to and he—he—and he did.

....

He did—he did put his—he did put his penis in my vagina.

The Defendant said that after that, J.J. left the room, and she “laid there” and “just cried.”

She said that up until that point, she “loved [J.J.] and he did seem like a son to me.”

The Defendant said that the next morning, while she was driving J.J. home, she

asked J.J. why he did what he did. She said that it seemed like “a switch flipped inside of

him[,]” and J.J. began “cuss[ing]” and told her she “better not tell Brian and [she] better

not tell [the Defendant’s daughter].” The Defendant told J.J. that she had never seen him

act like this, and he said, “[A]ll of that was pretend. I was just . . . acting that way so I

could get what I wanted[,] which was to f[—]k you.” She said she cried all the way back

to J.J.’s home.

The Defendant acknowledged that she had sexual relations with J.J. after that but

J.J. “started to use that [first incident] as leverage over [her].” She said that J.J. “would use

that [and hold that] over my head for everything, whether it was he wanted to do something

with [the Defendant’s daughter] or he wanted to come over to the house, or he wanted us

to do something sexually[.]”

She said that although she helped to organize J.J.’s birthday party, it was the

Defendant’s daughter’s idea to have the party. J.J. told her to ask K.J. and B.J. if he could

spend the night after the party because it was going to be late when it was over. She said

that her younger kids had stayed with her parents and the Defendant’s daughter had gone

to stay with a friend that night. When they got home, J.J. said “he wanted to have sex

again,” and the Defendant said, “[T]hat happened the one time[,] and I don’t want . . . you

to ever tell anybody about that. And . . . I won’t tell anybody about that[.]” The Defendant

said she promised him that she wouldn’t say anything, but he wanted to have sex, so they

went to “the little side road that he was talking about.” The Defendant said that J.J. was

“very demanding” and said, “You’re going to do what I’m telling you because I’m going

to tell on you and they’re not going to believe you because you’re an adult, and you’re the

one that’s supposed to make the decision.”

- 21 -

The Defendant said that although J.J. claimed that they had sexual relations forty to

fifty times, they only had sex “more around 20” times. The Defendant said,

I was caught between the worst rock and a hard place of my entire life, and I

didn’t know what to say or do, and I should have said something and really I

was just afraid. I was afraid of this because he said he would lie—he would

lie about everything.

The Defendant said J.J. never threatened to tell the police but he did threaten to tell her

daughter, Brian, K.J. and B.J., and Ryan Hill at church. The Defendant said J.J. also

threatened to have sex with her daughter. The Defendant asserted, “[W]e would have sex

and [J.J.] would say, that doesn’t ever need to happen again . . . and I would say, okay,

never again. I don’t want that to happen again either, and I said, just stop coming to me . .

. . Please stop coming to me for sex.” The Defendant said that J.J. “would go back and

forth between these personalities and these highs and these lows of I love you, I love you,

I love you, I hate you, I hate you, I hate you. And it was . . . a daily thing.” She said that

J.J. coerced her every time he wanted to have sex. She also said that J.J. would “threaten

to tell even if it wasn’t sexual, if I wouldn’t let him and [the Defendant’s daughter] do

something that he wanted to do, go somewhere, whatever” and he “would also threaten that

he would do to [the Defendant’s daughter] the same thing and that he would go and do that

to her.”

The Defendant said J.J. “had a lot of fantasies” and one time he sent her a private

message on Instagram that he wanted to tie her up. She claimed that after she dropped off

her son to play airsoft, J.J. told her to pull over because he “wanted to have sex[.]” She

said there was a yellow nylon braided rope in the back of her van that was a part of an

emergency kit, although she did not “know where it came from.” She said J.J. pulled her

pants down, told her to lie face down on the floor of the van, tied up her hands and her feet

with the rope, and told her to be quiet. The Defendant said she begged him not to do this

and told him she was uncomfortable, and J.J. told her that she was fine and then held the

back of her shoulders and her neck down so that her face hit the bottom of the seats while

he was having sex with her. The Defendant said she felt “numb when he got done.” She

said that after this, J.J. began crying and apologized to her. The Defendant said that J.J.

admitted that he could not stop himself and told her it was her responsibility to stop this.

Then J.J. “started cussing” her, and the Defendant promised him that they would not ever

do that again, but she told him to not come to her for sex anymore. She claimed that she

“never, not one time . . . made an advance at [J.J.]” The Defendant said that J.J. did not

always see her cry after they had sex, although she cried some because he was “very

aggressive with what he did.” She also said that sometimes she was “just really numb[.]”

- 22 -

The Defendant said that she visited Wendy Mallard in North Carolina and that the

first night she was there, she had “multiple, multiple glasses of wine.” She said she did not

drink very much “so it got to [her] real fast.” She had already told Wendy that there was

“something going on” between her and someone else, although she never identified who it

was. The Defendant claimed that she initially called Wendy because she “was trying to

figure out . . . what [she] needed to do to get away from the situation . . . without telling

[Wendy] what had actually happened[.]” When she arrived in North Carolina, Wendy

asked her if the person with whom she was having an affair came to her again, and the

Defendant confirmed that he had. The Defendant claimed that she told Wendy that this

man “wanted to have sex in every room” of the Defendant’s home, not that they actually

did have sex in every room of her house. She did not remember telling Wendy that she

was having an affair, although she did recall telling her that she “had been with someone

else[.]” The Defendant admitted that she did not tell Wendy that this person “had been

aggressive with [her][,]” but she did tell her that this person “wouldn’t stop coming [to

her],” which prompted Wendy to ask her who it was.

The Defendant denied feeling “giddy” about her relationship with J.J., although she

acknowledged that she had been drinking. She said she told Wendy that J.J. thought she

was pregnant, and he was excited about it, even though the Defendant knew it was

impossible for her to have another child because of her health issues. The Defendant

claimed that J.J. was the one who insisted that she was pregnant with his child and that the

baby would be named after him. She also said that J.J. claimed his uncle was going to

“give [him] a bunch of money” when he turned eighteen and that he was going to take her

“around the world.” The Defendant said she told J.J. that she loved him but that was not

going to happen because of her family. She said that although she did not love J.J.

romantically that J.J. loved her in that way. The Defendant said that when J.J. was “doing

things to [her],” he would yell at her, tell her to say that she loved him, and demand her to

say, “eff me, daddy; eff me, daddy.”

When defense counsel asked her why she did not tell K.J. and B.J. during the

controlled phone conversation that J.J. had forced himself on her and had been holding it

over her head, the Defendant said she did not want to “hurt” or “say anything about” J.J.

and because she “felt like [she] was being recorded.” At that time, the Defendant said she

was “afraid” because Kristina Evans had already called and told her that “something

happened at the school” that day and “the police were already there[.]” As a result, she did

not want to say anything during that conversation that “could have implicated” J.J. or her.

When asked why she did not tell K.J. and B.J. at their home that J.J. had taken

advantage of her and was coercing her to have sex with him, the Defendant said that her

husband tried to tell them that J.J. had manipulated her, but B.J. got “very angry” and

“jumped out of the chair” and said that the conversation was over because this did not

- 23 -

“have anything to do with [J.J.]” She also said that she could see J.J. standing on the other

side of a closed door to their living room and that if she “said anything[,]” he “would make

[her] pay for it in his own way . . . in lies or whatever it was going to be.” The Defendant

added, “I just protected [J.J.] out of fear and also because I didn’t want to hurt [J.J.’s family]

any more than they were already hurting[.]” She said that after her husband said that J.J.

had been manipulative to her, she “overcorrected” and began saying that J.J. did not do

anything wrong because B.J. was upset and J.J. was listening on the other side of the door,

and she knew J.J. well enough to know that he was “going to lie about it” and “the truth

didn’t matter anymore at that point about what actually happened between” the two of

them.

On cross-examination, the Defendant acknowledged that she and Wendy Mallard

were close friends before she visited her in North Carolina on November 1, 2017, but that

Wendy misconstrued everything the Defendant told her on that trip, stating “The discussion

happened but not the way [Wendy] stated it.” When asked if Wendy Mallard was being

dishonest with the court, the Defendant replied, “I do not think she’s being dishonest. I

just think that she was drinking wine, just like I was, and she doesn’t remember the whole

conversation correctly.” The Defendant denied talking about J.J. during the entire visit to

North Carolina. She said that J.J. “repeatedly” used the first incident “to say that you will

do this or I’m going to tell on you and what you did.”

The Defendant stated that she did not tell Wendy that J.J. was forcing himself on

her, even though she was in a place where she was safe from J.J.’s alleged extortion. She

said, “I’m telling [Wendy] about the relationship that was happening and I wasn’t telling

her that it was [J.J.]” Although Wendy testified that the Defendant used the word “affair”

to describe what was happening with J.J., the Defendant did not recall using that term.

Although the Defendant did not think Wendy was “lying” about her using the word

“affair”; instead, she claimed that Wendy was just “remembering whatever she thinks that

I said.”

Regarding the first instance of sexual intercourse, the Defendant denied making the

choice to stay home from her family’s trip to New York, so that she could spend time with

J.J. When the State asked if she was drinking and playing games with two underage boys,

the Defendant replied, “I don’t think that there’s anything illegal about that.” The

Defendant admitted that she never said anything about this forced sexual encounter with

J.J. to Detective Mills or Detective Hampton. Although the Defendant vehemently denied

that J.J. had done anything wrong when she spoke to B.J. and K.J., she said she only did

that because J.J. was listening to their conversation on the other side of the door and J.J.

“had a control over [her] that [she] can’t even begin to explain how that happened.” She

also said that she “didn’t want to hurt [J.J.] and [she] didn’t want to hurt [K.J. and B.J.]”

- 24 -

The Defendant acknowledged that she continued to let J.J. date her daughter even

after J.J. allegedly forced himself on her in December 2016. In addition, the Defendant

admitted that even though J.J. had forced himself on her, she continued to pick up J.J., take

him places, and help him clean out barn stalls. She said, “I did not completely let him go

away because he would have told . . . that [she] raped him, that [she] forced him.”

The Defendant acknowledged that she sent J.J. a text message on January 1, 2017

that said, “I just texted your uncle and asked if you can spend the night.” However, she

said she was not sure if J.J. actually spent the night at her house.

The Defendant also acknowledged that there was a text message, which stated, “I

feel lost without you like a part of me is missing,” that she sent to J.J. on January 29, 2017,

but that she actually intended for this text message to go to her husband. She said she

immediately apologized and said she did not mean to send that to J.J. in another text and

then sent the original text to her husband, who was out of town.

The Defendant also acknowledged that on June 1, 2017, J.J. sent her the following

text message: “But I still love you and you told me not to push you away so I won’t but

just know that it does hurt me.” The Defendant said she replied to that message with the

following text message: “I’m so sorry that you are hurt. That was never my intention. I

love you so much, and I can’t wait to see your sweet face.” She said that she and her

husband had been at the beach and had gone on a date and posted a picture of their date on

Instagram, and J.J. sent her that text out of anger because he was “very jealous” of her

husband.

The Defendant admitted that on October 1, 2017, she sent J.J. the following text:

Do you remember last year at homecoming dinner? That was the first time I

talked to you after you got in trouble after—and the first time I talked to your

parents. That day was crazy. I didn’t want to like you. What a difference a

year makes. That was also the first time I talked to Kristina too, crazy day.

She said there was “no significance to [this text] necessarily, just that [she could not]

believe it’s been a year since we’ve actually known you.”

The Defendant also sent J.J. a text on October 17, 2017, that stated, “Please

remember to bring a change of clothes.” She said she sent this text because J.J. was coming

to her house after school and she wanted to remind him to bring an extra set of clothes

because they were playing basketball and otherwise he would be playing in his school

uniform.

- 25 -

The Defendant acknowledged that she sent J.J. a text on October 18, 2017, that

stated, “I am outside.” She said she sent that text at 2:45 p.m. and that she sent this text to

J.J., her daughter, and her other kids letting them know that she was at the school to pick

them up.

The Defendant also said she sent the following text to J.J. on October 19, 2017:

“Hey, can you come to the restroom in the gym and bring the lavender oil down here,

please?” She claimed that she asked J.J. to bring the lavender oil for Kristina at 8:15 a.m.

because Kristina had burned herself working in the kitchen. She said she did not

remember “why [she] had given [J.J.] some lavender oil at some time before that[,]” but

she “had[,] and he had it at the school[,]” and she asked him to bring it down to the

restroom. She said that she was not at the school when she sent the text, and that she did

not know if J.J. actually brought the lavender oil down that day.

At the conclusion of trial, the jury convicted the Defendant of the charged offenses

of statutory rape by an authority figure in Counts 1 and 3 and the lesser included offense

of aggravated statutory rape in Counts 2, 4, and 5. Following a sentencing hearing, the

trial court imposed an effective sentence of twenty-four years with release eligibility after

service of thirty percent of the sentence in confinement.

Thereafter, the Defendant timely filed a motion for new trial. A new attorney was

substituted as Defendant’s counsel, and he filed three amended motions for new trial.

Following a hearing, the trial court denied the motion for new trial. The Defendant then

timely filed a notice of appeal.

ANALYSIS

I. Sufficiency of Evidence. The Defendant argues that the evidence is insufficient

to sustain her convictions for statutory rape by an authority figure in Counts 1 and 3. The

Defendant does not dispute that sexual penetration occurred. Instead, she claims that the

State failed to prove that she had attained a “position of trust” at the time the sexual acts in

Counts 1 and 3 occurred or that she used this “position of trust” to “accomplish” those

sexual acts, either through direct or circumstantial evidence. See Tenn. Code Ann. § 39-

13-532(a)(3)(A). Consequently, the Defendant asks this court to reverse her convictions

in Counts 1 and 3, to modify them to the lesser included offense of aggravated statutory

rape, and then to remand for a new sentencing hearing because such relief would make her

eligible for alternative sentencing. The State counters that it introduced sufficient evidence

to support these convictions. We agree with the State.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

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the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

“Appellate courts evaluating the sufficiency of the convicting evidence must determine

‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court

evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from that

evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318

S.W.3d 850, 857 (Tenn. 2010)).

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

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691

(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for

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

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

Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of

the witnesses, determine the weight given to witnesses’ testimony, and reconcile all

conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). When considering the

sufficiency of the evidence, this court “neither re-weighs the evidence nor substitutes its

inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997)).

After the defense’s case-in-chief and following the trial court’s final jury

instructions but before the parties made their closing arguments, the State made its election

of offenses. The State elected the following offense for Count 1:

For count one, the State is alleging the second incident described by

[J.J.], which was sexual intercourse with [the Defendant] in her house on a

weekend when her whole family had gone somewhere. No one was home.

[J.J.] believed [Evans’s son] was there. [The Defendant] started stripping

down on her bed and they had sex in her bed. A contraceptive was used.

The indictment alleged in Count 1 that the Defendant “between on or about December,

2016 and November, 2017, . . . did unlawfully and knowingly commit sexual penetration

with [J.J.], age fifteen (15) years, by having sexual intercourse with him, and [the

Defendant] was at least four (4) years older than [J.J.] and was, at the time of the offense,

in a position of trust or had supervisory or disciplinary power over him by virtue of [the

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Defendant]’s legal, professional or occupational status, and she used the position of trust

or power to accomplish the sexual penetration . . . .”

The State then elected the following offense in Count 3:

Count three is the first incident that was described by [J.J.]. Earlier

that day [the Defendant] had been massaging his back, bringing him food

and stuff, and later that night she came down and got close and they started

making out. They moved to the kitchen, and she performed fellatio on him

by placing his penis in her mouth. That was at her home in Hendersonville.

The indictment alleged in Count 3 that the Defendant “between on or about December 01,

2016 and November 30, 2017, . . . did unlawfully and knowingly sexually penetrate [J.J.],

age fifteen (15) years, by performing fellatio (oral sex) on [J.J.], and [the Defendant] was

at least four (4) years older than [J.J.] and was, at the time of the offense, in a position of

trust or had supervisory or disciplinary power over him by virtue of [the Defendant]’s legal,

professional or occupational status, and she used the position of trust or power to

accomplish the sexual penetration . . . .”

At the motion for new trial hearing, Defendant’s appellate counsel argued that “the

authority figure statute requires not only that the defendant be in a position of trust but also

that the defendant use the position of trust or power to accomplish the sexual contact.”

However, he asserted that J.J. was never asked, “[D]id you go along with this because . . .

you trusted [the Defendant] and she was in a position of trust[?]” Appellate counsel

claimed that if this question had been asked, it would have satisfied “the minimum . . .

burden of proof” and then it would have come down to “a credibility issue[.]” Appellate

counsel said that the State provided no evidence regarding when the Defendant attained a

position of trust, how she used the position of trust, and when these offenses occurred:

[I]in my review of the transcript[,] there w[ere] really no time frames given

for a lot of the things, specifically the two counts that the authority figure

verdicts were rendered [on], which were, I believe, the first sexual act as well

as the first act of sexual intercourse. There was testimony basically that they

asked the alleged victim[, J.J.,] what happened. He generally described it,

but he didn’t say when it happened. He didn’t explain that, well, it was

because she was my church leader or anything like that. He just said here’s

what happened. And there was nothing to show not just that she was in a

position of trust but how she used the position of trust to accomplish the act.

And, again, because the time frames were never clarified [for] when

these things occurred, when did she have this role in church, when did she

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have this role with him personally, and then when did the act occur, we don’t

know the sequence of events. That just simply never came out.

Appellate counsel asserted that because there was no direct testimony from J.J.

regarding “this nexus” and because the circumstantial evidence did not have “time frames

to connect the things together,” there was insufficient evidence to sustain the authority

figure convictions, and these convictions should be modified to aggravated statutory rape,

which he acknowledged the proof was sufficient to sustain. The trial court noted that more

than one witness testified that the victim had been dating the Defendant’s daughter, that

the Defendant taught the victim as a substitute teacher, that the Defendant was a youth

leader to the victim in church activities, and that the Defendant was “a mother figure” to

the victim. Appellate counsel responded that he was not saying that the Defendant “could

never have been considered an authority figure at any point” but that there was insufficient

evidence that the Defendant was an authority figure “at the time that the incidents

occurred.” The State countered that there was “adequate proof throughout the trial that

shows the time frame in which these events occurred” and that the fact that the Defendant

accomplished the sexual penetration through her position of authority was “inherent.”

Ultimately, the trial court concluded that there was abundant proof of “an authority figure

type of connection here” and that “according to the jury instructions and what an authority

figure is, [the Defendant] met that in three separate ways, with the “major one” being that

the Defendant “was considered a mother” by the victim.

As charged in this case, statutory rape by an authority figure is the unlawful sexual

penetration of a victim by the defendant or of the defendant by the victim when:

(1) The victim is at least thirteen (13) but less than eighteen (18) years of age;

(2) The defendant is at least four (4) years older than the victim; and

(3)(A) The defendant was, at the time of the offense, in a position of trust, or

had supervisory or disciplinary power over the victim by virtue of the

defendant’s legal, professional, or occupational status and used the position

of trust or power to accomplish the sexual penetration[.]

Tenn. Code Ann. § 39-13-532(a). “Sexual Penetration is defined as “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of

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

defendant’s, or any other person’s body, but emission of semen is not required[.]” Id. §

39-13-501(7); see 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 10.05(d) (footnote 7)

(comment 2) (providing an identical definition for sexual penetration in the pattern jury

instruction for the offense of statutory rape by an authority figure). “According to the

- 29 -

statute, the State is required to prove that at the time of the offense, the defendant was in a

position of trust or had supervisory or disciplinary power over the victim by virtue of the

defendant’s legal, professional, or occupational status; the State is not required to prove

both.” State v. Brian Caswell McGrowder, No. M2013-01184-CCA-R3-CD, 2014 WL

4723100, at *9 (Tenn. Crim. App. Sept. 23, 2014).

In Brian Caswell McGrowder, this court recognized that because the criminal code

did not define “position of trust[,]” it had to rely on the principles of statutory construction

in order to determine the term’s meaning. Id. at *9. The court first considered the plain

and ordinary meaning of the term “trust” and then recognized that the Tennessee Supreme

Court’s opinion in Kissinger provided guidance in determining the meaning of a “position

of trust” in a sufficiency of the evidence case. Id. at *10.

In State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996), the Tennessee Supreme

Court addressed the abuse of a position of trust within the context of sentencing

enhancement. In considering whether the defendant occupied a position of public or

private trust for the application of the related sentencing enhancement factor, the Tennessee

Supreme Court held that “[t]he determination of the existence of a position of trust does

not depend on the length or formality of the relationship, but upon the nature of the

relationship.” Id. It noted that a court should consider “whether the offender formally or

informally stood in a relationship to the victim that promoted confidence, reliability, or

faith.” Id. It also recognized that “[t]he position of parent, step-parent, babysitter, teacher,

coach are but a few obvious examples” of individuals occupying a position of trust. Id.

After this court’s opinion in Brian Caswell McGrowder, the following definition,

which was provided to the jury in the Defendant’s case, was added as an optional definition

to the pattern jury instruction for the offense of statutory rape by an authority figure:

The determination as to whether or not the defendant was “in a position of

trust” with the alleged victim depends not on the length or formality of the

relationship, but on the nature of the relationship. You should look to see

whether the defendant formally or informally stood in a relationship to the

alleged victim that promoted confidence, reliability or faith[.]

See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 10.05(d) (footnote omitted).

First, the Defendant claims that the State failed to prove that she had attained a

“position of trust” by the time the sexual acts in Counts 1 and 3 occurred. The Defendant

asserts that “[a]lthough the indictments specified a range beginning in December 2016,”

the dates of the incidents charged in Count 1 and Count 3 “were never established by the

testimony.” She claims that J.J. testified that he began dating the Defendant’s daughter

- 30 -

after meeting her at church during the summer of 2016 and then transferring to her school

in the fall of 2016; however, she asserts that J.J. never testified to the date when he first

met the Defendant or when he and the Defendant had the first two sexual interactions. She

maintains that the offenses charged in Counts 1 and 3 “were the first two acts of a sexual

relationship that spanned dozens of encounters over several months until the allegations

came to light in November 2017, and that even giving the State the strongest legitimate

view of the evidence, there was “no way for a rational jury to have concluded the first two

sexual acts” occurred after she attained a position of trust because the State failed to

establish a timeline. The Defendant insists that most of the State’s proof of her “authority

figure” status occurred in 2017, when she served as a camp chaperone and substitute

teacher, when she picked J.J. up from school, when she occasionally drove him to and from

“home schooling” after he was expelled from school in the fall of 2016, and when “she at

some point became a mother-like figure to him.” However, she claims that there was no

evidence that “any of these authority figure-like things occurred before the first two sexual

acts” charged in Counts 1 and 3 or that enough of these events had transpired for her to

have attained a “position of trust.”

The evidence presented at trial shows that the Defendant was in a position of trust

when the offenses charged in Count 1 and Count 3 occurred. The proof, when viewed in a

light most favorable to the State, shows that the Defendant first cultivated a close

relationship with J.J., who was fourteen years old, during the summer of 2016 when J.J.

began dating her daughter and when J.J. began participating in the youth group at the

Defendant’s church, where the Defendant served as a youth leader. By the fall of 2016,

before these offenses occurred, the Defendant continued to cultivate her relationship with

J.J. when J.J. began attending the church’s private school. During this period, the

Defendant ingratiated herself with J.J.’s aunt and uncle who had custody of him.

Consequently, they gave the Defendant permission to have J.J. come to her home and to

have J.J. spend the night, ostensibly for the purpose of J.J. spending time with the

Defendant’s son and the Defendant’s teenage male neighbor. From August 2016 to

December 2016, the victim’s aunt and uncle allowed the Defendant to drive J.J. home from

his “home schooling” sessions several times a week. J.J. testified that during these rides

home, he “began to see [the Defendant] as a mother and got really close with her[.]”

Dawn Lesueur also testified that J.J. spent “quite a bit” of time with the Defendant

and that the Defendant had “mentioned several times that [J.J.] thought of her as a mother”

and that J.J. “wished . . . he had a mother like her.” Moreover, the Defendant herself

admitted during her testimony that she loved J.J. and that J.J. thought of her as his mother.

At the time of the charged offenses, in December 2016 and shortly thereafter, the Defendant

was the mother of J.J.’s girlfriend, acted as a surrogate mother to J.J., volunteered as a

youth leader in the church youth group that J.J. regularly attended, and was a trusted family

friend of J.J.’s family. The proof also showed that from December 2016 to November of

- 31 -

2017, which was the entire length of this inappropriate relationship, the Defendant

volunteered as a youth group leader for the church, went on trips, retreats, and summer

camp with the church youth, and volunteered at church events for the youth on Wednesday

nights, which were all events in which J.J. routinely participated. As a church youth group

leader, the Defendant was entrusted with chaperoning, teaching, and guiding all the

members of the church’s youth group, including J.J. Given this overwhelming proof, we

conclude that the evidence was more than sufficient for the jury to find that the Defendant

had attained a position of trust at the time that the Defendant committed the offenses

charged in Count 1 and Count 3.

Second, the Defendant contends that there was no evidence showing that she “used”

her position of trust “to accomplish” the sexual penetration charged in Counts 1 and 3. She

claims that while the State could have asked J.J. whether the Defendant’s position of trust

influenced his decision to engage in sex with her, it never elicited this testimony. She also

asserts that there was no circumstantial evidence showing that she used her position of trust

to accomplish the sexual penetration. The Defendant argues that because the proof showed

that J.J. would have engaged in the sexual activity absent the Defendant’s position of trust,

the offense committed is aggravated statutory rape, not statutory rape by an authority

figure.

Initially, we note that while the statute for the offense of statutory rape by an

authority figure prohibits an offender from using his or her position of trust or authority to

accomplish the sexual penetration, it says nothing about a defendant using his or her

position to force the sexual penetration. See Tenn. Code Ann. § 39-13-532(a); Compare

State v. Margaret L. Holt, No. E2010-02128-CCA-R3-CD, 2012 WL 826523, at *16 (Tenn.

Crim. App. Mar. 13, 2012) (concluding that the evidence was sufficient to sustain the

defendant’s conviction for statutory rape by an authority figure when the proof established

that the defendant used her position of authority as a teacher’s assistant to cultivate an

inappropriate relationship with the minor victim and to bring about or bring to completion

sexual penetration with the minor victim), with State v. Bryan Dale Farmer, No. M2007-

01553-CCA-R3-CD, 2008 WL 3843847, at *7 (Tenn. Crim. App. Aug. 18, 2008) (citing

Tenn. Code Ann. § 39-13-527(a) (concluding that the evidence was sufficient to sustain

the defendant’s conviction for sexual battery by an authority figure because defendant used

his position as a teacher or coach to accomplish the sexual contact)).

This court has held that “if the evidence shows that a defendant used his or her

position to cultivate an improper relationship with the victim and to bring about or bring to

completion sexual penetration with the victim, then this evidence is sufficient to support

the conviction for statutory rape by an authority figure.” Margaret L. Holt, 2012 WL

826523, at *16 (citing Bryan Dale Farmer, 2008 WL 3843847, at *8); see State v. Theron

Antonio Grambling, No. E2014-00248-CCA-R3-CD, 2015 WL 603193, at *5 (Tenn. Crim.

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App. Feb. 12, 2015); State v. Henry Wayne Russell, No. M2013-00166-CCA-R3-CD, 2014

WL 1704953, at *11-12 (Tenn. Crim. App. Apr. 29, 2014).

The first incident of sexual contact between the Defendant and J.J. was charged in

Count 3. The proof showed that earlier that day the Defendant had massaged J.J.’s back,

made him feel comfortable, and brought him food. Later that night, after everyone at the

sleepover was asleep, the Defendant came downstairs, got close to J.J., and began kissing

J.J. and grabbing his crotch. Then the Defendant and J.J. moved to the kitchen, where the

Defendant engaged in fellatio with J.J.

The second incident of sexual contact between the Defendant and J.J. was charged

in Count 1. The proof showed that J.J. spent the night at the Defendant’s home at a time

when the Defendant’s entire family was out of town. Evans’s son was also present,

although he was “oblivious to the whole thing” because he “had his headset on” and was

“playing [video]games[.]” The Defendant brought J.J. to her bedroom and “started

stripping down[,]” and they “had sex in her bed.” He said that they used contraception

during that incident.

After reviewing the evidence presented, we conclude that the proof is sufficient to

sustain the Defendant’s convictions for statutory rape by an authority figure in both Count

1 and Count 3. The proof established that the Defendant would have been unable to initiate

her improper relationship with J.J. except through her position of trust. See Brian Caswell

McGrowder, 2014 WL 4723100, at *8. Because the proof established that the Defendant

utilized her position as the mother of J.J.’s girlfriend, a surrogate mother, a church youth

leader, and a trusted family friend to cultivate an inappropriate relationship with J.J. and

bring about or bring to completion the sexual penetration with J.J. as charged in these

counts, the proof is sufficient to sustain the Defendant’s convictions for statutory rape by

an authority figure in both Count 1 and Count 3. See Theron Antonio Grambling, 2015

WL 603193, at *5; Margaret L. Holt, 2012 WL 826523, at *16; Henry Wayne Russell,

2014 WL 1704953, at *11-12. Accordingly, the Defendant is not entitled to relief.

II. Alleged Brady Violation. The Defendant contends that the State violated Brady

v. Maryland, 373 U.S. 83 (1963), by failing to disclose the existence and amount of

payments made to Wendy Mallard, and her husband, Tommy Mallard, as reimbursement

for their travel expenses, despite the defense’s specific request for such evidence prior to

trial. She argues that the information regarding these payments meets the first three prongs

to establish a Brady violation—the Defendant requested the information, the State

suppressed this information, and the information was favorable to the defense—and that

the only remaining issue is whether “the information was material.” The Defendant insists

that the State’s payments to the Mallards were material because Wendy Mallard’s

testimony was “highly significant to the State’s case” and “likely guaranteed a conviction

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which might not have otherwise occurred” and that the State’s “willful withholding” of

these payments “impacted” her due process rights, which entitles her to a new trial. The

State responds that evidence of these payments was not material. We conclude that the

Defendant is not entitled to relief on this issue because she failed to establish all four of the

elements required to prove a Brady violation.

The Defendant claims the State’s argument that it did not have the documentation

regarding these payments until after trial “overlook[s] the fact that the State had actual

knowledge the claims would be submitted on the very first day of trial” when the “the State

prepared, notarized, and kept the [Mallards’] reimbursement requests” She also asserts

that “[t]he fact that the District Attorney waited until weeks after the trial to file the requests

ex parte . . . deprive[d] the Defense of any way to discover the requests.” The Defendant

contends that if this court were to distinguish situations, like this one, where the State

guarantees payments but has not yet disbursed the funds, the State could avoid disclosing

any sort of payments so long as the payments are made after trial. The Defendant also

argues that because Code section 40-17-208 provides that witnesses “shall” receive such

reimbursement, the State cannot argue that these payments were “only speculative” at the

time of trial. She also asserts that the defense should not have been required to assume that

any out-of-state witnesses would be compensated.

The Defendant notes that Wendy Mallard’s testimony was “profoundly important”

because it “squarely contradicted” her own testimony at trial, namely that J.J. forced

himself on her and then blackmailed her to continue the sexual. She states that Wendy

Mallard testified that the Defendant was “giddy, very excited[,] and happy” about her

relationship with J.J. She also notes that Wendy Mallard testified that the Defendant told

her about her multiple orgasms, about how the Defendant and J.J. had sex in every room

of the house, about how happy the Defendant was because she thought she was pregnant,

and about how the Defendant wanted to marry J.J. The Defendant argues that Wendy

Mallard’s testimony “was by far the strongest direct evidence of the true nature of [the

Defendant’s relationship with J.J.] from [the Defendant]’s own words” and that without it,

“the case would have turned much more on circumstantial evidence and subjective factors

such as credibility.” She adds that without the information that Wendy and Tommy

Mallard “requested hundreds of dollars in compensation,” her attorney had “little with

which to challenge [Ms. Mallard’s] credibility, motive, or bias.” She insists that

“[f]inancial compensation is certainly an objective ground to challenge bias” and that the

State’s compensation to the Mallards was material to her case.

In addition, the Defendant argues that the compensation and related testimony were

significant because Wendy Mallard received $656.96 from the State and her husband

received $761.13, for a total of $1,418.09. She claims Wendy Mallard would have jointly

benefitted from her husband’s share as his wife. She also observes that although the State

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claimed in its Petition for Trial Expenses that “Tommy Mallard was a vital and necessary

witness for the State of Tennessee, the State never called Tommy Mallard to testify, which

resulted in the Mallards receiving an all-expenses-paid trip to Tennessee in exchange for

Wendy Mallard’s testimony, which spanned only twenty-three pages of transcript.

The record shows that on March 6, 2018, the Defendant filed a discovery request,

seeking evidence of “[a]ny money or other remuneration paid to any witness by the State,

including, but not limited to, rewards, subsistence payments, expenses or other payments

made for specific information supplied to the State.” On February 12, 2019, the first day

of the Defendant’s trial, the Mallards signed “State of Tennessee Claim for Advance

Witness Transportation Expense” forms stating that travel from Charlotte, North Carolina

to Gallatin, Tennessee was necessary; the Mallards’ signatures on these forms were

notarized by the administrative assistant for the district attorney general, and the district

attorney general also signed these claim forms after the Defendant’s trial. On March 5,

2019, the district attorney general filed a “Petition for Travel Expense” for the Mallards,

which stated that Wendy and Tommy Mallard were “vital and necessary witness[es] for

the State of Tennessee”; that the Mallards made one round-trip from Charlotte, North

Carolina, to Gallatin, Tennessee; that the Mallards were entitled to certain amounts for car

rental costs, parking, and meals, as indicated on the attached Claim for Witness Fee

Reimbursement; and that the Mallards’ airfare would be “paid by the District Attorney’s

Office from the Fraud and Economic Crimes Fund” and then said amount would be

“reimbursed to the Fraud and Economic Crimes Fund after all costs are paid by the State.”

Thereafter, on March 5, 2019, the trial court entered orders granting the State’s

petitions and approving the payments on the basis that the Mallards were “necessary

witness[es] in the above styled case.” On March 7, 2019, the circuit court clerk signed a

“State of Tennessee Claim for Witness Fee Reimbursement” form, approving the Mallards’

claims for reimbursement. These forms, which noted that the Mallards were not

reimbursed for their lodging because they stayed with family during the trial, showed that

the circuit court clerk approved the following payments to Wendy and Tommy Mallard:

WENDY MALLARD:

$574.46 (airfare)

$82.50 (dinner or meals & incidentals)

TOTAL: $656.96

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TOMMY MALLARD

$574.46 (airfare)

$82.50 (dinner or meals & incidentals)

$71.82 (car rental)

$15.35 (replacement fuel for the rental car)

$20.00 (airport parking)

TOTAL: $764.13

Receipts for the Mallards’ airfare, car rental, fuel, and parking were admitted as exhibits to

the motion for new trial hearing. The airfare receipts showed that the Mallards left

Charlotte at 7:05 a.m. on February 11, 2019, and returned to Charlotte the following day

at 11:10 p.m.

At the motion for new trial hearing, the Defendant’s appellate counsel submitted an

affidavit from the Defendant’s trial counsel, stating that he did not learn the State had

requested travel compensation for any trial witnesses or that such compensation had been

provided to trial witnesses until several months after the Defendant’s trial. This affidavit

was also made an exhibit to the hearing. The Defendant’s appellate counsel argued that

the defense had made a discovery request for all compensation made to State witnesses,

that such compensation was considered favorable evidence to the extent that it “could go

to a witness’s credibility or motive for testifying[,]” and that the State had failed to disclose

this information, which was why he claimed this was a “Brady violation meriting a new

trial.” Appellate counsel acknowledged that he was “not suggesting that the travel payment

in and of itself was improper” because Code section 40-17-208 permitted such payment;

instead, he was arguing that because the State requested such payments, filed a motion, and

then asked the court to approve such payments, without informing the defense after a

specific request for that information was made, that the State had violated Brady.

Appellate counsel also noted that this was a “he-said-she-said” case and that the

State put on Wendy Mallard as its first witness because the Defendant had told Wendy

“about what happened [with J.J.] in a light that was not consistent with her position at

trial[.]” The trial court acknowledged that Wendy Mallard was “a pretty informative

witness[,]” who testified at trial that the Defendant was “giddy, happy, and excited about

this relationship [with J.J.],” and that the Defendant had challenged Mallard’s testimony at

trial. Appellate counsel argued that the fact that the Mallards received compensation would

be an impeachable matter because the Mallards could have been asked if they were paid

for their testimony. When questioned by the trial court, appellate counsel affirmed that the

State’s failure to disclose travel reimbursement for two out-of-state witnesses was so severe

that it was reversible error. He explained that because “discovery of favorable evidence is

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such an important part of the adversarial process” and the defendant’s “right to present a

defense,” the courts are very lenient in what they consider to be reversible Brady violations.

In response, the State noted that pursuant to Code section 40-17-208, if an out-of-

state witness is summoned to testify in this state, the witness “shall be tendered

compensation [for expenses so incurred.” It asserted that the defense knew that Wendy

and Tommy Mallard were on the witness list and that they lived in North Carolina and,

therefore, should have known that they would receive such funds for their travel expenses.

The State emphasized that it merely “reimburse[d] [the Mallards’] travel expenses,” which

was “required” by the statute and was not done “until well after the trial[.]” Finally, the

State maintained that it was not obligated to provide evidence regarding these claims

because the claims were not “approved” by the circuit court clerk until March 7, 2019,

which was nearly a month after the Defendant’s trial.

At the conclusion of the hearing, the trial court stated, “There’s no question here

that it could be material and used as impeachment, but there was no suppression here.”

The trial court, noting that it did not sign the order for reimbursement until March 5, 2019,

found that the State did not suppress this information because “[t]he State didn’t even have

this documentation until after the trial. The trial court added, “[G]oing a little bit further,

I don’t believe this issue, in the whole scheme of things, is one that would really affect this

trial one way or the other.”

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution and article I, section 8 of the Tennessee Constitution guarantee every

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). In

Brady, 373 U.S. at 87, the United States Supreme Court held “that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.”

In order to prove a Brady violation, the defendant must establish the following four

elements:

1) that the defendant requested the information (unless the evidence is

obviously exculpatory, in which case the State is bound to release the

information whether requested or not);

2) that the State suppressed the information;

3) that the information was favorable to the accused; and

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4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); State

v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995)). The defendant has the burden of proving

a Brady violation by a preponderance of the evidence. See Edgin, 902 S.W.2d at 389.

When considering a Brady claim, this court reviews the trial court’s findings of fact, such

as whether the defendant requested the information or whether the State withheld the

information, de novo with a presumption that the findings are correct unless the evidence

preponderates otherwise, while this court reviews the trial court’s conclusions of law,

including whether the evidence was favorable to the accused or material, de novo with no

presumption of correctness. Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App.

2004).

The “prosecution is not required to disclose information that the accused already

possesses or is able to obtain.” State v. Marshall, 845 S.W. 2d 228, 233 (Tenn. Crim. App.

1992). “When exculpatory evidence is equally available to the prosecution and the

accused, the accused ‘must bear the responsibility of [his] failure to seek its discovery.’”

Id. (quoting United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985)).

“Evidence ‘favorable to an accused’ includes evidence deemed to be exculpatory in

nature and evidence that could be used to impeach the State’s witnesses.” Johnson, 38

S.W.3d at 55-56; Walker, 910 S.W.2d at 389; see State v. Jackson, 444 S.W.3d 554, 593

(Tenn. 2014). In addition, “[e]vidence is deemed to be material when ‘there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.’” Johnson, 38 S.W.3d at 58 (quoting Edgin, 902 S.W.2d at

390) (emphasis added)). When determining whether a defendant has adequately

established the materiality of favorable evidence suppressed by the State, “a reviewing

court must determine whether the defendant has shown that ‘the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine the

confidence of the verdict.’” Id. (quoting Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim.

App. 1998)).

In Kyles v. Whitley, 514 U.S. 419, 435 (1995), the United States Supreme Court

outlined the proper test for materiality:

[The] touchstone of materiality is a “reasonable probability” of a different

result, and the adjective is important. The question is not whether the

defendant would more likely than not have received a different verdict with

the evidence, but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence. A “reasonable

probability” of a different result is accordingly shown when the

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government’s evidentiary suppression “undermines confidence in the

outcome of the trial.” Bagley, 473 U.S., at 678, 105 S. Ct., at 3381.

Id. at 434.

“Failing to disclose Brady materials may impair the adversary process in various

ways, including causing the defense to ‘abandon lines of independent investigation,

defenses, or trial strategies that it otherwise would have pursued.’” Jackson, 444 S.W.3d

at 595 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Defendants seeking

to establish the materiality element for a Brady violation should emphasize “any and all

ways in which suppression of evidence impaired the adversary process and undermined

confidence in the outcome of the proceeding.” Id.

The Defendant cites two Sixth Circuit cases, Thomas v. Westbrooks, 849 F.3d 659

(6th Cir. 2017) and Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010), to support her claim

that the State’s payment of the Mallards’ travel expenses was material evidence under

Brady. In Thomas v. Westbrooks, 849 F.3d at 661-64, Thomas appealed the district court’s

denial of his habeas corpus petition from his state court conviction for felony murder,

alleging that the State violated Brady when it failed to inform him that Angela Jackson, a

key witness who testified against him, received $750 from the FBI prior to his state trial.

The Sixth Circuit held that because Jackson provided the only reliable testimony placing

Thomas at the scene of the shooting and because the jury did not hear any evidence

regarding Jackson’s pecuniary bias, the FBI’s payment to Jackson of $750 was material to

the jury’s finding of guilt for the charge of felony murder, and therefore, violated Brady.

Id. at 666.

Remarkably, the Defendant failed to mention that on the exact same day, the Sixth

Circuit also filed Thomas v. United States, 849 F.3d 669 (6th Cir. 2017), a companion case

to Thomas v. Westbrooks, 849 F.3d 659 (6th Cir. 2017), which involved the same

petitioner, Andrew Lee Thomas, and the same underling facts but concerned Thomas’

appeal from the district court’s order denying his habeas corpus petition from his federal

convictions for robbery affecting commerce, using a firearm during a crime of violence,

and being a felon in possession of a firearm. 849 F.3d at 673. In this companion case,

Thomas argued that the Government violated Brady when it failed to disclose evidence

that it intended to pay Angela Jackson for her federal testimony. Id. at 680. The court

recognized that “[t]he timing of the payment to Angela Jackson, which took place after the

federal trial but before the state trial, causes Thomas’s federal Brady claim to fail. Id. The

court noted that a U.S Marshall on Thomas’s case had submitted an affidavit stating that

“Angela Jackson had not been informed ahead of time that she would be compensated for

her cooperation or that she was at risk of facing prosecution for assisting Thomas.” Id.

This U.S. Marshall also stated that “investigators did not anticipate, plan, or discuss with

- 39 -

Angela Jackson a payment to be made to her after the federal trial.” Id. The court

emphasized that Thomas was unable to present proof that Jackson knew prior to her federal

testimony that she would receive the money or that Jackson had made a deal to testify in

the federal trial in lieu of being prosecuted. Id. Ultimately, the court held,

If the Government had the ability or obligation to disclose to Thomas the

eventual compensation [to Jackson], it is plausible that the withholding of

evidence might have affected the outcome of the case. But during the federal

trial the Government had no obligation to disclose to the defendant whether

it was considering the eventual payment to Jackson.

Id.

The Defendant also cites to Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010), to

support her claim that the State’s payment of the Mallards’ travel expenses was material

evidence under Brady. In Robinson, a warden appealed the grant of a conditional writ of

habeas corpus after the district court found that the State violated Brady by withholding

impeachment evidence. Id. at 731. The Sixth Circuit found that the State’s key witness,

who was the only person to contradict the defendant’s claim of self-defense, had been paid

by various law enforcement agencies on numerous occasions for her cooperation as a

confidential informant in unrelated cases and that this witness “had a working relationship

with law enforcement, including the agencies spearheading the investigation of this case.”

Id. at 738. Consequently, the court held that Robinson was entitled to present such

evidence to the jury in order to call into question the witness’s credibility and truthfulness.

Id.

We believe that the cases cited by the Defendant, Thomas v. Westbrooks, 849 F.3d

659 (6th Cir. 2017) and Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010), are distinguishable

from the Defendant’s case. In Thomas v. Westbrooks, the key witness was paid for her

testimony before the state trial. In Robinson, the key witness was a confidential informant

who had been repeatedly paid to cooperate in unrelated prosecutions and was closely

associated with the agency investigating Robinson’s case. Both involve cases of clear

witness bias.

We now turn to the case at hand. The Defendant clearly established the first element

required to prove a Brady violation because the defense made a discovery request seeking

“[a]ny money or other remuneration paid to any witness by the State, including, but not

limited to, rewards, subsistence payments, expenses or other payments made for specific

information supplied to the State.” However, it is less clear whether the Defendant

established the second, third, and fourth elements required to prove a Brady violation.

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For the second element, the Defendant must prove that the State suppressed the

information regarding the travel reimbursement payments. Although the Mallards made

claims for advance witness transportation expenses on February 12, 2019, the first day of

the Defendant’s trial, the Mallards’ claims were not approved for payment by the circuit

court clerk until three weeks after the Defendant’s trial. In considering whether the

Defendant established this second element, we recognize that because the administrative

assistant to the district attorney general notarized the Mallards’ signatures on this claim

form on February 12, 2019, the State was aware that the Mallards had made a claim for

such travel expenses and also knew, based on Code section 40-17-208, that the grant of

travel reimbursement expenses for out-of-state witnesses was a foregone conclusion.

However, the State insists that it notified the defense that it had summoned Wendy

and Tommy Mallard, out-of-state witnesses, to testify at the Defendant’s trial, a point that

the Defendant does not challenge. Consequently, the defense was also presumed to know

that the Mallards would, at some point, receive reimbursement for their travel expenses

pursuant to Code section 40-17-208. See Marshall, 845 S.W. 2d at 233; see also Byrd v.

Collins, 209 F.3d 486, 517 (6th Cir. 2000) (citations omitted) (“No Brady violation exits

where a defendant knew or should have known the essential facts permitting him to take

advantage of any exculpatory information, or where the evidence is available from another

source.”), superseded by statute on other grounds as stated in Stewart v. Winn, 967 F.3d

534, 540 (6th Cir. 2020). It is also worth noting that although the defense asked for

evidence of “payments” in its discovery request, no reimbursement “payments” had been

made to the Mallards at the time of the Defendant’s trial. See Donald Wayne Strouth v.

State, No. 03C01-9507-CC-00195, 1997 WL 90636, at *8 (Tenn. Crim. App., at Knoxville,

Mar. 4, 1997) (“Any evidence that came into existence after appellant’s trial does not fall

within the purview of Brady and cannot logically be considered suppressed by the State.”).

While the Defendant suggests that the State deliberately submitted the Mallards’

reimbursement claims for approval after her trial, there is no evidence in the record to

substantiate that claim.

For the third element, the Defendant must establish that the information was

favorable to her. The Defendant claims that information regarding payment of the Mallards

travel reimbursement was favorable because it could have been used to impeach Wendy

Mallard. Specifically, she claims that Wendy Mallard could have been asked if there was

a connection between the travel reimbursements given to Wendy and Tommy Mallard and

the substance of Wendy Mallard’s testimony, which would have suggested to the jury that

Wendy Mallard was a biased or unreliable witness. See Johnson, 38 S.W.3d at 55-56

(stating that favorable evidence for Brady includes “evidence that could be used to impeach

the State’s witnesses”); State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001) (acknowledging

that a defendant has the right to establish a witness’s bias based on “promises of leniency,

promises to help the witness, or any other favorable treatment offered to the witness” and

- 41 -

that exposure of a witness’s motivation in testifying is an appropriate and essential function

of the right of cross-examination). In considering this third element, we fail to see how the

Defendant could have effectively used this information to impeach Wendy Mallard. The

Mallards were not enriched by reimbursement of their travel expenses; in fact, the

reimbursement of their travel expenses simply put the Mallards in exactly the same

financial position that they held prior to trial. As opposed to a payment, a bribe, or a

promise of leniency, the payments in this case were merely a reimbursement for the

Mallards’ out-of-pocket travel expenses related to the Defendant’s trial. Accordingly, we

fail to see how such reimbursement affected Wendy Mallard’s credibility or made her

biased.

Even if we were to assume, without making such a determination, that the

Defendant established that the State suppressed information and that this information was

favorable to the accused, the Defendant has failed to establish that the information

regarding reimbursement of the Mallards’ travel expenses was material. The Defendant

has not shown that “‘there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.’” Johnson, 38

S.W.3d at 58 (quoting Edgin, 902 S.W.2d at 390). Although the Defendant claims she

could have used this information to show that Wendy Mallard was financially motivated

to testify against her based on the prospect of receiving this travel reimbursement, which

she characterizes as an “all-expenses-paid vacation” for the Mallards, the proof actually

shows that the Mallards spent less than thirty-eight hours in Gallatin for the Defendant’s

trial and that the overwhelming majority of this reimbursement amount went toward the

Mallards’ airline tickets. Considering this evidence, we cannot conclude that the State’s

alleged suppression of information regarding the Mallards’ reimbursement of their travel

expenses undermined confidence in the Defendant’s trial. No rational jury would have

believed that such reimbursement would have caused Wendy Mallard to testify untruthfully

at trial. Because the Defendant has failed to establish that such information was material

for the purpose of proving a Brady violation, she is not entitled to relief.

III. Sufficiency of the Evidence and Modified Unanimity Jury Instruction in

Count 4. The Defendant contends that the trial court erred in not providing a modified

unanimity instruction for Count 4. See State v. Qualls, 482 S.W.3d 1, 17 (Tenn. 2016)

(holding that the election doctrine does not require the prosecution to identify a single

incident in generic evidence cases but that in cases where the prosecution is based solely

on such generic evidence, the election doctrine is satisfied by providing the jury with a

modified unanimity instruction that allows conviction only if the jury unanimously agrees

the defendant committed all the acts described by the victim). She also asserts that the

evidence is insufficient to sustain her conviction for aggravated statutory rape in Count 4.

The Defendant maintains that “[b]etween the absence of specific testimony that sexual

intercourse occurred in the van and the trial court’s failure to provide a modified unanimity

- 42 -

instruction, her conviction in Count 4 must be reversed.” In response, the State argues that

it elected distinguishable criminal acts that did not require the trial court to give a modified

unanimity instruction and that it presented sufficient evidence to sustain the Defendant’s

aggravated statutory rape conviction in Count 4. We conclude that it would have been

inappropriate for the trial court to provide a modified unanimity instruction to the jury and

that the evidence is sufficient to sustain the Defendant’s conviction for aggravated statutory

rape in Count 4.

A. Modified Juror Unanimity Instruction. First, the Defendant asserts that J.J.’s

testimony about the offense charged in Count 4 was “‘generic evidence’ with no particular

date or sex act . . . identified,” which should have prompted the trial court to provide a

modified unanimity instruction sua sponte with regard to Count 4. She maintains that the

trial court’s failure to provide this instruction was in direct violation of Qualls. She also

asserts that because J.J. only provided vague testimony for this count, namely that he and

the Defendant had sex on the road beside her house “multiple times” and included “oral—

all of—everything,” this meant that every type of sexual penetration described in the statute

occurred, even though J.J. never testified that many of these types of sexual penetration

occurred on other occasions. The Defendant contends that because the jury acquitted her

on three of the five counts of statutory rape by an authority figure, “the erroneous jury

instruction [in Count 4] requires more scrutiny here than in cases where the jury entirely

rejected the defense.”

Count 4 of the indictment provided that “between on or about December 2016 and

November 2017,” the Defendant “did unlawfully and knowingly commit sexual

penetration with [J.J.] . . . by having sexual intercourse with him” and the Defendant “was

at least four (4) years older than [J.J.] and was, at the time of the offense, in a position of

trust or had supervisory or disciplinary power over him by virtue of [the Defendant]’s legal,

professional or occupational status, and she used the position of trust or power to

accomplish the sexual penetration . . . .” The State made the following election for Count

4: “[O]n a road directly behind their house, [the Defendant] took him there and they had

sexual intercourse in the van.”

The only other count describing sexual intercourse in the Defendant’s van was

Count 2, for which the State provided the following election:

For count two, [the Defendant] took [J.J.] in her van and dropped all

the kids off. They were at the end of a dead-end road and they got in the back

of the van and had sex again. Afterwards the van would not start. It was very

scary. [The Defendant] went door-to-door knocking for someone to jump the

car off. A man came down and helped jump the car, and [the Defendant] told

the man that [J.J.] was her son.

- 43 -

The Defendant asserts that the following proof presented at trial regarding Count 4

is exactly the type of “generic evidence” deemed problematic in Qualls:

Q. . . . I need you to tell the ladies and gentlemen of the jury what you remember

[about] the next time that you had relations with [the Defendant].

A. . . . [S]he would take me in her van a lot of times, . . . a lot of times she would

tell her husband that she was going somewhere where she wasn’t actually

going. . . . It would also happen—there was this road that it would happen a

lot at. It was right behind her house and—

Q. And that was in Hendersonville?

A. Yes, sir. And—

Q. This road that you’re talking about that you went down, was it close to her

house?

A. The one behind her house or the dead-end?

Q. The dead-end road.

A. Okay. That one was right beside her house, like right down the road.

Q. And that was in Hendersonville?

A. Yes, sir.

Q. And you talked about this road that was behind her house. What happened

at the road behind her house?

A. I mean, she brought me there to have sex multiple times.

Q. When you said “have sex,” different kinds of sex?

A. Oral—all of—everything. Oral sex, everything.

Q. Did you have intercourse during those periods of times?

A. Yes, sir.

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When considering this issue at the motion for new trial hearing, the trial court held only

that “the election issue is not well-taken[.]”

The Defendant argues that the aforementioned testimony is the type of “generic

evidence” identified in Qualls as problematic and that the remedy is for the trial court to

provide “a modified unanimity instruction that allows a conviction only if the jury

unanimously agrees the defendant committed all the acts described by the victim.” Id. She

claims that because the trial court did not provide a modified unanimity instruction in her

case, the jury instructions were in direct violation of Qualls, and this court must apply a

constitutional harmless error analysis, which requires this court to determine, after

examining the record, “‘whether it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’” Id. at 18 (quoting State v.

Climer, 400 S.W.3d 537, 569 (Tenn. 2013)). The Defendant insists that “[i]n light of the

particular circumstances of this case, the State cannot meet its burden to show the error [in

not charging the modified unanimity jury instruction] was harmless beyond a reasonable

doubt.” Accordingly, the Defendant argues that “Count Four must be vacated.”

Although we recognize that the election of offenses in this case took place at the

end of the defendant’s case-in-chief, rather than at the conclusion of the State’s case-in-

chief, neither side raised any issue regarding the timing of the State’s election. See Qualls,

482 S.W.3d at 10 (“The election [of offenses] must be made at the conclusion of the State’s

case-in-chief.”). Even if the timing of the State’s election was error, such error was

harmless because we conclude beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained. See id. (noting that while the election doctrine assists

the defendant in preparing for and defending against specific charges, protects the

defendant from double-jeopardy concerns, enables the trial court to review the weight of

the evidence as the thirteenth juror, and helps an appellate court review the legal sufficiency

of the evidence, the most important purpose served by the election doctrine is to ensure

juror unanimity); State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (holding that when

an appellate court conducts a harmless error analysis, “the crucial consideration is what

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

From opening statements forward, the Defendant pursued a defense theory wherein she

acknowledged that the incidents of sexual penetration occurred but claimed that J.J. had

forced himself on her and then blackmailed her to continue their sexual relationship. At

trial, the Defendant acknowledged that at least twenty incidents involving sexual

penetration between the Defendant and J.J. occurred, and the Defendant provided evidence

in support of the aforementioned defense theory. Thereafter, the trial court provided the

jury with the general unanimity instruction as a part of its concluding instructions, see 7

Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 43.02, and the State elected the specific

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incidents for which it was seeking conviction in all five counts. Accordingly, we conclude

that any error regarding the timing of the State’s election was harmless.

In Qualls, the Tennessee Supreme Court distinguished between “non-generic” and

“generic” evidence in child sexual abuse cases. Qualls, 482 S.W.3d at 16-17. The court

held that in cases where the prosecution presents “non-generic evidence of distinguishable

criminal acts, the prosecution must elect the specific act for which it seeks conviction in a

manner that identifies the prosecuted offense of the jury.” Id. at 16. However, the court

held that where the prosecution presents non-specific or “generic evidence” such as where

the child victim testifies to “repeated incidents of sexual contact occurring over a

substantial period of time but is unable to furnish specific details, dates, or distinguishing

characteristics as to individual incidents” the prosecution “need not elect a specific criminal

act or incident as the basis of a conviction for each charge”; instead, the election

requirement may be satisfied by the “the trial court providing a modified unanimity

instruction that allows a conviction only if the jury unanimously agrees the defendant

committed all the acts described by the victim.” Id. at 17, 19. The court made it clear that

there is no need for the trial court to provide a modified unanimity instruction “[w]here the

prosecution presents non-generic evidence of distinguishable criminal acts.” Id. at 16.

Because questions involving the propriety of jury instructions are mixed questions

or law and fact, this court’s standard of review is de novo with no presumption of

correctness. State v. Benson, 600 S.W.3d 896, 902 (Tenn. 2020). After carefully

evaluating the record in this case, we conclude that the prosecution presented non-generic

evidence for all the counts in the indictment, including Count 4. We also conclude that the

State made a proper election in Count 4. Moreover, because the State presented only non-

generic evidence for all the counts of the indictment, the trial court was not required to

provide a modified unanimity instruction to the jury. See Qualls, 482 S.W.3d at 16.

At trial, J.J. testified that there were many instances in which he and the Defendant

had sexual intercourse in the Defendant’s van on a road behind the Defendant’s home. We

note that “where [an] indictment charges that sex crimes occurred over a span of time,

evidence of unlawful sexual contact between the defendant and the victim allegedly

occurring during the time charged in the indictment is admissible.” State v. Rickman, 876

S.W.2d 824, 828 (Tenn. 1994). However, to ensure juror unanimity, the prosecution,

pursuant to the election of offenses doctrine, has a duty to elect for each count charged the

specific incident on which the jury should deliberate to determine the defendant’s guilt.

Qualls, 482 S.W.3d at 9-10 (“The election doctrine refers to the prosecutor’s duty in a case

where evidence of multiple separate incidents is introduced to elect for each count charged

the specific incident on which the jury should deliberate to determine the defendant’s

guilt.”). The election requirement supplements the general unanimity instruction and helps

“ensure the jury understands its obligation to agree unanimously that the defendant

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committed the same criminal act before it may convict the defendant of a criminal offense.”

Id. at 10 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)).

The Tennessee Supreme Court has recognized that “‘[t]here is no right to a perfect

election, and indeed, . . . the election requirement may be satisfied in a variety of ways.’”

Qualls, 482 S.W.3d at 10 (quoting State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015)).

In fact, “‘[a]ny description that will identify the prosecuted offense for the jury is

sufficient.” Knowles, 470 S.W.3d at 424. The State may elect offenses by narrowing the

multiple incidents by asking the victim to relate any of the incidents to a specific month,

by identifying a particular type of abuse, or by specifying the unique surroundings or

circumstances that help identify an incident. Qualls, 482 S.W.3d at 10-11; State v. Shelton,

851 S.W.2d 134, 138 (Tenn. 1993). However, because the election requirement applies to

offenses, not the facts supporting each element of the offense, a jury is not required to

“unanimously agree as to facts supporting a particular element of a crime so long as the

jury agrees that the appellant is guilty of the crime charged.” State v. Adams, 24 S.W.3d

289, 297 (Tenn. 2000); see Knowles, 470 S.W.3d at 424.

Although J.J. was unable to provide a specific date for the offense charged in Count

4, he was able to sufficiently identify this offense by providing specific details and

distinguishing characteristics that accompanied this offense. J.J. testified that he and the

Defendant had sexual intercourse in the van on the road behind her home on multiple

occasions. By his testimony, J.J. identified the type of sexual penetration, namely sexual

intercourse, and identified the location and specific circumstances, namely on a road

behind the Defendant’s house and in the Defendant’s van. Thereafter, the State properly

elected one of the distinct offenses that was supported by J.J.’s testimony in Count 4.

Specifically, for Count 4, the prosecutor made the following election, “[O]n a road directly

behind their house, [the Defendant] took him there and they had sexual intercourse in the

van.” Although the proof established that this type of incident occurred multiple times,

only one offense was charged, and one offense was elected. Accordingly, the prosecution’s

election of the type of sexual penetration—intercourse—as well as the place and the

particular circumstances surrounding this event was “sufficiently specific . . . to safeguard

the defendant’s right to a unanimous verdict” on this offense. Knowles, 470 S.W.3d at

424-25. For these reasons, we conclude that the State’s election in Count 4 was proper.

We also note that the offense elected in Count 4 was sufficiently distinguishable from the

offense in Count 2 because in Count 2, J.J. testified that the Defendant dropped off her

kids, they went to the end of a dead-end road, the van would not start, the Defendant had

to go door-to-door to get help, and the Defendant told the man with the jumper cables that

J.J. was her son and they were looking at the house that was for sale at the end of the dead-

end road, which are all facts that distinguished Count 2 from the distinct offense charged

in Count 4.

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As an alternate argument for the modified unanimity instruction, the Defendant

claims that J.J. exaggerated his “vague testimony” that they had sex “down the road” beside

her house “multiple times” that included “oral—all of—everything. Oral sex, everything.”

Noting that the definition of “sexual penetration” includes “sexual intercourse, cunnilingus,

fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s

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

any other person’s body,” the Defendant asserts that because J.J. testified that they engaged

in “everything,” this meant that every type of sexual penetration occurred, even though J.J.

never testified that many of these types of sexual penetration occurred on other occasions.

We have already recognized that J.J. testified to, and the State elected, the specific type of

sexual penetration—sexual intercourse—in Count 4. Accordingly, the Defendant is not

entitled to relief on this issue.

B. Sufficiency of the Evidence. The Defendant also argues that the evidence is

insufficient to sustain her aggravated statutory rape conviction in Count 4, even though she

acknowledges in another section of her brief that “the evidence was sufficient for

conviction on aggravated statutory rape for all five counts” because “there was no dispute

she had sexual relations with a minor, and clearly the jury did not accredit her testimony

that she acted out of duress.” In any case, the Defendant claims the evidence is insufficient

to sustain her conviction in Count 4 because J.J. never specifically testified that the elected

sexual act, sexual intercourse, occurred in the van behind her house. Instead, she asserts

that J.J. testified that he and the Defendant engaged in “[o]ral—all of—everything. Oral

sex, everything. The Defendant argues that “the literal meaning of [J.J.’s testimony] was

that [he and the Defendant] engaged in every possible sex act, which cannot fairly be

understood to mean any particular sex act other than ‘oral sex,’ which he specifically

mentioned.” Although the Defendant acknowledges that the State asked the follow-up

question, “Did you have intercourse during those periods of time?,” and J.J. responded

affirmatively, she claims that J.J.’s response “only mean[t] they engaged in intercourse

during a period of time in which they were also engaging in certain acts in the van, not that

they necessarily engaged specifically in intercourse in the van.”

Aggravated statutory rape is the “unlawful sexual penetration of a victim by the

defendant, or of the defendant by the victim when the victim is at least thirteen (13) but

less than eighteen (18) years of age and the defendant is at least ten (10) years older than

the victim.” Tenn. Code Ann. § 39-13-506(c). The Defendant cites State v. Edward G.

Jameson, No. M2020-00945-CCA-R3-CD, 2021 WL 3360976 (Tenn. Crim. App. Aug. 3,

2021), to support her claim that the evidence is insufficient to sustain her conviction in

Count 4. In Edward G. Jameson, this court reversed a conviction for incest where the

victim’s testimony “clearly establishe[d] that she and the Defendant engaged in a sexual

relationship over a period of years” but the “[t]he victim never confirmed, denied, or even

commented on the State’s subsequent assertion that the victim and the Defendant had sex

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in the graveyard[,]” which was the location included in the State’s election for this offense.

Id. at *5. Unlike the victim in Edward G. Jameson, J.J. testified that the Defendant brought

him in her van to the road behind her house “to have sex multiple times.” J.J. then

confirmed that the type of sex the Defendant had with him on those occasions included

sexual intercourse. The jury, based on its verdict in this count, clearly interpreted J.J.’s

testimony to mean that the Defendant had sexual intercourse with J.J. in the van on the

road behind her house, which we believe was a reasonable interpretation after carefully

evaluating the trial transcript in this case. As we previously recognized, this court “neither

re-weighs the evidence nor substitutes its inferences for those drawn by the jury.” Wagner,

382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659). In this case, as opposed to the

Edward G. Jameson case, there is no question that J.J. supplied sufficient evidence to

sustain this count. Accordingly, we conclude that the Defendant is not entitled to relief on

this issue.

IV. Admission of Husband’s Statements. Although the Defendant concedes that

she waived this court’s plenary review of this issue by failing to make contemporaneous

objections at trial, she nevertheless asserts that the admission of several hearsay statements

by her husband, through four witnesses during trial and the State’s reference to such

hearsay during closing argument, violated her due process and confrontation rights and

constituted plain error. She asserts that “the proper way for the State to introduce this

evidence would have been for the State to call [the Defendant’s husband] as a witness to

inquire as to his knowledge of the relationship [between the Defendant and J.J.],” which

would have enabled the defense to cross-examine him “about the basis for his beliefs,

whether he made the statements in question, and what he meant if he indeed made the

statements.” The Defendant claims that, even in the absence of an objection, the trial court

should have interjected and instructed the jury to disregard the testimony and the State’s

argument regarding these hearsay statements. The Defendant insists that the State used

testimony from several witnesses to show that the Defendant’s trial testimony was

untruthful and that the references to the hearsay statements from the Defendant’s husband

were “fundamentally intertwined with the witnesses’ own stories and provided damning

additional evidence suggesting [the Defendant]’s own husband was aware of the offensive

conduct.” In response, the State contends that the Defendant has waived any issues

regarding these hearsay statements and that the Defendant is not entitled to plain error

relief. We agree with the State.

The Defendant asserts that four witnesses testified to hearsay statements allegedly

made by her husband, Brian Tice, who did not testify at trial, and that the State referenced

one of these hearsay statements during its closing argument, as shown below:

- 49 -

(1) Wendy Mallard testified that just after the Defendant’s husband, Brian

Tice, arrived at her home in North Carolina, Brian “had told [Mallard’s]

husband ‘I think I know what this is about. It’s about [J.J.], isn’t it?’”

(2) Dawn Lesueur testified that the Defendant said her husband was “jealous

of [J.J.] and [J.J.] being around.”

(3) Eric Lesueur testified that the Defendant’s husband “asked me was she

having an affair.”

(4) Eric Lesueur testified that the Defendant’s husband “asked me not to say

anything to anybody, they were working it out.”

(5) K.J. testified that when she suggested that the Defendant was spending

too much time with J.J., the Defendant “said that her husband, Brian, had

said the same thing.”

(6) The State commented during its closing argument: “You heard

testimony that Brian Tice said, this is about [the Defendant] and [J.J.], isn’t

it?”

At the motion for new trial hearing, appellate counsel argued that “there were a few

witnesses who testified to things that [the Defendant’s husband, Brian Tice] had told

[them][,]” and that the State had referenced one of Brian Tice’s hearsay statements during

its closing. He argued that this evidence, which was offered for the truth of the matter

asserted, not only constituted inadmissible hearsay but also violated the confrontation

clause because the Defendant’s husband did not testify at trial and was not subject to cross-

examination. While appellate counsel acknowledged that trial counsel failed to object to

this evidence, he asserted that admission of this “damning evidence” amounted to “plain

error.” The trial court responded that trial counsel was “very competent and effective and

experienced” and did not object to this evidence, which could have been for “tactical

reasons.”

The record shows that the Defendant never objected at trial on the basis that the

aforementioned statements were inadmissible hearsay and violated the Defendant’s

constitutional rights. Accordingly, these issues are waived. See Tenn. R. App. P 36(a)

(“Nothing in this rule shall be construed as requiring relief be granted to a party responsible

for an error or who failed to take whatever action was reasonably available to prevent or

nullify the harmful effect of an error.”); see also State v. Smith, 24 S.W.3d 274, 280 (Tenn.

2000) (holding that when a defendant fails to object to the admissibility of evidence, “‘the

evidence becomes admissible notwithstanding any other Rule of Evidence to the contrary,

- 50 -

and the jury may consider that evidence for its ‘natural probative effects as if it were in law

admissible’”) (quoting State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981)).

Nevertheless, the Defendant argues that the admission of these statements amounted

to plain error. The plain error doctrine states that “[w]hen necessary to do substantial

justice, an appellate court may consider an error that has affected the substantial rights of

a party at any time, even though the error was not raised in the motion for a new trial or

assigned as error on appeal.” Tenn. R. App. P. 36(b). In order for this court to find plain

error,

“(a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a substantial

right of the accused must have been adversely affected; (d) the accused did

not waive the issue for tactical reasons; and (e) consideration of the error is

‘necessary to do substantial justice.’”

Smith, 24 S.W.3d at 282 (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

App. 1994)). “[T]he presence of all five factors must be established by the record before

this Court will recognize the existence of plain error, and complete consideration of all the

factors is not necessary when it is clear from the record that at least one of the factors

cannot be established.” Id. at 283. “It is the accused’s burden to persuade an appellate

court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355

(Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[P]lain error must

be of such a great magnitude that it probably changed the outcome of the trial.” Adkisson,

899 S.W.2d at 642 (citations and internal quotations marks omitted).

The Defendant contends that in admitting the aforementioned hearsay statements,

two “clear and unequivocal rule[s] of law [were] breached,” namely the hearsay rule and

the right to confrontation because these hearsay statements were made by a non-testifying

witness and were used against the Defendant. The Defendant also asserts that “[t]here is

no possible reason to believe defense counsel would have failed to object to these

statements for tactical reasons” because “nothing could be gained by allowing introduction

of the testimony or the closing argument.” Finally, the Defendant maintains that

consideration of the error is necessary to do substantial justice because these hearsay

statements were “highly prejudicial” because they allowed the State to insinuate that the

Defendant’s husband was aware of an inappropriate relationship and once it was

discovered by others, the Defendant and her husband conspired to conceal it.

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). “A ‘statement’ is (1) an oral or written assertion[.]” Tenn. R. Evid. 801(a).

- 51 -

Generally, hearsay is not admissible during a trial, unless the statement falls under one of

the exceptions to the rule against hearsay. Tenn. R. Evid. 802. Whether a statement fits

under one of the exceptions to the hearsay rule is a question of law subject to de novo

review by this court. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

Statement (1) is hearsay. Brian Tice said, “I think I know what this is about. It’s

about [J.J.], isn’t it?,” to Wendy Mallard’s husband while Wendy Mallard was present, and

then Wendy Mallard testified at trial about what Brian Tice said. While the phrase, “It’s

about [J.J.], isn’t it?,” is actually in the form of a question, the circumstances in which it

was said suggest that Brian Tice intended the phrase as an assertion, not a question. See

State v. Brown, 373 S.W.3d 565, 573 (Tenn. 2011) (noting that the defendant’s question

was actually an assertion offered for the truth of the matter asserted but ultimately

concluding that the question was admissible because it was an admission by a party

opponent); State v. Flood, 219 S.W.3d 307, 314-15 n.5 (Tenn. 2007) (recognizing that

questions are not hearsay if they are “not offered to prove the truth of their content”).

Accordingly, we conclude that Brian Tice’s question was a statement offered to prove the

truth of the matter asserted, namely that he was, to some degree, aware of the Defendant’s

inappropriate relationship with J.J., and that this statement should not have been admitted

if the defense had objected to it on the ground of hearsay.

Statement (2) is merely an admission by the Defendant, as a party opponent. Dawn

testified about the Defendant’s statement, and the Defendant’s statement included a

description that her husband was “jealous of [J.J.] and [J.J.] being around,” which is not

hearsay. Therefore, admission of this statement was proper.

Statement (3) qualifies as an excited utterance, which is an exception to the hearsay

rule. Under Tennessee Rule of Evidence 803(2), an “excited utterance” not excluded by

the hearsay rule is “[a] statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.” In order to

meet the excited utterance exception, (1) a startling event or condition must occur that

suspends the normal, reflective thought processes of the declarant, (2) the declarant’s

statement must relate to this startling event or condition, and (3) the declarant must make

this statement while under the stress or excitement from the event or condition. State v.

Franklin, 308 S.W.3d 799, 823 (Tenn. 2010). At trial, Eric Lesueur testified that he

“startled” Brian Tice “early in the morning” around 3:30 or 4:00 a.m. with a plane ticket

in hand and “got him out of bed,” and Brian Tice “kept asking [him] on the way to the

airport what this was all about” and “finally . . . asked [him] was [his wife] having an

affair[,]” and Eric told Brian “that she was [having an affair] or it was thought that she

was.” Here, the startling event was Brian Tice being unexpectantly awakened in the very

early hours of the morning and told that he had to fly to North Carolina to see his wife.

Brian Tice’s subsequent statement about whether his wife was having an affair related to

- 52 -

the startling event, and we believe that Brian Tice made this statement while he was still

under the stress from the startling event. Because statement (3) qualifies as a hearsay

exception, it was properly admitted.

Statement (4) is hearsay. Eric Lesueur testified that Brian Tice called him “later

that day” on “Saturday afternoon” after arriving in North Carolina. He said Brian “asked

[him] not to say anything to anybody, [he and his wife] were working it out, that . . . the

victim was going to be out of their life and this, that, and the other, and just give them some

time.” Eric stated that he told Brian “okay” but asserted that he had “told [Brian] when

[he] put him on the plane . . . that he needed to take this [information regarding the

inappropriate sexual relationship between J.J. and his wife] to the church immediately.”

Eric then testified that because Brian Tice never informed the church about his wife’s

criminal conduct, Eric contacted Mike England, a member of the church who was retired

law enforcement, about the incident, which resulted in England contacting the church and

the allegations against the Defendant coming to light. Again, although what was said is

actually in the form of a question, the surr

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