Petition for Writ of Certiorari — Mainor Canales, Petitioner v. Tennessee

Supreme Court briefFeb 14, 2022

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FILED

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

11/17/2021

Clerk of Ihe

Appellate Courts

MAINOR CANALES v. STATE OF TENNESSEE

Circuit Court for Sevier County

No. 19414-11

No. E2020-01040-SC-R11-PC

ORDER

Upon consideration of the application for permission to appeal of Mainor Canales

and the record before us, the application is denied. Because a litigant may not proceed pro

se while also represented by counsel, the separate application filed pro se by Mainor

Canales is hereby dismissed.

PER CURIAM

FILED

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 29, 2021

08/03/2021

Clerk of the

Appellate Courts

MAINOR CANALES v. STATE OF TENNESSEE

Circuit Court for Sevier County

No. 19414-11

No. E2020-01040-CCA-R3-PC

JUDGMENT

Came Petitioner, Mainor Canales, by and through counsel, and the State, by the

Attorney General, and this case was heard on the record on appeal from the Circuit Court

for Sevier County; and upon consideration thereof, this court is of the opinion that there is

no error in the judgment of the post-conviction court.

It is, therefore, ordered and adjudged by this court that the judgment of the post

conviction court is affirmed, and the case is remanded to the Circuit Court for Sevier

County for execution of the judgment of that court and for collection of costs accrued

below.

Because it appears to the Court that Petitioner, Mainor Canales, is indigent, costs

are taxed to the State of Tennessee.

Robert L. Holloway, Jr., Judge

James Curwood Witt, Jr., Judge

Camille R. McMullen, Judge

%■

No.

IN THE UNITED STATES SUPREME COURT

MAINOR CELIN AVILEZ CANALES - PETITIONER

Vs.

STATE OF TENNESSEE - RESPONDENT

On Petition For Writ Of Certiorari To The Court Of Criminal

Appeals of Tennessee For The Eastern Division, Case No.

E2020-01040-CCA-R3-PC

PETITION FOR WRIT OF CERTIORARI

APPENDIX “A”

Mainor Canales v. Stale of Tennessee, No. E2020-01040-CCA-R3-PC, 2021 WL

3363454 (Tenn.Crim.App. Jun 29, 2021) perm. app. denied Nov. 17, 2021.

■»

WESTLAW

Canales v. State

Court of Criminal Appeals of Tennessee, AT KNOXVILLE. ; August3,2021 j SlipCopy

2021 WL3363454

(Approx 7 pages/

2021 WL 3363454

Only the Wcstlaw citation is currently available.

SEE RULE 19 OF THE RULES OF THE COURT OF CRIMINAL APPEALS REIATING TO

PUBLICATION OF OPINIONS AND CITATION OF UNPUBLISHED OPINIONS.

Court of Criminal Appeals of Tennessee,

AT KNOXVILLE.

Mainor CANALES

STATE of Tennessee

No. E2020-01040-CCA-R3-PC

Assigned on Briefs June 29, 2021

FILED 08/03/2021

Appeal from the Circuit Court for Sevier County, No. 19414-11, James L. Gass, Judge

Attorneys and Law Firms

Samantha A. McCammon, Sevierville, Tennessee, for the appellant, Mainor Canales.

Herbert H. Siatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant

Attorney General; Jimmy B. Dunn, District Attorney General; and Ron C. Newcomb,

Assistant District Attorney Genera!, for the appellee, State of Tennessee

Robert L. Holloway, Jr., J,, delivered the opinion of the court, in which James Curwood Witt,

Jr., and Camille R. McMullen, JJ., joined.

OPINION

Robert L. Holloway, Jr, J,

'1 Mainor Canales, Petitioner, was convicted of aggravated sexual battery and sentenced to

twelve years’incarceration. State v. Mainor Celin Avilez Canales, No. E2017-01222-CCAR3-CD, 2018 WL 2084957, at *5 (Tenn. Crim App. May 4, 2018). This court affirmed his

conviction on direct appeal. Petitioner filed a pro se post-conviction petition and an amended

petition through counsel, which the post-conviction court dismissed following a hearing. On

appeal, Petitioner argues that he was denied the effective assistance of counsel because

trial counsel (1) failed to investigate and present an expert witness; and (2) deprived him of

his right to a Rule 11 application to appeal to the Tennessee Supreme Court. Following a

thorough review, we affirm the judgment of the post-conviction court.

Factuaf and Procedural History

Trial and Direct Appeal

On direct appeal, this court explained the facts of the case:

[Petitioner] was charged with aggravated rape after he was seen carrying the

semi-conscious and beaten victim across the parking lot of a bar. The victim,

who was severely intoxicated at the time she was assaulted, could not recall

the particulars of the assault. At trial, [Petitioner] asserted that he did not

have intercourse with her and that her injuries were the result of a fall.

Mainor Celin Avilez Canales, 2018 WL 2084957, at '1. At trial, the victim testified that

Petitioner approached her at a bar and that she drank and danced with him. Id.

The victim testified that when she went outside to smoke, she and [Petitioner] were the

only two people outside, and [Petitioner] was touching her and “kept... trying to get [her]

to have sex with him." The victim testified that she grew frustrated and replied. “No,

because you're nothing more than a dirty f***ing Mexican.” She stated that she assumed

(Petitioner] would leave her alone and she turned to continue smoking her cigarette. She

next remembered “spitting out the cherry on my cigarette because it had got knocked into

my mouth partially." The victim testified that she had two burns on her lip, and she was

“not 100% sure if he actually hit me or hit me with something." The victim recalled begging

[Petitioner] to leave her alone, apologizing, and offering to pay him for the drinks. She next

remembered lying on her back with (Petitioner] above her and could recall nothing further

regarding the assault.

Id. The victim's friend, Ms. Angelica Buckner, testified that she saw Petitioner act “handsy"

with the victim. Id. at *2. The bouncer at the bar, Mr. Jesse Parker, also testified that

Petitioner was physically affectionate with the victim. Id. Mr. Raymond Stupplebeen, Mr.

Dakota Johnson, Mr. Dylan Owens, Mr. Jesse Parker, and Ms. Rebecca Kirby all testified

that they saw Petitioner carrying or "dragging" the injured victim, her pants slightly lowered,

outside the bar at approximately 11:00 p.m. Id. at "2-3. This court noted on direct appeal that

"(t]here were no witnesses to testify regarding exactly how the victim sustained her injuries."

Id. at *2.

This court then summarized the medical testimony:

Mr. Bradley Holt, a paramedic, arrived to find the victim unresponsive, with a "pumpknot"

on the right side of her face, other abrasions and lacerations on her face, a bruised torso,

the onset of bruising in her upper extremities, and blood coming from both nostrils. The

victim's shirt was rolled up, her pants were unbuttoned and unzipped but around her waist,

and she was not wearing shoes. The victim did not respond to speech, touch, or painful

stimulation. She remained unresponsive as she was transported in “emergency status,”

but toward the end of the trip she was able to mouth her name and curl into a fetal position

in response to a question asking if she were in pain. Mr. Holt testified that he would have

intubated her but was unable to do so because he did not have the appropriate paralytic

medication. He opined that her injuries were inconsistent with a ground-level fall. Ms.

Cecilia Miller, who was also a paramedic and was driving the ambulance, agreed that the

right side of the victim's face was swollen, scraped, and bloody. The victim was sobbing

and could not speak. Ms. Miller confirmed that the victim s shirt was up and that her pants

were unbuttoned and unzipped but not pulled down. She would have recommended the

use of a helicopter to transport the victim if one had been flying that night. She confirmed

that the injuries were inconsistent with a fall.

"2....

Ms. Misty Stamm, a sexual assault nurse examiner, identified a diagram she made of the

victim's injuries. The victim had multiple abrasions on her face, swelling, redness, injuries

on her right knee, left foot, left shoulder, leg, left elbow, coccyx, and left forearm. Ms.

Stamm also found two tears on the victim's labia minora with a small amount of active

bleeding. She testified that she had “only seen that sort of injury consistent with a sexual

assault,” “[IJikely penetration," but she acknowledged that the tears “[pjossibly” could have

resulted from a consensual sexual act. She also stated that although the victim had a

catheter, she had never seen a catheter cause labial tears. She testified that the motive

behind rape is often control and domination. The victim told Ms. Stamm that she went to a

bar, that a man bought her a shot, that she did not leave [her] drink alone, and that going

outside to smoke was the last thing she recalled.

(Petitioner] presented the testimony of Ms. Tracy Sisto, a licensed registered nurse, to

provide an alternate explanation for some of the victim's injuries. Ms. Sisto, who did not

testify as an expert and had not practiced nursing since 2001, testified that catheterization

can have adverse effects including bladder puncture and irritation. Irritation would cause

burning and pain.

Id. at *3-4.

Petitioner testified through an interpreter that the victim went outside the bar with him and

that she asked him three times to have sex. Id. at ”5. He stated that they never had sex but

that the victim tripped and fell. Id. He said that the fall injured the victim and that he had to

carry her back to the bar. Id. The jury convicted Petitioner of the lesserin-cluded offense of

aggravated sexual battery, for which the trial court imposed a twelve-year sentence, and this

court affirmed his conviction on direct appeal. Id. at *5. *9 Petitioner did not file a Rule 11

application with the Tennessee Supreme Court.

Post-Conviction Petition

Petitioner filed a timely pro se Petition for Post-Conviction Relief and an amended petition

through counsel, arguing in part that trial counsel “failed to conduct a reasonable

investigation into the facts" and “failed to interview, prepare, and subpoena important fact

and expert witnesses.'1 Petitioner also argued that appellate counsel abandoned the case by

failing “to timely notify [Petitioner) of his ability to apply to the [Tennessee] Supreme Court to

hear his matterf,}” denying Petitioner due process and the effective assistance of appellate

counsel.

Post-Conviction Hearing

The post-conviction court held a hearing on the petition. We will limit our discussion of the

post-conviction hearing testimony and the subsequent order from the court to that which is

relevant to the issues raised on appeal.

Trial counsel1 testified that Petitioner retained him for trial. He said that he did not recall

discussing with Petitioner the option of retaining an expert witness. Trial counsel explained

that he was aware of the victim’s medical records and the sexual assault nurse examiner's

report prior to trial. He said that the sexual assault nurse examiner also testified at trial and

that she outlined the victim's injuries. Trial counsel stated that, when the sexual assault

nurse examiner talked about bruising of the victim's labia, he suggested to the jury that the

bruising was a result of catheterization and not sexual penetration. Trial counsel pointed out

that Petitioner “wasn’t convicted of penetration” because the jury acquitted Petitioner of

aggravated rape and convicted Petitioner of aggravated sexual battery. Trial counsel also

argued to the jury that the victim’s injuries were a result of tripping and falling since she was

heavily intoxicated.

‘3 Trial counsel recalled that, at trial, he questioned employees of the bar who testified that

they saw Petitioner and the victim "making out" while these witnesses were outside smoking

cigarettes. Trial counsel said that, depending on the witness, the victim and Petitioner were

seen walking from the bar to El Primo Market anywhere from twenty to forty-five minutes

prior to the victim's returning to the bar with injuries. He explained that no witnesses testified

that the victim cried for help or that there were any sounds of a struggle.

Trial counsel explained that, when this court issued its opinion on direct appeal, he sent a

copy to Petitioner in prison along with a letter, dated May 8, 2018, informing Petitioner that, if

he wished to appeal, he had sixty days to do so. The letter from trial counsel to Petitioner

reads in part:

Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, if you

wish to file an application for permission to appeal in the Tennessee Supreme

Court, your application must be submitted no later than sixty (60) days from

the date that the Court’s judgment was filed. In this case, the judgment was

filed on May 4, 2018.

(emphasis in original).

Trial counsel explained that his assistant was a registered court interpreter with the

Administrative Office of the Courts for the Spanish language and that his assistant translated

the letter from English into Spanish. He said that he sent both the English and Spanish

letters to Petitioner. Petitioner replied to trial counsel via mail in two different letters, dated

June 5, 2018, and July 2, 2018, both of which requested a copy of his file. Trial counsel

stated that he sent Petitioner a copy of his file on July 18, 2018. Trial counsel explained that

he did not believe there was a basis to appeal this court’s opinion to the Tennessee

Supreme Court, especially since Petitioner never expressed a desire to appeal.

On cross-examination, trial counsel stated that he always followed the same procedure

regarding notice to clients about a Rule 11 application and that only one of his clients ever

wished to proceed on a Rule 11.

Trial counsel explained that he called a witness at trial, nurse Tracy Sisto, to testify about the

possible damage caused by a Foley catheter. Trial counsel recalled that the trial court would

not certify Ms. Sisto as an expert but allowed her to "testify from her knowledge and

experience having dealt with that particular issue.'1 Trial counsel stated that he did not know

of any other issue at trial that could have been addressed with an expert witness. Trial

counsel recalled that, on cross-examination, the sexual assault nurse examiner testified that

the victim's injuries could have occurred from consensual sexual contact.

Petitioner testified that he did not understand the legal process for trial because he did not

understand American laws. He said that trial counsel always used an interpreter to speak to

him. Petitioner stated that he did not recall having any conversations with trial counsel about

hiring an expert witness.

Petitioner recalled receiving a letter from trial counsel explaining that he had sixty days to

appeal this court's decision to the Tennessee Supreme Court. He explained, "Well, from my

perspective,... my understanding was I was going to have to get a different person to be

able to do that kind of an appeal. I didn't know if he was going to be the one to do that or

not." Petitioner stated, “I would have needed help because I’m not sure how to do an appeal

to the [Tennessee] Supreme Court and would not have known what they would have needed

included in that appeal." Petitioner stated that he never asked trial counsel about the

process for appealing to the Tennessee Supreme Court and that he thought a postconviction petition was the “next step," based on "what people had said to [Petitioner] at the

prison.”

'4 On cross-examination, Petitioner agreed that he received a letter explaining a Rule 11

appeal but said that he did not know who was supposed to file that appeal for him. He

agreed that trial counsel was “constantly available" for questions and that he never asked

trial counsel about a Rule 11 appeal.

Post-Conviction Hearing Order of Dismissal

The post-conviction court dismissed the post-conviction petition in a written order. It

concluded that trial counsel was not deficient for not hiring a medical expert, noting that trial

counsel "did offer at trial a nurse who did testify about catheter use and tears that could

result from the use or application of a catheter, which were similar to that experienced by the

victim.” The post-conviction court observed that Petitioner “was acquitted of aggravated

rape, and therefore the penetration issues that could be accompanied by other medical

testimony would be moot in this case," and the court found “no deficiency in counsel's

actions not seeking further expert testimony on the issue.”

The post-conviction court also found that trial counsel sent Petitioner a letter, in both English

and Spanish, explaining that an application to appeal to the Tennessee Supreme Court was

due within sixty days. It found that Petitioner took no action to appeal or to ask trial counsel

to appeal within that time frame. The post-conviction court concluded that trial counsel was

not deficient in any way and that, even if trial counsel had been deficient, "the likelihood of

any different outcome both at the trial and on appeal is nonexistent.]"

Petitioner now timely appeals.

Analysis

On appeal, Petitioner argues that trial counsel failed to conduct a reasonable investigation

into the facts and failed to interview, prepare, and subpoena important "fact and expert

witnesses.” Petitioner also argues that trial counsel “failed to timely notify [Petitioner] of his

ability to apply to the [Tennessee] Supreme Court to hear his matter[,]" denying Petitioner

due process and the effective assistance of appellate counsel.

The State responds that Petitioner has failed to establish that trial counsel was deficient by

failing to hire an expert medical witness or that any deficiency prejudiced him. It asserts that

Petitioner was not denied his right to appeal to the Tennessee Supreme Court.

Post-Conviction Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove all factual

allegations by clear and convincing evidence. Jaco v. State, 120 S W.3d 828, 830 (Tenn.

2003). Post-conviction relief cases often present mixed questions of law and fact. See Fields

v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by the post-conviction

court's factual findings unless the evidence preponderates against such findings. Kendrick v.

State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing the post-conviction court's factual

findings, this court does not reweigh the evidence or substitute its own inferences for those

drawn by the post-conviction court, /d.; Fields, 40 S.W.3d at 456 (citing Henley v. State, 960

S W.2d 572, 578 (Tenn. 1997)). Additionally, "questions concerning the credibility of the

witnesses, the weight and value to be given their testimony, and the factual issues raised by

the evidence are to be resolved by the [post-conviction court]." Fields, 40 S.W.3d at 456

(citing Henley. 960 S W.2d at 579); see also Kendrick. 454 S W.3d at 457. The trial court s

conclusions of law and application of the law to factual findings are reviewed de novo with

no presumption of correctness. Kendrick, 454 S.W.3d at 457.

Ineffective Assistance of Counsel

*5 The right to effective assistance of counsel is safeguarded by the Constitutions of both

the United States and the State of Tennessee. U.S. Const, amend VI; Tenn. Const art. I, §

9. In order to receive post-conviction relief for ineffective assistance of counsel, a petitioner

must prove; (1) that counsel's performance was deficient; and (2) that the deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v.

Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same standard for

ineffective assistance of counsel applies in both federal and Tennessee cases). Both factors

must be proven in order for the court to grant post-conviction relief. Strickland, 466 U.S. at

687; Henley, 960 S.W.2d at 580; Goad v. Sfafe, 938 S.W.2d 363, 370 (Tenn. 1996).

Accordingly, if we determine that either factor is not satisfied, there is no need to consider

the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v. State,

126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel’s performance “requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time." Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579.

We will not second-guess a reasonable trial strategy, and we will not grant relief based on a

sound, yet ultimately unsuccessful, tactical decision Granderson v. State, 197 S.W 3d 782,

790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel's performance is effective if the

advice given or the services rendered are within the range of competence demanded of

attorneys in criminal cases." Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975)); see also Goad, 938 S.W 2d at 369. In order to prove that counsel

was deficient, the petitioner must demonstrate “that counsel’s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing

professional norms." Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see also

Baxter, 523 S.W.2d at 936.

Even if counsel's performance is deficient, the deficiency must have resulted in prejudice to

the defense. Goad, 938 S. W.2d at 370. Therefore, under the second prong of the Strickland

analysis, the petitioner “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

(quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted)

1. Failure to Call Witnesses

When a petitioner claims that trial counsel was ineffective for failing to discover, interview, or

present a witness in support of the petitioner's defense, such witness should be presented at

the post-conviction hearing. Sfafe v. Black. 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). As

this court has previously stated:

As a general rule, this is the only way the petitioner can establish that (a) a

material witness existed and the witness could have been discovered but for

counsel's neglect in his investigation of the case, (b) a known witness was

not interviewed, (c) the failure to discover or interview a witness inured to his

prejudice, or (d) the failure to have a known witness present or call the

witness to the stand resulted in the denial of critical evidence which inured to

the prejudice of the petitioner. It is elementary that neither a trial judge nor an

appellate court can speculate or guess on the question of whether further

investigation would have revealed a material witness or what a witness's

testimony might have been if introduced by defense counsel.

Id. Without presenting the witness's testimony at the post-conviction hearing, the petitioner

generally cannot establish prejudice under Strickland Id. at 758

Here, the post-conviction court noted that trial counsel presented testimony from a witness

who explained how a catheter could cause the damage to the victim's labia. Moreover, trial

counsel cross-examined the State's witness who agreed that consensual sex could have

caused the victim's injuries. Therefore, trial counsel was not deficient for failing to secure an

expert witness to testify to the same thing. Further, Petitioner cannot establish prejudice

because he failed to present at the post-conviction hearing an expert witness who would

have testified on his behalf. Id. Petitioner is not entitled to relief on this issue.

2. Failure to File Rule 11 Application to Appeal

*6 A party is allowed sixty days from the date of the entry of the judgment in the Tennessee

Court of Criminal Appeals to file an application to appeal to the Tennessee Supreme Court

pursuant to Tennessee Rule of Appellate Procedure 11. Robert Lee Yates v State, No.

M2011-00961-CCA-R3-PC. 2012 WL 12931437, at *6 (Tenn. Crim. App. Nov. 2, 2012), no

perm. app. filed: Tenn. R. App. P. 11. "Unilateral termination of an appeal to the supreme

court without notice to the client has been deemed ineffective assistance of counsel.”

Guadalupe Mendez v. State, No. 01C01-9703-CC-00076, 1998 WL 345348, at *4 (Tenn.

Crim. App. June 30. 1998), perm. app. denied (Tenn. Feb. 1, 1999). Upon the determination

that a post-conviction petitioner "was deprived of the right to request an appeal pursuant to

Rule 11," the trial court or this court “shall enter an order granting the petitioner a delayed

appealf.]" Tenn. R. S. Ct. Rule 28, § 9(D){l)(b)(i); see also Tenn. Code Ann. § 40-30-113(a)

(2020); 'Stokes v. State, 146 S. W.3d 56, 59 (Tenn. 2004). A petitioner is not required “to

establish that he would have been granted relief had counsel filed the application for

permission to appear to be entitled to a delayed appeal. JayH. Chambers v. State, No.

E2008-02149-CCA-R3-PC, 2010 WL 444700, at *4 (Tenn. Crim. App. Feb. 9, 2010).

Here, trial counsel sent Petitioner a letter in both English and Spanish, stating, “if you wish to

file an application for permission to appeal in the Tennessee Supreme Court, your

application must be submitted no later than sixty (60) days from the date that the Court's

judgment was filed." (emphasis in original). Petitioner wrote back to trial counsel requesting

a copy of his file, which trial counsel provided. Petitioner never requested that trial counsel

file the application to the supreme court, nor did he ask trial counsel any questions about the

procedure, despite admitting that trial counsel was always available to him to answer

questions. We conclude that trial counsel was not deficient for failing to file a Rule 11

application because he gave Petitioner ample notice and because Petitioner never

requested that he file an application. Petitioner is not entitled to relief on this issue.

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

All Citations

Slip Copy, 2021 WL 3363454

Footnotes

The same attorney served as both trial counsel and appellate counsel. For the

sake of clarity, we will refer to him as “trial counsel" whether discussing trial or

appellate issues.

End of

Document

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A -

No.

IN THE UNITED STATES SUPREME COURT

MAINOR CELIN AVILEZ CANALES - PETITIONER

Vs.

STATE OF TENNESSEE - RESPONDENT

On Petition For Writ Of Certiorari To The Court Of Criminal

Appeals of Tennessee For The Eastern Division, Case No.

E2020-01040-CCA-R3-PC

PETITION FOR WRIT OF CERTIORARI

APPENDIX “B”

State of Tennessee v. Mainor Celin Avilez Canales, No. E2017-01222-CCA-R3-CD

(Tenn.Crim.App. Mar. 28, 2018).

WE ST LAW

State v. Canales

Court of Criminal Appeals of Tennessee, AT KNOXVILLE ; May 4, 2018

Slip Copy

2018 WL 2064957 (Approx. 8 pages)

2018 WL 2084957

Only the Westlaw citation is currently available.

SEE RULE 19 OF THE RULES OF THE COURT OF CRIMINAL APPEALS RELATING TO

PUBLICATION OF OPINIONS AND CITATION OF' UNPUBLISHED OPINIONS.

Court of Criminal Appeals of Tennessee,

AT KNOXVILLE.

STATE of Tennessee

Mainor Celin Avilez CANALES

No. E2017-01222-CCA-R3-CD

Assigned on Briefs March 28, 2018

FILED 05/04/2018

Appeal from the Circuit Court for Sevier County, No. 19414-11, Walter C Kurtz, Senior

Judge

Attorneys and Law Firms

Wiliam Lee Wheatley, Sevierville, Tennessee, for the appellant, Mainor Avilez Canales.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Jimmy B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant District

Attorney General, for the appellee, State of Tennessee.

John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr.,

and J. Ross Dyer, JJ., joined.

OPINION

John Everett Williams, J.

The Defendant, Mainor Celin Avilez Canales, was convicted after a jury trial of aggravated

sexual battery and sentenced to serve twelve years in prison. The Defendant appeals,

contending that the jury instructions did not adequately specify the mens rea of the offense

and that the trial court improperly enhanced the sentence. After a thorough review of the

record, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

*f The Defendant was charged with aggravated rape after he was seen carrying the semi

conscious and beaten victim across the parking lot of a bar. The victim, who was severely

intoxicated at the time she was assaulted, could not recall the particulars of the assault. At

trial, the Defendant asserted that he did not have intercourse with her and that her injuries

were the result of a fall.

The victim and her friend, Ms. Angelica Buckner, met each other for drinks at a bar shortly

after 9:00 p.m. on January 31, 2014. The victim testified that the Defendant and his friend

approached her and Ms. Buckner at the bar. The Defendant was speaking English, and the

victim could generally understand him. She had trouble with "[v]ery few' words that he

spoke. The victim testified that the Defendant attempted to dance with her but that she did

not want to dance. Instead, the Defendant danced behind her as she was trying to get her

friend to dance in the bar area. The victim testified that the Defendant attempted to put his

hands on her bare hips under her clothing, and she removed his hands but allowed him to

dance with his hands on her hips outside her clothing. The victim stated that she did not hug

or kiss the Defendant at any time.

The victim drank five and one-half drinks: she had two mixed drinks with Ms. Buckner when

she first arrived, drank a shot that the Defendant's friend bought her, drank two shots which

the Defendant had bought for herself and Ms. Buckner, and drank half of Ms. Buckner's

mixed drink. She recalled speaking with the bouncer at the bar, who offered to remove the

Defendant, and she testified that she told the bouncer that "he wasn't bothering us at the

time." The victim went outside to smoke a cigarette on the front patio area of the bar, and the

Defendant followed her.

The victim testified that when she went outside to smoke, she and the Defendant were the

only two people outside, and the Defendant was touching her and "kept... trying to get me to

have sex with him.” The victim testified that she grew frustrated and replied, “No, because

you're nothing more than a dirty f*’*ing Mexican.” She stated that she assumed the

Defendant would leave her alone and she turned to continue smoking her cigarette. She

next remembered "spitting out the cherry on my cigarette because it had got knocked into

my mouth partially.” The victim testified that she had two burns on her lip, and she was “not

100% sure if he actually hit me or hit me with something." The victim recalled begging the

Defendant to leave her alone, apologizing, and offering to pay him for the drinks. She next

remembered lying on her back with the Defendant above her and could recall nothing further

regarding the assault.

The victim acknowledged that in all of her prior statements and in her testimony at the

preliminary hearing, she had stated that she remembered nothing between going outside to

smoke and waking up in a hospital. The victim explained that she had tried very hard to

remember the assault and had spoken with some of the witnesses from the bar to that end.

In May or June 2014, she recalled the additional snippets to which she had testified. She still

could not recall any further information. She did not inform the prosecution or anyone else

about the information she had recalled until the day before trial because she did not think it

would be useful until trial. The victim stated that she did not unzip or unbutton her pants, did

not pull up her shirt, and did not consent to have intercourse with the Defendant. She

acknowledged having a boyfriend but asserted that she was not fabricating an assault to

protect that relationship.

’2 Ms. Buckner agreed that the Defendant and his friend approached the victim and Ms.

Buckner "periodically” at the bar. The victim was wearing jeans, a blouse, and flip-flops. Ms.

Buckner consumed one beer, one-half of a "gross” mixed drink, and one to two shots. She

testified that the Defendant was "handsy” with her and with the victim and that Ms. Buckner

repeatedly told him to leave them alone. Ms. Buckner testified that she became frustrated

and used "inappropriate language" to make the Defendant leave. Ms. Buckner told the

Defendant, “We do not f*’* Mexicans.’’ The Defendant replied that he was from Colombia.

She acknowledged that she spoke with the bouncer at the bar and that while she did

mention that the men would not leave them alone, she did not say she felt uncomfortable.

She explained that she believed she had made it clear to the men that they should not

bother her anymore. After Ms. Buckner made her comment, the Defendant and his friend left

the women alone. The victim went outside to smoke a short time later.

Mr Jesse Parker was working as a bouncer at the bar and recognized the Defendant, who

was a regular customer. Mr. Parker noticed the Defendant speaking with the victim and Ms.

Buckner, and Mr. Parker checked on the victim and Ms. Buckner while the Defendant was

gone to make sure that they were not uncomfortable with his attention. He testified that he

witnessed the victim kiss the Defendant and saw some “pretty strong hugging" between the

women and the Defendant.

There were no witnesses to testify regarding exactly how the victim sustained her injuries.

However, numerous witnesses who were outside near a back kitchen entrance to the bar

saw the Defendant with the injured and incoherent victim shortly after 11:00 p.m.

Mr. Raymond Stupplebeen was outside the kitchen entrance when he saw the Defendant

and victim behind the restaurant1 next door, “circling each other." He testified that it looked

like they were dancing but that “something wasn’t right. The body language wasn’t right." He

elaborated that part of what raised a “red flag" was that he did not know where the victim

and the Defendant had come from despite the fact that he was smoking his second or third

cigarette when he noticed them. He saw the victim fall on her behind, and the Defendant

stood over her for a minute and "went down to almost get her," at which point “her arms kind

of went up." He pointed out to the others that he felt something was wrong, but no one

addressed the matter until a few minutes later, when the Defendant picked up the victim “in a

bear hug position with her arms and her legs kind of dangling down,” her feet limp, and her

face hidden. The victim's pants were pulled down slightly, exposing her lower back and

upper buttocks.

The Defendant carried the victim in one direction until he saw the people gathered near the

kitchen entrance, at which point he changed his direction toward the parking lot. Mr.

Stupplebeen approached the Defendant and circled him a few times, trying to see the

victim's face. He felt that the Defendant’s movements were calculated to hide the victim's

face. When the others who were outside shouted for the Defendant to let the victim go, he

dropped her to the ground ''hard,” and Mr. Stupplebeen could see “road burns or beat marks”

on her face. The victim was missing a shoe. She was unable to move and was propped

against a car by bystanders. Mr. Stupplebeen did not recall the victim reaching for him. He

tried to stop the Defendant from leaving and called 911 while following the Defendant, who

entered the bar. Because the music was loud in the baf and Mr. Stupplebeen would not have

been able to hear the 911 operator, he did not follow the Defendant into the bar, although he

requested others to do so.

Mr. Dakota Johnson was employed at the bar and worked as a bar-back. He recognized the

Defendant as a prior patron of the bar and saw him at the bar on January 31,2014. Mr.

Johnson was smoking a cigarette behind the bar, and he saw the Defendant and victim

behind the air conditioning unit of the restaurant next door. Mr. Johnson stated that “it looked

like he had her pinned up against the wall, and she was kind of trying to get away from him."

The Defendant then “picked her up over his shoulder and started carrying her through the

parking lot and up through the parking lot of the bar where we were all standing at." The

victim appeared to be crying. When Mr. Johnson and another man confronted the

Defendant, he dropped her on the ground. The Defendant explained the victim's injuries by

stating she had fallen, but Mr. Johnson testified he was familiar with injuries from a fall to

concrete and “that's not what happened." Mr. Johnson elaborated that the victim's “face was

—it was bad. She didn't fall." The Defendant recognized Mr. Johnson and said, “My friend.

My friend,” with his hands up. Mr. Johnson and others tried to ask the Defendant to stay, but

he left. The victim “was clothed," and the Defendant was able to communicate in English

with “[a] little bit" of trouble.

‘3 Mr. Dylan Owens, the kitchen manager at the bar, also witnessed the Defendant carry the

victim across the parking lot. He testified that he had previously seen the victim and the

Defendant in a quiet area of the bar, that he saw the victim dancing but not romantically or

with the Defendant, and that he did not see the victim hug or kiss the Defendant. He testified

that Mr. Stupplebeen was the first to see that something was “awry.” Mr Owens was outside

a total of thirty to forty-five minutes and heard a “shuffling" and possible raised voices but

could not clearly distinguish the sound. When he saw the victim and the Defendant, she

appeared intoxicated and could barely walk. Mr. Owens stated that it appeared that the

victim was not just drunk but “like there was something else.” He elaborated that he had

seen the victim in the bar shortly before and that because she "didn't seem to be in the same

state as she was afterwards," he suspected she may have been drugged. Mr Owens said

that the Defendant “more or less had her body and was just kind] of] dragging her," and that

the victim gave “the impression she was maybe lifeless." At one point, the victim fell, and the

Defendant picked her back up. The victim was missing one shoe, her pants were not

fastened, and she had debris in her hair and gravel on her arms. He observed that she

appeared to be “beaten up,” and had sustained red marks, scratches, and bruises. He stated

that as the Defendant approached, the victim “reached her arms" toward Mr. Stupplebeen.

The Defendant told the people outside the bar that he was looking for the victim's friend or

sister, and he went into the bar. Mr. Owens acknowledged having made a previous

statement that the victim and the Defendant “looked like a couple."

Ms. Rebecca Kirby worked in the kitchen of the bar and got off of work at around 11:00 p.m.

She went into the bar area to have a drink and observed the victim and the Defendant

dancing “kind of close” but did not see them hug or kiss. Ms. Kirby went out to the back of

the bar, and she later saw the Defendant and victim behind the restaurant next door. She

stated that they were facing each other and "looked like they were making out.” Ms. Kirby

testified that the victim fell three or four times and that she “would hold her arms up, and he

would pick her back up.” The Defendant began to carry the victim toward the parking lot in

an unusual manner. Ms. Kirby described him as holding the victim as though he were

“burping a baby,” elaborating that “[i]t wasn’t quite caveman type, but he had her right there."

The victim was “deadweight.” Ms. Kirby stated the Defendant was trying to hide the victim's

face, and when Mr. Stupplebeen approached, the victim held her arms out to Mr.

Stupplebeen and to Ms. Kirby "almost like a 'help me’ kind of thing." The Defendant told

them that “he didn't do anything." Ms. Kirby observed that the victim's face was “messed up,"

her clothes were “askew,” she had no shoes or jacket, her pants were undone and around

her hips, and her shirt was unbuttoned and “a little bit’’ askew. The victim asked for Ms.

Buckner. Ms. Kirby estimated that fifteen to twenty minutes elapsed between the time she

went outside and the time police were called.

Ms. Buckner testified that when she went to look for the victim, the victim had been found

behind the bar. Her face was swollen, bruised, and cut up, and she was missing a sandal.

The victim was “conscious but not aware” and was asking for Ms. Buckner.

Mr. Parker was outside on the patio around the time the victim was discovered, and he saw

the Defendant come from behind the building. Mr. Parker testified that as the Defendant

passed him, “he patted me on the shoulder and winked at me. I thought it was very odd.” He

turned around, and despite the fact that he could command a wide view of his surroundings,

he did not see the Defendant, concluding, “So he—he was gone pretty fast.” At that point, he

heard his name called from behind the building. The victim was propped against a vehicle,

“visibly beaten” and partially undressed. Her pants were unbuttoned and pulled down

slightly, her shirt was over her shoulder, exposing her bra, and she was bleeding. The victim

was hysterical.

Mr. Bradley Holt, a paramedic, arrived to find the victim unresponsive, with a “pumpknot” on

the right side of her face, other abrasions and lacerations on her face, a bruised torso, the

onset of bruising in her upper extremities, and blood coming from both nostrils. The victim’s

shirt was rolled up, her pants were unbuttoned and unzipped but around her waist, and she

was not wearing shoes. The victim did not respond to speech, touch, or painful stimulation.

She remained unresponsive as she was transported in “emergency status," but toward the

end of the trip she was able to mouth her name and curl into a fetal position in response to a

question asking if she were in pain. Mr. Holt testified that he would have intubated her but

was unable to do so because he did not have the appropriate paralytic medication. He

opined that her injuries were inconsistent with a ground-level fall. Ms. Cecilia Miller, who was

also a paramedic and was driving the ambulance, agreed that the right side of the victim's

face was swollen, scraped, and bloody. The victim was sobbing and could not speak. Ms.

Miller confirmed that the victim's shirt was up and that her pants were unbuttoned and

unzipped but not pulled down. She would have recommended the use of a helicopter to

transport the victim if one had been flying that night. She confirmed that the injuries were

inconsistent with a fall. Officer Dan Wilder escorted the victim and the ambulance to the

hospital "under emergency traffic," with his sirens and lights on. Officer Terry Bryant located

the victim’s shoe behind the restaurant.

*4 Ms. Misty Stamm, a sexual assault nurse examiner, identified a diagram she made of the

victim's injuries. The victim had multiple abrasions on her face, swelling, redness, injuries on

her right knee, left foot, left shoulder, leg, left elbow, coccyx, and left forearm. Ms. Stamm

also found two tears on the victim's labia minora with a small amount of active bleeding. She

testified that she had “only seen that sort of injury consistent with a sexual assault,” “(Ijikely

penetration,” but she acknowledged that the tears "[pjossibly" could have resulted from a

consensual sexual act. She also stated that although the victim had a catheter, she had

never seen a catheter cause labial tears. She testified that the motive behind rape is often

control and domination. The victim told Ms. Stamm that she went to a bar, that a man bought

her a shot, that she did not leave the drink alone, and that going outside to smoke was the

last thing she recalled.

The victim testified that when she woke up in the hospital, she was in a neck brace and her

whole body hurt. She testified in particular that she felt interior and exterior vaginal pain and

that she had trouble urinating for two to three days due to the pain. She did not have any

pain or injuries prior to the night of January 31, 2014. She also testified that she had

previously had a catheter during the birth of her child and that she had suffered no side

effects or burning during urination from the catheter.

Detective Kevin Bush testified that the emergency call came in at 11:36 p.m. and he went to

the hospital to collect evidence. The victim had a blood alcohol level of .21 at 2:04 a.m. He

was unable to speak with the victim, who was intubated, but spoke with her the following

day. He agreed that the victim had stated that she did not recall anything after going outside

to smoke. Detective Bush also agreed that intoxication can affect coordination and that there

was some snow on the ground on the night of the assault, making walking treacherous.

The Defendant was not apprehended on the night of the assault, but Officer Wilder left a

request for the bar employees to contact him if they saw the Defendant again. On February

20, 2014, Mr. Parker recognized the Defendant at the bar. Mr Parker stated that the

Defendant appeared to be "looking at me trying to see if I recognized him, so I acted like I

didn't." He contacted Officer Wider, who took the Defendant into custody. Officer Wider

testified that the Defendant told him that he had taken the victim to the restaurant in order to

have sexual intercourse and that she fell on the way back

Detective Bush interviewed the Defendant on February 20, 2014, after the Defendant was

advised of his rights in English and Spanish. Detective Bush asked the Defendant if he had

been to the bar before, and the Defendant said, “Oh, it's about this girl.” The Defendant

acknowledged buying the victim a drink and denied putting anything into it. He admitted that

he followed her onto the patio, where she intended to smoke. He acknowledged crossing to

the restaurant with her and unzipping her pants, but he denied having intercourse with her.

The Defendant gave a DNA sample, and Detective Bush had the sample compared with the

physical evidence he had collected from the hospital, including a sexual assault kit and the

victim's clothing. No semen was recovered from the evidence. Detective Bush testified that

perspiration, urination, washing, and use of a condom can affect the probability of recovering

DNA evidence. The victim was able to identify the Defendant from a photographic lineup.

The Defendant presented the testimony of Ms. Tracy Sisto, a licensed registered nurse, to

provide an alternate explanation for some of the victim’s injuries. Ms. Sisto, who did not

testify as an expert and had not practiced nursing since 2001, testified that catheterization

can have adverse effects including bladder puncture and irritation. Irritation would cause

burning and pain.

T5 The Defendant, testifying through an interpreter, stated that he bought the victim a drink

at the bar and that she danced with him, hugged him, and kissed him. The victim went

outside to smoke, and he also went outside. The Defendant testified that the victim asked

him to have sex three times. They went outside with the intention of having sex. The victim

jumped over the three-foot high railing surrounding the patio area, and the two went looking

for her car. The Defendant testified that because the victim was confused about the location

of her car, they ended up at the restaurant. He left the victim by some crates for a few

minutes while he walked a few feet away to look at his telephone.

According to the Defendant, the victim walked toward him, tripped, and fell onto the

concrete, hitting her face. He asked if she could walk and she said yes, but when he let her

go, she fell on her behind multiple times. She raised her arms, and he picked her up and put

her on his shoulder. The Defendant stated he walked toward the group behind the bar to see

if they could take her to the hospital and find her friend. Because they appeared angry, he

fled. He testified that he was afraid to remain because he was an undocumented immigrant.

The Defendant denied hitting or pushing the victim or having intercourse with her. He

elaborated that they had intended to have intercourse but that those intentions were derailed

when she fell. The Defendant likewise denied unzipping her pants and speculated that her

pants were lowered when he carried her. The Defendant stated that accepting a drink “could

be" consent to sexual intercourse.

The jury convicted the Defendant of the lesser included offense of aggravated sexual

battery. At sentencing, the State argued for the application of numerous enhancement

factors and asked for the maximum twelve-year sentence in the range based on the brutality

of the attack. The defense noted that the Defendant's prior criminal record consisted only of

minor offenses and argued that many of the enhancement factors were elements of the

crime. The trial court found that the proof at trial would have been sufficient to uphold a

conviction on the charged offense of aggravated rape, noting that the victim’s internal

injuries showed penetration. The trial court further noted that the attack was brutal, that the

victim was barely conscious, and that medical personnel felt her injuries might be lifethreatening. The trial court found that the victim was struck, was rendered nearly

unconscious, and was dumped on the ground and left. Accordingly, the trial court applied as

enhancement that the Defendant had no hesitation about committing a crime in which the

risk to human life was high. See T.C.A. § 40-35-114(10). The trial court further found that

although the Defendant had no prior felonies, he had committed numerous other offenses

and had not been a “good citizen" during his tenure in this country. The trial court found that

the victim’s ability to resist was impaired due to alcohol usage, but the court did not enhance

the sentence based on particular vulnerability due to age or physical or mental disability. See

T.C A. § 40-35-114(4); State v. Buckmeier. 902 S.W.2d 418, 423-24 (Tenn. Crim. App.

1995) (concluding that enhancement factor (4) was properly applied when the victim was

sexually assaulted while intoxicated). It further found that the other three factors argued by

the State, that the victim was treated with cruelty, that she suffered particularly great

personal injury, and that the crime was committed to gratify the Defendant's desire for

pleasure or excitement, were elements of the offense. See T.C.A. § 40-35-114(5), (6), (7).

The trial court, describing the offense as “egregious,” sentenced the Defendant to the

maximum within the range of twelve years in prison.

*6 The Defendant moved for a new trial, arguing that the trial court erred in limiting crossexamination, that there was no evidence of sexual contact, and that the sentence was

improper. The trial judge was unable to preside, and a successor judge, finding that he was

competent to sit as thirteenth juror under State v. Ellis, 453 S. W.3d 889, 907-08 (Tenn.

2015), denied the motion. The Defendant appeals, arguing that the jury instructions

incorrectly stated the mens rea for the crime and that the trial court erred in enhancing the

Defendant's sentence.

ANALYSIS

I. Jury Instructions

The Defendant argues that the jury instructions did not clarify that the jury had to find that

the Defendant’s touching was intentional.2 The State responds that the issue is waived for

failure to raise it in the motion for a new trial.

Under Tennessee Rule of Criminal Procedure 30(b), a party's failure to object to a jury

instruction “does not prejudice the right of a party to assign the basis of the objection as

error in a motion for a new trial.’ However, we agree that the Defendant waived this issue by

failing to raise the issue in the motion for a new trial. See Tenn. R. App. P. 3(e) (“Provided,

however, that in all cases tried by a jury, no issue presented for review shall be predicated

upon error in the admission or exclusion of evidence, jury instructions granted or refused,

misconduct of jurors, parlies or counsel, or other action committed or occurring during the

trial of the case, or other ground upon which a new trial is sought, unless the same was

specifically stated in a motion for a new trial; otherwise such issues will be treated as

waived.").

The State further contends that the Defendant is not entitled to plain error relief For an error

to constitute plain error sufficient to merit relief, the following factors must be present: (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. State v. Bishop, 431 S W.3d

22, 44 (Tenn. 2014) (citing State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.

1994)). Additionally, “ ‘the plain error must be of such a great magnitude that it probably

changed the outcome'" of the proceeding. Id. at 44 (quoting Adkisson, 899 S W.2d at 642).

This court need not consider all the factors if it is clear that the defendant will fail to establish

at least one. State v. Jordan, 325 S. W.3d 1, 58 (Tenn. 2010). We conclude that the

Defendant has not shown that his substantial rights were adversely affected.

A defendant has a right to a correct and complete jury charge. State v. Garrison. 40 S.W.3d

426, 432 (Tenn. 2000). This right is constitutional in nature. State v Phipps, 883 S.W.2d 138,

142 (Tenn. Crim. App. 1994). The trial court must present the propositions of law governing

the case plainly to the jury, so that the jury is able to comprehend the principles involved.

Sfafe v Williamson, 919 S.W.2d 69, 80 (Tenn. Crim. App. 1995). A jury charge should

contain no statement which is inaccurate, inapplicable, or which might tend to confuse the

jury. State v. Hatcher, 310 S.W.3d 788, 812 (Tenn 2010). "Whether jury instructions are

sufficient is a question of law appellate courts review de novo with no presumption of

correctness." State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014). Jury instructions must be

reviewed in their entirety, and no phrase is examined in isolation. State v. Rimmer, 250

S.W.3d 12. 31 (Tenn. 2008). Ajury instruction which misstates an element of an offense so

as to lessen the State's burden of proof amounts to constitutional error. State v. Page, 81

S.W.3d 781, 789 (Tenn. Crim. App. 2002). The failure to properly instruct on the mens rea

required for an offense is a nonstructural constitutional error which merits reversal unless the

State demonstrates the error was harmless beyond a reasonable doubt Clark, 452 S.W.3d

at 295.

*7 To convict the Defendant of aggravated sexual battery as charged, the State had to

demonstrate that the Defendant had unlawful sexual contact with the victim and caused the

victim bodily injury. T.C.A. § 39-13-504(a)(2). Sexual contact “includes the intentional

touching of the victim's ... intimate parts, or the intentional touching of the clothing covering

the immediate area of the victim’s ... intimate parts, if that intentional touching can be

reasonably construed as being for the purpose of sexual arousal or gratification.” T.C.A. §

39-13-501(6).

The jury instruction on aggravated sexual battery in this case consisted of the following:

For you to find the defendant guilty of this offense, the state must have proven beyond a

reasonable doubt the existence of the following essential elements:

(1) That the Defendant had intentional unlawful sexual contact with the alleged victim in

which the Defendant intentionally touched the alleged victim’s intimate parts or the

clothing covering the immediate area of the alleged victim's intimate parts; that the

alleged victim had—or that the alleged victim had intentional unlawful sexual contact

with the Defendant in which the victim intentionally touched the Defendant's or any

other person's intimate parts or the clothing covering the immediate area of the

Defendant's or any other person’s intimate parts; and

(2) That the Defendant caused bodily injury to the alleged victim; and

(3) That the Defendant acted intentionally, knowingly or recklessly.

"Sexual contact” means the intentional touching of the alleged victim's, the defendant's,

or any other person's intimate parts, or the intentional touching of the clothing

covering the immediate area of the alleged victim's, the defendant's, or any other

person's intimate parts, if that intentional touching can be reasonably construed as

being for the purpose of sexual arousal or gratification.

The Defendant relies on State v. Clark for the proposition that these instructions merit

reversal. 452 S.W.3d at 298. In Clark, the jury was instructed that it must find unlawful

sexual contact in which the defendant "intentionally touched" the victim, but, as in this case,

was also instructed that it must find the defendant "acted either intentionally, knowingly or

recklessly.” Id. The Court observed that the act of touching required a finding of an

intentional mens rea, while the remaining elements could be satisfied with the lesser mens

rea of knowledge or recklessness. Id. The Tennessee Supreme Court characterized the

accuracy of this instruction, which is similar to the instruction in the case at bar, as a “close

call” and “encouragefd] future courts" to clarify that recklessness would not be sufficient for

the mens rea element regarding the act of touching. Id. at 298-99. The Court elaborated that

the instructions contained an ambiguity because the jury could apply the mens rea of

“intentional’’ to the touching element, or it could conclude that a mens rea of “recklessness”

would suffice. Id. at 298. The Court noted that the jury "would likely" apply the mens rea of

“intentionally” to the element of touching because of the proximity of the two terms. Id.

However, the Court refused to determine if the instructions were in error because it found

any error would be harmless beyond a reasonable doubt. Id. at 299. The Supreme Court

again pretermitted the issue of whether a similar instruction was in error in State v. Frausto,

instead ordering that "the jury instructions at the new trial shall conform to this Court's

decision in Clark." State v Frausto, 463 S.W.3d 469, 487 (Tenn. 2015).3

*8 In Sfafe v. Troy Love, this court determined that it must address whether a similar jury

instruction was erroneous. No. E2015-02297-CCA-R3-CD, 2017 WL 1077062, at *22

(Tenn. Crim. App. Mar. 21, 2017), perm. app. denied (Tenn. July 20, 2017). This court

concluded that based on evidence that the defendant had claimed that he "didn’t mean to do

it,' the instruction would not have been harmless beyond a reasonable doubt Id. at *21.

Accordingly, this court addressed the accuracy of the instruction, concluded the instruction

was erroneous, and reversed the conviction. Id. at '22. This case was decided

approximately one year after the Defendant's trial.

The Defendant urges us to rely on Troy Love to find that the instruction was erroneous and

that the error was not harmless beyond a reasonable doubt. However, the evidence in this

case, like the evidence in Clark, established that the Defendant's act of touching the victim's

intimate parts was intentional. At trial, the Defendant denied any sort of sexual contact with

the victim. In his interview with Detective Bush, on the other hand, he acknowledged that he

had intentionally unzipped her pants. Thus, there was no evidence from which the jury could

have concluded that he had knowingly or recklessly touched the victim. As in Clark, any

error in instruction would have been harmless beyond a reasonable doubt, and we

accordingly conclude that no substantial right of the Defendant was adversely affected. See

Bishop. 431 S.W.3d at 44.

II. Sentencing

The Defendant next argues that the trial court erred in enhancing his sentence. He argues

that his prior criminal history was 'limited'' and that the trial court incorrectly found that the

crime involved a high risk to human life. The State concedes that the trial court erroneously

relied on the fact that the offense involved a high risk to human life as enhancement.

However, the State argues that the sentence is entitled to a presumption of correctness and

there was no abuse of discretion.

This court reviews challenges to the length of a sentence under an abuse of discretion

standard, "granting a presumption of reasonableness to within-range sentences that reflect a

proper application of the purposes and principles of our Sentencing Act.' State v. Bise, 380

S W.3d 682. 707 (Tenn. 2012). The court will uphold the sentence “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

with the purposes and principles listed by statute.” Id at 709-10. The trial court's weighing of

enhancement and mitigating factors is discretionary. State v. Carter, 264 S.W.3d 335, 345

(Tenn. 2008). The trial court is “to be guided by—but not bound by—any applicable

enhancement or mitigating factors when adjusting the length of a sentence." Bise, 380

S. W.3d at 706. Further, “a trial court's misapplication of an enhancement or mitigating factor

does not invalidate the sentence imposed unless the trial court wholly departed from the

1989 Act, as amended in 2005.’’ Id. A sentence imposed by the trial court that is within the

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

purposes and principles of sentencing, as provided by statute." Id. The appealing party

bears the burden of proving that the sentence was improper. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

In determining “the specific sentence and the appropriate combination of sentencing

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

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

sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;

(5) evidence and information offered by the parties on the applicable mitigating and

enhancement factors; (6) any statistical information provided by the administrative office of

the courts as to sentencing practices for similar offenses in Tennessee; and (7) any

statement the defendant wishes to make in the defendant's own behalf about sentencing.

T.C.A. § 40-35-210(b).

’9 The trial court found that the Defendant's sentence should be enhanced based on the fact

that he "had no hesitation about committing a crime when the risk to human life was high."

T.C.A. § 40-35-114(10). As the State notes, enhancement factor (10), requiring a finding

that the defendant had no hesitation about committing an offense involving a high risk to

human life, “is applicable only when there is proof that the defendant’s conduct in committing

the offense created a high risk to the life of someone other than the victim." State v. Trent,

533 S.W.3d 282, 294 (Tenn. 2017). Accordingly, as the State concedes, the trial court

misapplied this factor. However, the misapplication of enhancement or mitigating factors is

no longer a basis for reversal of a trial court's sentencing decision. Bise, 380 S.W.30 at 706.

In Bise, the trial court misapplied the single enhancement factor supporting the sentence.

Bise. 380 S.W.3d at 708. The sentence was nevertheless upheld because the trial court had

based the decision on its determination of the need for deterrence and the defendant's

potential for rehabilitation. Id. at 709.

In this case, the trial court noted at sentencing that the evidence was sufficient to support the

charged crime of aggravated rape. The court found that the circumstances of the crime of

which the Defendant was convicted were “egregious” in that the victim was struck and then

sexually assaulted while she was in a semi-conscious state. The trial court also noted that

the Defendant had other criminal behavior and that the victim's ability to resist was impaired

by alcohol. The court imposed a within-range sentence after considering the purposes and

principles of sentencing. Accordingly, we conclude the trial court did not abuse its discretion,

and we affirm the sentence.

CONCLUSION

Based on the foregoing analysis, we affirm the judgment of the trial court.

All Citations

Slip Copy, 2018 WL 2084957

j Footnotes

Witnesses referred to the business next to the bar as either a Mexican

restaurant or a Mexican grocery store.

The Defendant highlights the prosecutor’s closing argument that the attack

was in response to the victim’s racist remarks and was for the purpose of

control and domination rather than sexual gratification, based on Ms. Stamm's

testimony. We do not interpret these two sentences in the brief as a challenge

to the sufficiency of the evidence, and we note that other evidence, including

the Defendant's statements to police and interactions with the victim in the bar,

could have supported the jury's conclusion that the Defendant had sexual

contact with the victim and that the contact was for the purpose of sexual

arousal or gratification.

The pattern jury instructions have since been amended to incorporate the

mens rea into each element of the offense. See 7 Tenn. Prac. Pattern Jury

Instr. T.P.I.-Crim. 10.03(b) (listing as an element "that the defendant

intentionally, knowingly, or recklessly caused bodily injury to the alleged

victim").

End of

Document

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No.

IN THE UNITED STATES SUPREME COURT

MAINOR CELIN AVILEZ CANALES - PETITIONER

Vs.

STATE OF TENNESSEE - RESPONDENT

On Petition For Writ Of Certiorari To The Court Of Criminal

Appeals of Tennessee For The Eastern Division, Case No.

E2020-01040-CCA-R3-PC

PETITION FOR WRIT OF CERTIORARI

APPENDIX “C”

Volume 3 of Trial Transcripts, pages 299-309

IN THE CRIMINAL COURT FOR SEVIER COUNTY,

AT SEVIERVILLE, TENNESSEE

STATE OF TENNESSEE,

MAINOR CELIN-AVILES CANALES.

CASE NO.

CR19414

Transcript:

JURY TRIAL

March 11, 2016

(March 10 & 11, 2016)

VOLUME 3 OF

VOLUMES

HONORABLE RICHARD R. VANCE, PRESIDING JUDGE

Certified Copy

APPEARANCES:

FOR THE STATE:

FOR THE DEFENDANT:

RONALD C. NEWCOMB, A.D.A.

District Attorney General

Fourth Judicial District

Sevierville, Tennessee

WILLIAM LEE WHEATLEY, ESQ.

Attorney at Law

Sevierville, Tennessee

FRANK C. SCHALLOCK

MELANIE L. SCHALLOCK

Schallock Reporting Service

423-426-2382

schallockS3@gmail com

TABLE OF CONTENTS

VOLUME 3

DISCUSSION AND RULING ON MEDICAL TESTIMONY OF

DEFENDANT'S WITNESS .......................................

DEFENDANT'S PROOF:

299

(Contd.)

TRACY LYNN SISTO

DIRECT EXAMINATION . . ......................

CROSS-EXAMINATION . ..........................

. 303

307

STATE'S REBUTTAL PROOF:

DAN WILDER

DIRECT EXAMINATION

309

CLOSING ARGUMENTS

313

JURY CHARGE

329

VERDICT

353

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

Table of Contents

~ n ~

STATE v. CANALES

March 11, 2016

~ 299 IN THE CRIMINAL COURT FOR SEVIER COUNTY,

AT SEVIERVILLE, TENNESSEE

STATE OF TENNESSEE,

CASE NO.

CR19414

MAINOR CELIN-AVILES CANALES.

THIS CAUSE came on to be heard and was heard on the

11th day of March, 2016, before the Honorable Richard R. Vance,

Judge,

Sevierville, Tennessee.

holding

the Criminal

Court

***

VOLUME 3

for

Sevier County at

DISCUSSION AND RULING ON MEDICAL TESTIMONY OF

DEFENDANT'S WITNESS:

March 11. 2016

CAT 1 the parties and the Jury being present in the

courtroom, the following proceedings were held.)

THE COURT:

GENERAL NEWCOMB:

MR. WHEATLEY:

THE COURT:

GENERAL NEWCOMB:

FRANK C. SCHALLOCK

Court Reporter

Stole of Tennessee

Waive the call of the Jury?

Yes, Your Honor, waive the call.

Waive the call for the Defendant.

All right.

You may be seated.

Your Honor, before we begin, if Mr.

Discussion and Ruling on Medical Testimony of

Defendant's IVitntss

STATE v. CANALES

March 11,2016

~ 300 ~

Wheatley and I could briefly approach, Your Honor.

THE COURT:

(A Bench conference is held, to-wit:)

Yes, sir.

GENERAL NEWCOMB:

Your Honor, with regard

to the Court's earlier determination regarding

Mr. Wheatley's witness, just need to rule on

that, on the nurse.

because of the lateness of the disclosure on

her.

regarding catheters based on general experience,

as I understand it.

with that, which I appreciate, so — but...

She's going to testify as an expert

Go ahead.

THE COURT:

testimony?

State made an objection

Mr. Wheatley did provide me

What's

the

nature of her

I don't — I just...

MR. WHEATLEY:

Nature of the — the nature

of her testimony would be, Your Honor, that she

would give, of course, her credentials.

THE COURT:

I'll not let her testify as an

expert.

nurse, she may testify about her experience.

She wasn't disclosed.

MR. WHEATLEY:

If she's a

As to her experience with

catheters and the side effects thereof.

THE COURT:

But I will not permit her to

testify as an expert since that was...

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

Discussion and Ruling on Medical Testimony of

Defendant's Witness

STATE v. CANALES

March 11,2016

301 -

And

clearly.

that

should

MR- WHEATLEY:

have

been

disclosed

I understand.

Not as an

expert, but as to her experience with urinary

catheters and the side effects.

THE COURT:

Her own — her own experience.

But she cannot testify as an expert.

GENERAL NEWCOMB:

Well,

so,

just so I

understand, Your Honor, she has an RN that's

valid in Tennessee.

THE COURT:

GENERAL NEWCOMB:

That's fine.

But she hasn't practiced

in 20 years,

using it on herself or using it on other people

or both?

And does the Court mean about

THE COURT:

Well

no, what her experience

i s.

GENERAL NEWCOMB:

THE COURT:

Okay.

But you certainly can cross-

examine

describe her personal experience as a nurse in

—

express an opinion.

her

the

Even

disclosed.

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

use

those

things.

catheters,

she's

But

but

she

can

she

cannot

wasn't

She's not a...

expert,

Discussion and Killing on Medical Testimony of

Defendant's Witness

STATEv. CANALES

March 11,2016

~ 302 -

MR. WHEATLEY:

THE COURT:

MR. WHEATLEY:

I understand.

And —

This is in the nature of

rebuttal witness, Your Honor.

THE COURT:

— she's an ordinary witness.

She's not a rebuttal witness, she's...

Case-in-chief.

GENERAL NEWCOMB:

That's

right.

MR. WHEATLEY:

THE COURT:

I understand.

Case-in-chief.

And

and it can't be a

surprise

because these medical

shown a tear and the catheterizations forever.

MR. WHEATLEY:

THE COURT:

MR. WHEATLEY:

records

have

Yeah.

Can't be any surprise.

It was more than burning

sensation after, is what she's merely speaking

to.

THE COURT:

Whatever she...

The fact that she was

catheterized and

these tears has been known, disclosed forever

and ever and ever.

you.

you'll have to disclose it.

If you want to do it with an expert,

MR. WHEATLEY:

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

How you treat that’s up to

Simple as that.

Thank you.

Discussion and Ruling on Medical Testimony of

Defendant's Witness

STATEv. CANALES

March 11, 2016

303 ~

GENERAL NEWCOMB:

Very well, Your Honor.

(The Bench conference is completed.)

MR. WHEATLEY:

Sisto.

Your Honor, defense would call Tracy

THE COURT:

Okay.

Raise your right hand, be sworn,

please, ma'am.

(The witness is sworn.)

THE COURT:

up here, please.

All right.

MR. WHEATLEY:

Take the witness chair right

May I approach, Your Honor, move the

interpreter's chair?

THE COURT:

MR. WHEATLEY:

Move that other chair.

I'll get that out of your way.

DEFENDANT'S PROOF:

(Contd.)

TRACY LYNN SISTO

was called as a witness, and being duly sworn, was examined and

testified as follows:

DIRECT EXAMINATION BY MR. WHEATLEY:

If you would, please state your name for the record.

Tracy Lynn Sisto.

Miss...

THE COURT:

Ma'am, that skinny mic,

directional, so if you talk

THE WITNESS:

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

it — it's

talk directly at it...

Tracy Lynn Sisto.

WITNESS: Sisto

DX: IVhtntley

STATE v. CANALES

March 11,2016

~ 304 -

MR. WHEATLEY:

THE COURT:

I still can't hear you.

THE WITNESS:

Tracy Lynn Sisto.

THE COURT:

Thank you, Ms. Sisto.

Thank you.

BY MR. WHEATLEY:

And, Ms. Sisto, how are you currently employed?

Currently?

Yes.

I'm as a United States customs broker fpr Sisto

International Brokers and Cabin Rentals.

and cleaning for Cabin Rentals.

MR. WHEATLEY:

(Certain jurors respond.)

THE COURT:

to speak up, ma'am.

Okay.

I do the maintenance

Can everybody hear her okay?

They can't hear you.

You're going to have

JUROR:

THE WITNESS:

Is that better? Should I speak closer?

MR. WHEATLEY:

Yeah.

It doesn't work that well.

Just try to project your voice.

BY THE WITNESS:

Okay.

So I work as a U.S. Customs broker clearing

cargo and — for Sisto International Brokers, and I manage and

clean a cabin for Cabin Rentals, which is self-owned.

Is it true that you're currently a licensed RN?

Yes, sir.

Okay.

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

When did you become an RN?

}yjTNESS: Sisto

DX: Wheatley

STATEv. CANALES

March 11, 2016

~ 305 ~

1982.

Okay.

Until 2001 full time.

And since that time you've not been actively employed

And how long were you employed as an RN?

as an RN?

No, sir.

Okay.

Correct.

And you currently have a license?

Correct.

In the state of Tennessee?

Correct.

Okay.

Yes.

Okay.

It's...

Do you want me to describe it or what it

actually does?

MR. WHEATLEY:

Please.

BY THE WITNESS:

It's a plastic tube, latex, depending on what size and

what the — the use of it is

What is a Foley catheter?

THE WITNESS:

In your experience as a nurse, did you have any

occasion to deal with Foley catheters?

But you've maintained your license status?

if it's pediatric to elderly.

(A cell phone noise can be heard in the courtroom.)

It's a — a long tube with an opening in the end that

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

WITNESS: Sislo

DX: iVUeatley

STATE v. CANALES

March 11,2016

~ 306 -

you insert into the urethra,' into the bladder so that you can

extract urine.

MR. WHEATLEY:

like.

Okay.

You can turn that off if you'd

Sorry.

THE WITNESS:

I thought I did.

MR. WHEATLEY:

Thank you.

THE WITNESS:

Sorry about that.

I apologize.

Okay.

BY MR. WHEATLEY:

Now, are you aware of, through your experiences as a

nurse,

side effects that can accompany the use of a Foley

catheter?

Yes.

13’

Okay. What are those side effects, to your knowledge,

from your experience?

From a — from extreme, you could puncture a bladder,

down to irritation on insertion if you don't — depending on the

diameter of the catheter that you're inserting into somebody, if

they've been catheterized before or not catheterized before.

It's — it's going into a small area that if you use a correct

amount of lubricant and positioning, you won’t have damage. But

at times, if you don't have enough that covers the catheter well

enough, it could irritate the — either — any side of the

ureter going in.

24 •

irritation?

Okay.

FRANK C. SCHALLOCK

Court Reporter

Stole of Tennessee

And what are the possible side effects of that

WITNESS: Sisto

DX: meolley

STATEv. CANALES

March 11,2016

~ 307 Burning, pain, could be an open area.

It's just...

'Cause your ureter, the — the area — the tissue's

kind of like the inside of your mouth,

So if you scrape the

inside of your mouth it would be the same,

You know, you could

damage it enough it could be bleeding,

It could just be an

irritated area.

Okay.

Now, it's true that you and I know each other.

Correct?

Yes, sir.

And your husband works for me as a legal assistant.

Is that correct?

Yes, sir.

MR.

WHEATLEY:

Just

want

disclose

that

everyone's aware.

And I believe I don't have any further

questions for you.

Thank you.

THE WITNESS:

GENERAL NEWCOMB:

THE WITNESS:

Are you?

Thank you.

How are you, ma'am?

I'm well, thank you.

***

Okay.

CROSS-EXAMINATION BY GENERAL NEWCOMB:

You haven't practiced as a nurse for the last 14

years; have you?

Correct.

And though you describe some symptoms.

FRANK C. SCHALLOCK

Court Reporter

Stole of Tennessee

WITNESS: Sisio

CX: Nnrcomb

STATEv. CANALES

March 11, 2016

~ 308 -

Correct?

Yes, sir.

And sometimes they have no symptoms?

Correct.

If you do it right with enough lubrication, correct

Foley catheter, and the carefulness, then there's no symptoms;

are there?

Correct.

'Course, how long has your husband been employed for

Mr. Wheatley?

Well, he's worked with —

Or worked with him?

— he's worked with him for three-and-a-half years.

All right.

And when did you find out you were going

to testify today?

This morning at about 9:00, 9:30.

You don't know anything about this case; do you

ma'am?

No, sir.

GENERAL NEWCOMB:

THE WITNESS:

Thank you.

MR. WHEATLEY:

No further questions, Your Honor,

That's all.

I'd

ask that Ms. Sisto be excused with our thanks.

THE COURT: Without objection, you may go. Thank you.

THE WITNESS:

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

Thank you.

IYTTNESS: Sisto

CX: Newcomb

STATEv. CANALES

March 11,2016

~ 309 ~

MR. WHEATLEY:

(The witness is excused.)

MR. WHEATLEY:

THE COURT:

GENERAL NEWCOMB:

Thank you.

Your Honor, defense rests.

Defense rests.

State calls Dan Wilder, Your Honor.

Your Honor, Mr. Wilder was sworn previously.

Does he remain under oath?

THE COURT:

Still under oath.

STATE'S REBUTTAL PROOF:

PAN WILDER

was called as a witness, and being duly sworn, was examined and

. 13

testified as follows:

DIRECT EXAMINATION BY GENERAL NEWCOMB:

You are the same, albeit a day older, Dan Wilder that

testified in this case.

Is that correct?

Couple of hours.

Did you arrest Mr. Canales?

I did.

When you arrested him, did you mirandize him?

I did.

After you mirandized him, did he say anything to you?

He stated that he had taken the victim next-door to

Yes, sir.

have sex with her and that they had went over there and they had

FRANK C. SCHALLOCK

Court Reporter

State of Tennessee

WITNESS: Wider

DX: N&rcomb

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