IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 16, 2011 Session
STATE OF TENNESSEE v. FRED CHAD CLARK, II
Appeal from the Criminal Court for Davidson County
No. 2007-C-2067 Mark J. Fishburn, Judge
No. M2010-00570-CCA-R3-CD - Filed September 6, 2012
The Defendant, Fred Chad Clark, II, was found guilty by a Davidson County Criminal Court
jury of seven counts of rape of a child and two counts of aggravated sexual battery. See
T.C.A. §§ 39-13-522 (Supp. 2005, 2006) (amended 2007, 2011) (rape of a child), -504
(2006) (aggravated sexual battery). He was sentenced as a Range I offender to seventeen
years for each rape of a child conviction and to ten years for each aggravated sexual battery
conviction, to be served at 100% as a child rapist. The trial court ordered partial consecutive
sentencing, for an effective thirty-four year sentence. On appeal, the Defendant contends that
(1) the evidence is insufficient to support the convictions because the State failed to establish
the corpus delicti; (2) there was a material variance between the proof and the State’s
election of offenses; (3) the trial court erred in admitting surreptitiously recorded
conversations he had with his wife on January 18, 2007; (4) the trial court erred in admitting
evidence of the Defendant’s use of pornography; (5) the trial court erred in allowing a
detective to offer opinion testimony about the Defendant’s truthfulness; (6) the trial court
erred in instructing the jury on the mental state of recklessness for the counts involving rape
of a child; and (7) the trial court erred in sentencing by using an inapplicable enhancement
factor and in imposing consecutive sentences. We affirm the judgments of the trial court in
Counts V, VI, VII, IX, and X. Due to deficiencies in the election of offenses relative to
Counts I, II, III, and IV, we reverse those convictions and remand the case for a new trial for
those counts.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part, Reversed in Part; Case Remanded
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH, J., and
D ONALD P. H ARRIS, S R.J., joined.
Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
At the trial, K.C., the Defendant’s younger daughter, testified that she was six years
old and in the first grade. The record reflects that during the time period alleged in the
indictment, she was four years old. She said that the Defendant “[t]ouched a private part.”
She said that she reported this to her mother and that she told her mother the truth. Using a
drawing of a female child, she circled the genital area as the place her father touched her.
She agreed that both the front and back of the area she circled were private parts. She said
the Defendant touched her skin and thought they were in the bathroom when he touched her.
She said that it took place at her house and that her sister, H.C., was present. She said she
“sort of forgot a bunch of it” because it happened a long time ago. She did not remember if
she asked her father not to touch her.
On cross-examination, K.C. testified that she did not remember talking to a woman
named Charlsi at the Child Advocacy Center, nor did she remember talking to Latoya. She
did not remember telling the women that “nothing happened” with the Defendant. The
victim said she loved the Defendant and used to enjoy spending time with him. She agreed
they had gone to the beach, Disney World, the dog park, and movies together. She agreed
she wrestled with the Defendant but did not recall telling Charlsi that she liked to do so. She
agreed it was a “happy time” when her mother and father lived together.
K.C. acknowledged that she had been to the prosecutor’s office and spoke with Ms.
Reddick about what she would say in court. She said she was not asked the same things
repeatedly about the Defendant. She agreed she grew tired of answering questions about the
Defendant. She agreed that she was told she did a good job and sometimes was hugged when
she spoked about her father during the meetings with the prosecutor. She agreed this made
her feel good.
H.C., the Defendant’s older daughter, testified that she was eight years old and in the
third grade. The record reflects that during the time period alleged in the indictment, she was
five and six years old. She said the Defendant touched her “in [her] private area.” She did
not know if it occurred at their home. When asked to identify on a drawing of a female child
where the Defendant touched, she circled the genital area. She said she did not tell her
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mother at first and thought the Defendant reported it to her mother. She said she told her
mother and other people the truth when they discussed it.
On cross-examination, H.C. did not recall meeting with Charlsi at the Child Advocacy
Center until she was asked about sitting on the floor drawing with markers. She thought she
was asked about the Defendant. She recalled telling Charlsi that nothing happened with the
Defendant and thought that Charlsi questioned her again a few weeks later. She agreed that
she loved and missed the Defendant. She said that her sister, her mother, the Defendant, and
she were happy when they lived together. She agreed that she had fun with the Defendant
at the dog park, the beach, and the movies. She said they took trips to Disney World. She
thought she met with the prosecutor four times. She said she was questioned and sometimes
wished the questioning would stop because she tired of answering. She agreed that she was
told she did a good job and hugged and that this made her feel good.
On redirect examination, H.C. recalled saying at the Child Advocacy Center that it
was hard to talk about. She said that she was sad when the Defendant moved out after she
told her mother and that she did not want him to move.
Melanie Clark testified that she was the victims’ mother and the Defendant’s ex-wife.
She said that H.C.’s birth date was December 3, 2000, and K.C.’s birth date was December
9, 2002. She said that the four of them lived together until January 2007. She said that she
and the Defendant had been together since 1988 and that they had been married for nine
years in January 2007. She said that there had been stress in the marriage when making the
transition from being a couple to having children and that they discussed separating for a
time after K.C.’s birth. She said they worked together to improve the marriage at that point.
She said the twelve months before January 2007 were some of their happiest together. She
said that they were planning to move to another home together and that they had both become
successful professionally.
Ms. Clark testified that on the weekend before Martin Luther King, Jr. Day of 2007,
the Defendant, the Defendant’s mother, H.C., K.C., and she were at home together. She said
that H.C. was sitting in the Defendant’s lap at the computer, that she heard a “commotion,”
and that H.C. came to where she was sitting. She said that when she asked H.C. what
happened, H.C. said she had put the Defendant’s finger on H.C.’s “coo-coo,” the term the
family used for a vagina. She said that she asked why H.C. had done it and that H.C. replied
that she did not know and that she was trying to be funny. She told H.C. it was not a joking
matter, and H.C. went upstairs to her bedroom. She thought it was odd and said she waited
a minute before going upstairs to talk to H.C. She sat on the floor with H.C. and told H.C.
that no one should touch H.C.’s private parts. She said H.C. refused to talk to her and “was
almost like she was physically trying to . . . move away.” She said that she and H.C. were
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very close and that it was odd for H.C. not to talk to her. She said that H.C. was a happy,
talkative child. She said that H.C. seemed uncomfortable and concerned and that this make
her feel uneasy. She said it was obvious something was wrong. She said she decided not to
pursue the matter with H.C. because H.C. was not ready to talk.
Ms. Clark testified that although she was concerned, she did not question the
Defendant. She did not want to offend him and was unsure what was happening because
H.C. did not tell her anything. When she came downstairs from talking to H.C., the
Defendant said she needed to talk to H.C., but she told him she had already taken care of it.
Ms. Clark testified that a day or two later, she talked to K.C. during bath time. She
said she told K.C. never to allow someone to touch her private parts. As K.C. was getting
out of the bathtub, Ms. Clark asked if anyone ever touched K.C. She said K.C. responded
in a strange, “game-like” voice that “Daddy” touched her. She said she was “floored.” She
asked K.C. what she meant, and K.C. pointed downward toward her vagina. She said K.C.
stated, “Sometimes he goes like this . . . [a]nd sometimes he goes crazy.” She said K.C. did
not identify the room where the touching occurred but said it took place while Ms. Clark was
sleeping. She said that she was frightened for the children’s and her safety and that she
dressed them and left the house with them as quickly as possible, telling the Defendant they
were going to the store. She said she did not consider talking to the Defendant about the
matter because she was “afraid of what he would do,” even though there was no history of
domestic violence between them.
Ms. Clark testified that after she was unable to reach her mother, she called Molly
Bernard, a elementary school counselor from her workplace, for advice. She said her
concern for the children was a significant factor in her thinking. She said they went to
Walmart to shop while waiting for a party to end at Ms. Bernard’s house. When they went
to Ms. Bernard’s house, Ms. Bernard’s boyfriend attended the victims and some other
children while Ms. Clark talked to Ms. Bernard. The women decided to talk to the victims,
beginning with K.C. She said they changed the clothes on a doll and told K.C. that no one
should touch her private parts. She said that they asked K.C. if anyone had ever touched her
private parts and that K.C. said the Defendant had. She said that when K.C. was asked why
she did not tell her mother, K.C. said, “because daddy said it’s a secret, not to tell mommy.”
She said there was no further discussion with K.C. She said they sent K.C. to another room
and talked to H.C., who did not want to discuss it and wanted “to remove herself from the
situation.” She said the questions asked of both girls were open-ended, as in whether
someone had touched the girls’ private parts, rather than “Did daddy touch you?”
Ms. Clark testified that she did not feel comfortable returning home after K.C.’s report
that the Defendant touched her while Ms. Clark was sleeping. She said that she contacted
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her parents to request assistance and that she contacted the Defendant to let him know they
would not be home that night. She told him she was stressed about her change of
employment and their plans to sell their home. She said she was afraid of what the
Defendant might do if he found out what the victims told her. Her parents, the victims, and
she stayed in a hotel overnight.
Ms. Clark testified that she and her parents discussed the need to contact the
Department of Children’s Services (DCS). She said that through her employment as an
elementary school librarian, she was trained in the reporting requirements for child sexual
abuse. She said that she knew she had to follow the law by contacting the police or DCS and
that she called the DCS hotline in the middle of the night. She said a DCS employee
contacted her the next day, which was Martin Luther King, Jr. Day. She said that due to her
fear, she changed hotels twice. She took cash from her bank account with the Defendant to
pay for the hotels and to prevent the Defendant from knowing her whereabouts.
Ms. Clark testified that during the time she was away from home with the victims, the
Defendant called her cell phone but that she did not reveal the victims’ allegations. She said
the Defendant threatened to call the police and report that she had taken their children. She
said that she told him to “go ahead” but that she was not concerned whether he did so
because she had reported the circumstances to the authorities.
Ms. Clark testified that she contacted the police rather than wait the full five-day
period to hear from DCS. On Wednesday, Detective David Zoccola from the sex crimes unit
contacted her about the possibility of talking to him and “the possibility of a wire.” She said
she wanted to know what to do, to have protection, and to talk to the Defendant “but . . .
didn’t dare do it on [her] own” without police assistance. Detective Zoccola told her that she
could call the Defendant from the justice center, that the call would be recorded, and that he
would assist her if she needed help talking to the Defendant. She said she wanted to do it to
find out what happened to her daughters and to help them recover.
Ms. Clark testified that she made the controlled telephone call, which took place on
January 18, 2007, and lasted about forty-five minutes. She acknowledged that she was not
truthful with the Defendant in the call. She said she told him that she needed to know what
happened with the victims and that they could be together as a family if he told her the truth.
She said, however, “It wasn’t an option.” She said that initially, the Defendant denied
touching the children and claimed not to know what she was talking about. He offered to
take a polygraph examination. She said the Defendant had deceived her in the past about his
continued use of pornography after she told him it offended her. She agreed that the
Defendant had used adult, not child, pornography. She said the Defendant had reassured her
that he was no longer viewing pornography on the computer but that she would discover
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otherwise on an ongoing basis. She said his denial of touching the victims was consistent
with the existing distrust between them relative to his use of pornography. She said that the
Defendant claimed repeatedly that he would not admit something he did not do but that she
thought this was part of his deception. She said she did not believe him after the things K.C.
told her. She said that as the conversation progressed, the Defendant starting saying that he
might have touched the victims but did not remember. She said he offered to admit it in
order for her to come home but that she said, “Absolutely not . . . I want the truth.” She said
that after the Defendant became equivocal in his denials, he admitted to her that he had been
sexually abused by a teenager when he was young. She said she had never heard this
previously. She acknowledged that the Defendant asked if anyone was listening to the
conversation and that she told him no. She said the Defendant remained concerned that
someone was listening and wanted a face-to-face meeting. She said that she offered to meet
him the following day but that he was adamant they meet that day. She said the Defendant
finally admitted that he touched the children but still wanted to meet to discuss it.
Ms. Clark testified that the telephone call began on a police line but that static was on
the line. She said that the Defendant asked if she was with the police and that she denied it.
She said that the Defendant told her to be right by her cell phone, that he called her back on
her cell phone, and that the police were not able to connect a recording device to her cell
phone between the calls. She said the cell phone call lasted about ten minutes and concerned
the details of their face-to-face meeting.
Ms. Clark testified that she and Detective Zoccola discussed placing a “wire” on her
body but that they decided to place a listening device in her car because it would be safer.
She said there were about four officers involved in placing the recording equipment in her
car and that they told her that for her own safety, she must not get in the Defendant’s car.
She said she was fearful for her safety and that of her children, even when she went to the
police station. She said she agreed to meet with the Defendant because she knew he would
not tell her the truth otherwise. She said she did not believe he had been fully forthcoming
with her.
Ms. Clark testified that she went to the Opry Mills parking lot, where she had agreed
to meet the Defendant. She said the Defendant entered her car. She said that the officers
talked to her beforehand about what she should discuss with the Defendant but that other
than her cell phone, she had no means of communicating with them once the Defendant was
inside her car. She said that she was truthful when she told the Defendant she loved him but
that it was an “odd situation.” She said the Defendant immediately described the details of
his touching H.C. and K.C. She said he admitted touching the victims’ bottoms in the
bathtub at their home. She said he admitted penetrating K.C.’s vagina with his finger. She
said she told the Defendant she would not come home if she could not trust him and that he
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must tell her the truth. She said that they were in the car together about forty-five minutes
and that the Defendant admitted touching the victims between five and seven times and that
he admitted touching K.C. two to four times. She said that the “touching” was described to
her as penetration with his finger. She said the Defendant initially admitted only that the had
touched the girls the previous weekend but that he eventually said he “had these thoughts for
the past six months.” She said the Defendant told her the victims had asked him to stop. She
said that after the conversation ended, the Defendant was arrested. She said she used the
Defendant’s cell phone to call his affluent friends and asked them not to post the Defendant’s
bond. She said she was concerned for the victims’ and her safety.
Ms. Clark testified that she returned to their home and viewed the family’s computer.
She said she found evidence that the Defendant had visited pornographic websites. She said
that she took the victims to Our Kids Center, a rape and sexual abuse center, and two
counselors, and that she complied with the requests of DCS and the investigators. She said
she talked to the victims and tried to reassure them. She said the victims made additional
disclosures to her about other instances of the Defendant digitally penetrating them. She said
that H.C. had shown signs of post-traumatic stress disorder.
On cross-examination, Ms. Clark testified that the incident when H.C. put the
Defendant’s finger on her genital area was on Friday or Saturday of Martin Luther King, Jr.
weekend in 2007. She said she left the house with the victims on Sunday. She denied that
after the incident on Friday or Saturday, the Defendant told her to take H.C. upstairs and
explain that it was inappropriate, although she acknowledged that Detective Zoccola’s report
from his interview of her stated this. She said the Defendant did not ask her to talk to H.C.
until after she had already done so. She said that she did not remember exactly what she and
the detective discussed but that it might have been a “translation issue.”
Ms. Clark acknowledged that H.C. did not report anything at Ms. Bernard’s house but
denied that they questioned K.C. because H.C. would not talk. She stated that she did not
talk to the Defendant about the allegations until Thursday, January 18 because she was afraid
for the victims’ and her safety even though they had been together for about eighteen years
and married for nine years. She said there was no history of domestic violence between
them.
Ms. Clark testified that although Detective Zoccola told her any recordings of her
talking to the Defendant could be used as evidence, he did not say that she had to participate.
She said they did not talk about prosecution of the case and focused instead on her need to
determine what happened. She agreed that the detective instructed her about how she should
conduct herself during the call. She did not recall Detective Zoccola telling her not to make
any promises to the Defendant, although she said he told her to try to refrain from making
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statements such as that she wanted to stay married to the Defendant. She said he told her that
she needed to demand the truth.
Ms. Clark testified that she asked the Defendant if he had been molested by a cousin,
who had been identified to her previously by the Defendant’s family. She said the Defendant
told her the perpetrator was a different cousin. She said that Detective Zoccola was in the
room during her second telephone call with the Defendant and could hear her side of the
conversation. She did not recall Detective Zoccola telling her to ask the Defendant whether
touching the victims had been sexually gratifying.
Molly Bernard testified that she was an elementary school counselor and Ms. Clark’s
coworker. She said she had not been acquainted with Ms. Clark outside the workplace but
knew the victims because they were students at the school where she worked. She said that
Ms. Clark called during Ms. Bernard’s daughter’s birthday party but that she allowed Ms.
Clark to come to her home because Ms. Clark seemed to be in an emergency situation. She
said that Ms. Clark arrived within the hour and that they spoke privately before talking to the
victims. She said Ms. Clark informed her of the allegations and asked if she would speak
privately to the victims.
Ms. Bernard testified that she and Ms. Clark took K.C. into Ms. Bernard’s bedroom
and, following the same procedure Ms. Bernard used with students, discussed private parts.
She said K.C. was able to identify her private parts. She asked if anyone had touched K.C.’s
private parts and K.C. said the Defendant had. She said K.C. placed her hand “down just
toward her private part,” moved it back and forth, and said, “he does this to me, and
sometimes my daddy goes crazy when he touches me like that.” She said that K.C. did not
actually touch herself but put her hand between her legs. She asked whether the Defendant
touched K.C. under her panties and K.C. said yes. She asked why K.C. did not tell anyone
and K.C. said that the Defendant told her not to tell. She said that after K.C. left the room,
Ms. Clark was upset and said that her life had changed. Ms. Bernard said it seemed
important to Ms. Clark that she maintain her composure in front of the victims. She said that
they tried to talk to H.C. but that H.C. did not want to talk. She said H.C. was running
around and playing. She said that she had become closer to Ms. Clark and the victims since
January 2007. Ms. Bernard said that within a couple of months, H.C. told her that the
Defendant touched her private part one time. She said H.C. asked if Ms. Bernard knew why
the Defendant did it.
On cross-examination, Ms. Bernard testified that H.C. was not having fun but was
“distraught and in her own world” when she and Ms. Clark tried to talk to H.C. She said that
at the time, she did not know H.C. well and that they did not want to push H.C. to talk to
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them. She agreed that K.C. reported that sometimes the Defendant “went crazy,” indicating
rough touching. She said that she and Ms. Clark called DCS the next morning.
Kenneth Jordan testified that he was H.C.’s Sunday School teacher in the fall of 2007.
He said that H.C. told him, “My father has sinned.” He said that H.C. told him that the
Defendant touched her “down there” and pointed to her lap. He said he asked H.C. whether
her mother knew and that H.C. said, “Yes, I live with her now.” He said he reported the
incident to the children’s minister.
On cross-examination, Mr. Jordan testified that the incident took place on September
23, 2007. He said that about one week later, he prepared a written memorandum about the
incident at the request of the children’s minister. He said that his wife was in the room when
H.C. made the statement and that another student may have been present. He said he was
told by a clergy member that there were ongoing legal proceedings.
Sue Ross, a nurse practitioner with Our Kids Center and an expert in pediatric forensic
sciences and examination, testified that there was a danger that physical findings from
examination of children who are alleged victims of sexual abuse may be “over-interpreted.”
She said that the absence of a hymen or the presence of anal fissures did not establish
definitively that sexual abuse occurred. She said that one of the purposes of Our Kids
Center, a child sexual abuse specialty clinic, was to ensure that findings were not over-
interpreted and that the center was conservative in this regard. When asked hypothetically
if a report of a burning sensation when urinating was related to a report of a child’s genitals
having been rubbed, she said that they might be related but that there could be other causes
of the burning sensation.
Ms. Ross testified that she performed physical examinations of H.C. and K.C. She
said that a social worker, Phyllis Thompson, would have talked to the victims’ mother and
H.C. beforehand to obtain the relevant history. She said that K.C. was not interviewed
because the center’s policy was not to interview children who were less than five years old.
She said that young children were confused by multiple persons asking questions and that
young children sometimes attempted to please people who questioned them by answering
questions incorrectly.
Ms. Ross testified that she would not have necessarily expected to find injury from
touching on the outside of the genital structure. She said that rubbing the outside of the
genitals typically did not cause injury and that any injury typically was mild. She said that
most children could not differentiate between their vaginal and genital areas. She said that
children tended to characterize any touching of a mucosal surface as being “inside.” With
regard to digital-anal penetration, Ms. Ross testified that injury was unlikely. She said that
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both H.C. and K.C. had normal findings on examination of their anal and genital areas. She
said it was unlikely that she would have seen any injury from digital penetration weeks
earlier.
On cross-examination, Ms. Ross testified that young children sometimes gave “bizarre
responses” to questioning about alleged sexual abuse. On redirect examination, Ms. Ross
testified that other experts did not have the same policy as Our Kids Center about not
interviewing children under five years old. She acknowledged that it was possible that a
child might withdraw a disclosure or “clam up” if interviewed multiple times.
Metro Police Detective Chad Gish testified that he was assigned to the Surveillance
and Technical Support Unit. He set up the transmitter and the recorders in Ms. Clark’s car
and monitored the meeting between Ms. Clark and the Defendant in the Opry Mills parking
lot. He thought Detective Zoccola was also present. He said the equipment recorded the
entire conversation between the Clarks.
Detective Gish testified that he also conducted a forensic examination of computer
equipment for child pornography. He said he did not find any child pornography images but
found thousands of images of adult pornography. He found no evidence that the computer
had been used to access child pornography websites but found evidence that the computer
had been used to access adult pornography websites. He compiled a report that listed a
representative sample of the websites. The report listed the most recent visits as occurring
on January 15, 2007, but he said other visits might have occurred after that date that were not
included in the representative sample he listed. He said two sites were visited a total of
fourteen times on January 15.
On cross-examination, Detective Gish testified that he installed the equipment in Ms.
Clark’s car on January 18, 2007. He did not recall whether the recording contained any last
minute instructions from one of the officers to Ms. Clark. He did not recall hearing any
music on the recording but said he instructed people who were assisting the authorities to
turn off radios and air conditioners in order to minimize background noise.
Metro Police Detective David Zoccola testified that he was assigned to investigate the
allegations of sexual abuse of H.C. and K.C. in January 2007. He said that the police
department received a referral from DCS on January 15 and that he spoke by telephone with
Ms. Clark on January 16 or 17. He said he explained the investigative process and options
to her, including the possibility of making a controlled telephone call from a location where
the conversation could be recorded. He said Ms. Clark was willing to make a controlled call
to the Defendant. He said that had Ms. Clark not been willing to make the call, the
alternative would have been for him to investigate the case and then interview the Defendant.
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He said that Ms. Clark was able to ask intelligent questions and that he wrote additional
questions for her to ask during the call. He said the equipment used for the call allowed for
disguising the telephone number from which the call was made. He said the number was
disguised to appear as Ms. Clark’s cell phone number.
A recording of the call was played. In the call, Ms. Clark questioned the Defendant
about the victims’ allegations. The Defendant repeatedly denied sexually abusing the
victims. Ms. Clark said that in retrospect, she saw signs that the Defendant had been abusing
the victims, such as the victims having vaginal redness and pain. Ms. Clark told the
Defendant that she viewed their computer’s browsing history and knew that he had viewed
pornography after promising her that he would not. The Defendant acknowledged that he
did so. He also admitted that he masturbated while viewing adult pornography on the
internet. Ms. Clark asked the Defendant if a family member molested him. He denied that
he was molested by the person she named. The Defendant asked that they attend family
counseling and that Ms. Clark meet him face-to-face to discuss the matter. Ms. Clark said
that she thought the Defendant molested the victims and that the allegations would come to
light if she took the victims to be examined by a doctor. She said the Defendant’s friends and
family would find out about the allegations. She told the Defendant to tell her the truth,
reassured him that she loved him, and said she wanted the two of them to attend counseling.
The Defendant said he was going to “make something up” in order to satisfy Ms. Clark. He
said that he put his finger in K.C.’s anus but that it was a lie. Ms. Clark said she did not want
him to lie. He admitted that when he was a child, he was sexually abused by a teenager. He
said he did not remember touching the girls and denied thinking about the victims. When
asked if it was possible that he touched the victims, he said, “Anything is possible.” Ms.
Clark said that she wanted to bring the victims home that night and for the four of them to
live together as a family. Ms. Clark denied that anyone was listening to the conversation.
She said they would lose everything if the Defendant did not tell her the truth. The
Defendant admitted that in the last several months, he thought of the incident in which he
was molested. He said that if he did something to the victims, he did not remember it. Ms.
Clark denied that she would call the police if the Defendant admitted anything. The
Defendant admitted he touched the victims, expressed concern that someone was listening
to the call, and said he would give her more information if she would meet him face-to-face.
The Defendant said he would call Ms. Clark later.
After the recording was played, Detective Zoccola testified that they attempted
unsuccessfully to place a recording device on Ms. Clark’s cell phone before the Defendant
called. He said they heard what Ms. Clark said during the second call but did not hear the
Defendant. He said that there was further discussion of the victims’ allegations and that
arrangements were made for the Defendant and Ms. Clark to meet. He said the Defendant,
not Ms. Clark, wanted the meeting. He said that before the meeting, he talked to Ms. Clark
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about how to conduct herself during the meeting and established a code word for her to use
if necessary to ensure her safety. He said that they gave Ms. Clark some guidelines about
what she could say to the Defendant and that Ms. Clark tried to give the Defendant the sense
that their family could be reunited and no report of the abuse made if he were honest.
Detective Zoccola testified that after Ms. Clark’s car was equipped with recording and
listening devices, she went to the Opry Mills parking lot. He said that he and some “tech
guys” went in an unmarked van and that there were at least two other unmarked cars. The
recording was played for the jury. In the recording, the Defendant said that he was ashamed
of what he had done and that he sometimes had “dark or troubled thoughts” about sex. He
said he never had any sexual thoughts about the victims until the previous week when the
victims were in the bathtub. He said that H.C. spread her legs and that he looked at her
vagina. He said he touched the victims but did not insert his finger into their vaginas. He
admitted he put his finger inside K.C.’s anus but said it did not arouse him. He insisted the
sexual abuse only occurred on one occasion and said he realized he did something wrong and
left the room. He said he thought his late night use of pornography prompted his actions.
Ms. Clark told the Defendant she did not believe he told her everything. She said that they
would not be together if he did not tell her the truth. The Defendant insisted he never had
the victims touch him. He said he did not penetrate the victims’ vaginas but admitted he
inserted his finger into their anuses. He denied rubbing the victims’ clitorises. He said that
for the last few months, he thought about the molestation in his past but never had any
impulses until the incident the previous week. After Ms. Clark insisted that the Defendant
must be honest with her, he admitted having thoughts for a while and touching the victims
a total of five to seven times. He said he was ashamed and did not know why he did it. He
said he “never put any of [his] organs in their organs.” He said he touched H.C.’s vagina and
“barely” put his finger inside her when H.C. was in bed. He said he was “just throwing a
number out” and did not know how many times it occurred. He said he never penetrated
K.C.’s vagina, only her anus. He said he touched K.C. two to four times in the past two
months. He said the abuse had been going on since summer. He denied ever threatening the
victims and admitted the victims asked him to stop. He denied that anyone else was involved
or that he viewed child pornography on their computer. The Defendant expressed his desire
to remain with Ms. Clark and work on their relationship. Ms. Clark said that she was not
prepared to return home that night, that they would reunite at the family home the next day,
and that she would attend counseling with the Defendant. Ms. Clark said she would
eventually forgive the Defendant and they would move on. The Defendant denied that
smoking marijuana made him abuse the victims. Ms. Clark answered a telephone call and
said something about the children. Shortly thereafter, she said she had to leave to get the
victims.
-12-
After the recording was played, Detective Zoccola testified that the call Ms. Clark
received during the meeting was from him and that she pretended to be speaking to someone
about the children. He said that he and his supervisor thought they had enough information
and were concerned that the Defendant might become depressed or endanger Ms. Clark if
the conversation continued. He said the Defendant was taken into custody at the scene.
Detective Zoccola testified that he believed Ms. Clark and what the Defendant said
on the tape. He said the Defendant was not interviewed after he was taken to the Criminal
Justice Center. He said the Defendant waived his Miranda rights and talked to Sergeant
Elliott and him for almost two hours. He acknowledged that he told the Defendant that it
would be to the Defendant’s advantage to admit what he did.
Detective Zoccola testified on cross-examination that he prepared supplemental
reports in connection with the investigation. One of these supplements summarized his
interview of Ms. Clark on January 17, 2007. He recalled Ms. Clark telling him that when the
incident in which H.C. put the Defendant’s finger on her “coo coo” occurred on January 12,
the Defendant was surprised and told Ms. Clark to take H.C. upstairs and question her. He
agreed that in a situation such as Ms. Clark talking to the Defendant while assisting the
police, they tried to avoid having the person make promises to the person being investigated.
He said, however, he had little control over what was said. He acknowledged his prior
testimony that he told Ms. Clark she did not have the authority to promise the Defendant
anything.
The recording of Ms. Clark’s part of the second telephone call between her and the
Defendant was played. The call was over thirty minutes long. In it, Ms. Clark said that she
wanted to know the truth and that the Defendant must “give [her] something.” She promised
not to get anyone else involved. She said she asked the victims questions on Saturday. She
said that she would meet him later that day but that if she did so, she wanted more
information about his sexual abuse of the victims. She told him that if he touched the
victims, he would not be able to block it out. She told him to tell her how he touched them.
She reminded him that he admitted earlier that he touched them. She said he was lying. She
said she wanted to get back together with him but she must have the details. She told him
that she knew he had been abused and that he was not a monster. She asked about the time
period of the abuse and whether it occurred before K.C. was born. She said, “You have
touched them inappropriately?” and “In what way?” She asked if the Defendant put his
finger in K.C.’s anus and H.C.’s vagina and anus. She said she was not “setting [him] up”
and reminded him that he called her on her cell phone. She said she did not want people in
her workplace to know what he did. She asked again whether he put his finger in H.C.’s
anus, followed by asking if he did it for sexual gratification and about the time period
involved. She asked him why he did it if it was not arousing. She said “maybe” was not an
-13-
acceptable answer to whether he did it for sexual gratification. She asked whether the girls
touched him. She said that if she took K.C. to the doctor, the doctor would know if he
penetrated K.C. with his finger.
Ms. Clark stated that although the Defendant admitted earlier that he touched the
victims, he was denying it now. She said that H.C. told her that he rubbed H.C.’s vagina with
his finger and inquired whether it was true. She said that the Defendant was “jerking [her]
around” and that he must tell her now about the abuse or she would not meet with him. She
said, “You stuck your finger in her butt?” and “Far enough?” She asked if he told the victims
it was a secret and asked why K.C. would say this if it were not true. She said she deserved
to know what he did to the victims in order to be able to talk to them. She said she did not
want a counselor involved. She said, “You touched it just to see what it felt like.” She said
she knew the truth but wanted to hear him say it. She said that both victims told her that he
put his finger on the victims’ vaginas and that they showed her what he did. Ms. Clark asked
where it occurred and said that K.C. told her the Defendant touched her when Ms. Clark was
asleep. She asked if he was telling the truth or was telling her what he thought she wanted
to say. She said that she thought he was finally telling her the truth and that she knew she
could trust him. She told him she loved him, was not mad at him, and was not going to leave
him. She asked if they could meet outside Opry Mills.
Detective Zoccola testified that he was able to write down more topics for Ms. Clark
to discuss with the Defendant during the first call than the second. He denied that he
prompted her during the second call to ask about sexual gratification but acknowledged that
he discussed the elements of the crime with her before the first call and that he probably
discussed the sexual gratification element with her. He did not recall what he told Ms. Clark
about promising not to divorce the Defendant if he admitted something. He said Ms. Clark
had to promise the Defendant something in order for him to talk, that he told her to say they
could get on with their lives if the Defendant would admit what he did, and that he probably
told her to avoid using the word “police” when saying she would not report any admissions.
On redirect examination, Detective Zoccola testified that he would not have told Ms.
Clark to say that she was divorcing the Defendant, that she hated what he did, or that he
would never see the victims again. He said these statements would not have kept the
conversation going.
At the end of the State’s proof, it elected for Count One the rape incident in which the
Defendant admitted in his recorded statement that he put his finger in H.C.’s vagina in the
summer of 2006 for the first of five to seven times. For Counts Two, Three, and Four, the
State elected the second, third, and fourth rape incidents in which the Defendant admitted in
his recorded statement that he put his finger in H.C.’s vagina five to seven times between
-14-
June 1, 2006, and January 12, 2007. For Count Five, the State elected the rape incident the
Defendant admitted in his statement in which he barely put his finger in H.C.’s vagina when
she was in bed. For Count Six, the State elected the aggravated sexual battery incident the
Defendant admitted in which he touched H.C.’s vagina when she was in the bathtub during
the week before Martin Luther King, Jr. Weekend of 2007. For Count Seven and Eight, the
State elected the first and second, respectively, of two to four rape incidents the Defendant
admitted in which he put his finger in K.C.’s anus two months to six weeks before Martin
Luther King, Jr. weekend of 2007. For Count Nine, the State elected the rape incident in
which the Defendant admitted putting his finger in K.C.’s anus as she lay on her side in the
bathtub the week before Martin Luther King, Jr. weekend of 2007. For Count Ten, the State
elected the aggravated sexual battery incident in which the Defendant admitted in his
recorded statement that he touched K.C.’s genital area on the bone when she was in the
bathtub the week before Martin Luther King, Jr. weekend of 2007. The State rested.
The Defendant testified that he was thirty-seven years old and had a bachelor’s degree.
He said that he was working for a security company until his employment was terminated due
to the charges in this case and that he was presently working as a salesperson for a workplace
uniform company. He said that his divorce became final in May 2009 after Ms. Clark filed
her divorce petition on January 26, 2007, and that the divorce was due to the allegations in
this case. He said that he and the victim’s mother had been a couple since they were in high
school and that his only serious relationship was with her.
The Defendant testified that he did not see the victims between January 14, 2007, and
the Fall of 2009. He said he had an excellent relationship with the victims. He said his life
changed when H.C. was born. He said they took vacations, went on day trips, talked about
school, played sports, and played with their dog together. He said he was an involved father,
sharing duties with Ms. Clark for transporting the children to and from school, preparing
meals, and caring for the children when they were sick and unable to attend school. He said
he was home for dinner every evening unless he was traveling for work. He said that
although he bathed the victims on occasion, it was primarily Ms. Clark’s responsibility. He
said he was more of a “lifeguard” who supervised the girls for their own safety when they
were in the bathtub. He said Ms. Clark read to the victims almost every night. He said that
he and Ms. Clark told the victims never to keep secrets and that the victims were not good
at keeping secrets.
The Defendant testified that before January 14, 2007, their home life was great. He
said that they were in the process of selling their home and moving to a new home, that the
victims were enrolled in a private school, and that they took a trip to Disney World the
previous month. He said that their home was a gathering place on holidays and that their
-15-
extended family members were in their home frequently. He said there was no anger or
tension in the home.
The Defendant testified that on January 12, 2007, his mother babysat the victims while
he and Ms. Clark were away. He said that they came home around 9:45 or 10:00 p.m. and
that he and his mother viewed computer photographs and video from their Disney World
vacation. He said that they were focused on the computer and that H.C. sat in his mother’s
lap and tried to get their attention by turning off the computer. He said H.C. was playful and
happy. He said H.C. pulled his arm from his chair’s armrest and said, “Daddy, I’m going to
try to put your finger on my coo-coo.” He said she was laughing. He said that he had not
been paying attention but that when he heard H.C. make the statement, he asked her what she
was talking about. He said that H.C. stood behind him and looked at Ms. Clark and that H.C.
may have repeated her statement to Ms. Clark. He said that he thought Ms. Clark asked H.C.
why she made the statement and that H.C. said she was trying to be funny. He said he told
Ms. Clark to take H.C. upstairs and explain that the statement was inappropriate. He said his
mother heard H.C.’s statement.
The Defendant testified that after three to five minutes, H.C. and Ms. Clark returned.
He said Ms. Clark told him that H.C. had something to tell him and that H.C. informed him
that she had a loose tooth. He said that the victims went upstairs to go to bed about 10:15
or 10:30 p.m. and that he and his mother went upstairs to see them. He said that Ms. Clark
was reading to H.C. and that K.C. was on the floor playing. He said that later he asked Ms.
Clark whether she spoke with H.C. about what happened earlier and that Ms. Clark told him
she had addressed it. He said Ms. Clark did not seem upset or confront him about H.C.’s
statement. He described the family’s activities the following day and said that Ms. Clark
never said anything about the incident the previous night. He said he played golf the next
day, January 14, and talked to Ms. Clark by telephone about their dinner plans. He said that
when he arrived at home that evening, Ms. Clark seemed distant and he could tell something
was wrong. He asked her after dinner why she was mad, but she said it was no big deal. He
said she seemed more like herself. He said Ms. Clark told him that she and the victims were
going to meet Ms. Clark’s mother at WalMart. He said he offered to accompany them, but
she told him not to come. He said Ms. Clark called him around 8:30 p.m. and said she was
taking the victims to a co-worker’s house to play. When they did not return home after 10:00
p.m., the Defendant called Ms. Clark, who informed him they were not returning home. He
said this was the first time Ms. Clark ever did this. He said that Ms. Clark claimed to be
stressed because of her new job, their upcoming move, and the construction of their new
house and that she wanted to spend the night with her mother. He said that he asked her to
come home to discuss her concerns and that she did not confront him about inappropriate
behavior with the victims.
-16-
The Defendant testified that he was upset the next morning, which was Martin Luther
King, Jr. Day. He called Ms. Clark at 8:00 a.m. and continued calling fifteen to twenty times
until he reached her around 10:30 a.m. He said it was unusual for Ms. Clark to decline his
calls or fail to return them if he left messages. He said Ms. Clark repeated that she was
stressed but did not mention anything about inappropriate behavior. He said he told Ms.
Clark that he was concerned about her and that he would call the police to file a missing
persons report because she had the children with her. Ms. Clark requested more time to
think, and the Defendant did not call the police. He said he called Ms. Clark’s father, who
told him Ms. Clark was stressed and was “going to blow her top.” He said he was not able
to reach Ms. Clark by telephone the rest of the day but thought he talked to her father that
afternoon.
The Defendant testified that he attempted to call Ms. Clark’s mother and sister early
the next morning but did not reach them. He said that his mother came to his house and that
he wanted to go to see his father-in-law, but that his father-in-law told him not to come. He
said he spoke with his father-in-law later, who told him he might need to prepare for a
divorce. He said that when he still was unable to reach Ms. Clark the following day,
Wednesday, he went to his father-in-law’s house but no one answered the door. He said he
and his mother were on their way to find Ms. Clark and the victims that evening, when Ms.
Clark called him. He said that after Ms. Clark told him they could meet on Thursday, he
decided to abandon the search. He said Ms. Clark asked him to stay away from their house
in order for her to retrieve the victim’s belongings. He said that he went to a neighbor’s
home but that Ms. Clark never appeared.
The Defendant testified that he was frantic while Ms. Clark and the victims were
gone. He said he was worried that Ms. Clark was having a mental health crisis and that the
victims might be in danger. He said he talked to his mother, who mentioned the incident in
which H.C. tried to put his hand on her genitals as a possible reason for Ms. Clark’s
departure, but he thought at the time that the incident had been addressed.
The Defendant testified that he called in sick to work on Thursday, January 18, 2007.
He said he attempted to check his bank account online but found that the password had been
changed. He called the bank and learned that a $2000 check was cashed two days earlier.
He suspected that Ms. Clark was going to divorce him. He said that he was unable to reach
Ms. Clark until she called him and that he called and reached her once after that call. He said
his mother was sitting next to him listening to the conversation when he called Ms. Clark on
her cell phone. He and Ms. Clark made arrangements to meet at Opry Mills that evening.
He said that after the call, he told his mother that Ms. Clark wanted him to say he had done
something to the victims and that he was going to do so in order to get her to come home.
He said he was shocked and devastated by the accusation of misconduct with the victims.
-17-
The Defendant testified that he was never sexually abused by a relative named Dennis.
He acknowledged that there was an incident when he was six years old involving a teenage
boy who babysat his sister and him. He said that the boy “flashed” him but that he did not
touch the boy. He said he embellished the story because Ms. Clark was badgering him and
he thought she might come home if he would “give her something.”
The Defendant testified that he never raped or touched the victims inappropriately.
He said that in retrospect, it made no sense that he told Ms. Clark he sexually abused the
victims. He said that he had been through four days of anxiety and uncertainty about his
family and that he thought Ms. Clark would come home if he said he abused the victims. He
said he had about five or six hours of sleep during the four-day period. He said that he
denied the allegations many times but that Ms. Clark would not accept his denials. He said
that as a result of saying he sexually abused the victims, he had lost everything and would
not fabricate a story if he could do it again. He said that Ms. Clark had a strong personality
and that he generally deferred to her. He said Ms. Clark handled the family’s finances, made
decisions about vacations, and initiated their choice of the house they lived in. He said he
did not object to the dynamics of their relationship. He said that he tried to avoid conflict but
that they sometimes argued and went their separate ways, with him going to a friend’s house
or another room. He denied ever assaulting Ms. Clark.
The Defendant testified that his use of pornography was minimal. He said the home
computer was six or seven years old and that the laptop computer did not have any
pornography in its memory. He said he viewed other websites as well as ones with
pornography.
On cross-examination, the Defendant testified that he loved his children and that they
had no reason to fabricate the allegations. He said he did not have any idea that Ms. Clark
would intentionally hurt the victims. He said did not know if Ms. Clark ever manipulated
or lied to him in the past.
The Defendant testified that his account of the events when H.C. tried to put his hand
on her genitals differed from Ms. Clark’s in that he told Ms. Clark to take H.C. to another
room and talk to her, rather than that he ignored H.C., and that Ms. Clark said that H.C. ran
from the room. He regretted not going with them to discuss the incident. He said he was
frantic after Ms. Clark left with the victims but acknowledged he spoke with Ms. Clark and
Ms. Clark’s father during their absence. He did not recall nor did he deny that he looked at
Internet pornography on the evening of January 15, 2007. He acknowledged that he did not
call the police due to safety concerns about the victims and said that it “never entered [his]
mind” to see an attorney about his parental rights. Despite his testimony that he was shocked
when Ms. Clark accused him of wrongdoing, he acknowledged that in the recorded telephone
-18-
calls, he raised the issue by asking whether Ms. Clark thought he had touched the children.
He said that before the conversation with Ms. Clark, his mother asked whether he thought
the incident with H.C.’s trying to put the Defendant’s hand on her genitals might be the
reason for Ms. Clark’s departure.
The Defendant testified that in the recorded telephone call in which only Ms. Clark
can be heard, he denied his previous admission of touching the victims. He said he suspected
that someone was listening to the first call because he heard prolonged static. He
acknowledged that he yelled, cursed, and made demands in the first call. He said that he
thought he was having a private conversation with Ms. Clark when he was in her car at Opry
Mills. He said that Ms. Clark rejected the truth, that he began to lie, and that “it kind of
snowballed from there.” He said that in his interview with Detective Zoccola, he denied
everything he told Ms. Clark, except that he had been sexually abused as a child. He said
that regarding his pretrial statement, he was scared of being jailed and having bad things
happen to him. He acknowledged that he did not tell the police that his statements to Ms.
Clark had been embellished. He agreed that he told both Ms. Clark and the police that he had
been troubled by an incident a few days earlier in which he caught himself looking at H.C.’s
genital area and said that this account was true. He said his mother tried to talk him out of
telling Ms. Clark that he did things he did not do. He said he told his mother, “This is all I
got [sic] to do to get them to come home.” He said his mother stayed with him for an hour
or two after his telephone conversations with Ms. Clark.
The Defendant acknowledged that he testified previously that the recording from the
meeting at Opry Mills did not contain his initial statement to Ms. Clark that after he had time
to think and talk to his mother, he could not admit something that was not true but that he
wanted to talk and work things out. He agreed that he listened to the higher quality copy of
the recording that the district attorney’s office provided to his attorney and that it did not
include what he thought was on it. He said Ms. Clark “hammered” him with questions until
he admitted something. He agreed, however, that despite his admissions of inappropriate
conduct toward the victims, he was consistent in his denials that he made the victims touch
him or that he viewed child pornography. He acknowledged that he lied to Ms. Clark
repeatedly about his use of adult pornography, which he said Ms. Clark viewed as “cheating
on her.” He said the use of adult pornography was not “that big of a deal” to him, although
it was to Ms. Clark.
The Defendant acknowledged that he looked at H.C.’s vagina when she was in the
bathtub and wondered why he looked at it. He did not think he testified previously that he
did not look at H.C.’s vagina.
-19-
On redirect examination, the Defendant testified that before his arrest in this case, he
never had any charges except a speeding ticket. With regard to his frame of mind at the time
he gave his pretrial statement, he said he tried to cooperate because he was afraid that
someone might kill him in jail if anyone learned of the nature of his charges.
Janet Clark, the Defendant’s mother, testified that she babysat the victims on January
12, 2007, while the Defendant and Melanie Clark went out. She said the victims were happy
and normal. She said that the Defendant and Melanie returned around 10:00 p.m. and that
she viewed a video and photographs from the Defendant’s family’s recent vacation. She said
that both victims sat on the Defendant’s lap at times, that K.C. eventually went elsewhere,
that H.C. tried to get their attention, and that H.C. went to the floor and attempted to unplug
the computer. Mrs. Clark said that H.C. tugged on the Defendant’s arm and that H.C. said
that “she tried to put her daddy’s friend [sic] on her coo-coo.” Mrs. Clark claimed that she
asked the Defendant what H.C. said and that the Defendant responded that he did not know.
She said that the Defendant asked Melanie whether she heard what H.C. said, that Melanie
did not respond, and that the Defendant asked again. Mrs. Clark said that Melanie asked
H.C. to repeat it and that H.C. complied. She said he told Melanie to take H.C. upstairs and
tell her “this is not right.” She said that Melanie and H.C. left hand-in-hand and returned five
of six minutes later. She said that H.C. approached the Defendant, stated that she had
something to tell him, and revealed that she had a loose tooth. The Defendant moved the
tooth. She said that Melanie took the victims upstairs for bed, that she and the Defendant
continued viewing the vacation video and photographs for a few minutes, and that she went
upstairs to say good night to the victims. She said that everything appeared normal when she
left.
Mrs. Clark testified that on the morning of January 13, 2007, she babysat the victims
for a couple of hours while the Defendant and Melanie were packing for their move. She
said that nothing appeared to be unusual about the victims and that the previous night’s
incident was never mentioned. She said that on the afternoon of January 14, she talked to
Melanie by telephone. She said she hoped that Melanie would invite her to visit that night
but that Melanie did not do so.
Mrs. Clark testified that on January 16, the Defendant called her at 5:30 a.m. and
reported that Melanie and the victims were gone. She said it was unusual for the Defendant
to call so early. She said the Defendant told her that he did not know why Melanie left. Mrs.
Clark said the Defendant reported that he called Melanie several times but spoke with her
just once. She said she went to the Defendant’s house after the call and that as she
approached, she saw the Defendant sitting in his car and talking on his cell phone. She said
she went into the house and waited a few minutes for the Defendant to come inside. She said
the Defendant reported that Melanie was not taking his calls, that Melanie’s father told the
-20-
Defendant that Melanie “had blown a gasket,” that she was “acting crazy,” and that the
Defendant was concerned for the victims’ safety and wanted to make a police report. She
said, though, that the Defendant did not alert the police because Melanie’s father reassured
the Defendant that the victims were fine. She said the Defendant stated that he would do
anything to get his family to return.
Mrs. Clark testified that she spoke with the Defendant by telephone on January 17,
2007. The Defendant reported that Melanie still would not take his calls and that he wanted
to arrange a face-to-face meeting with Melanie. She said the Defendant came to her house
that evening, that he was upset because Melanie had not taken his calls, that he wanted to go
to Melanie’s family members’ homes to look for Melanie and the victims, and that she
accompanied him. She said that when they were about two miles from her home, the
Defendant received a call from Melanie. Mrs. Clark said that during their conversations that
day or the previous day, she and the Defendant discussed Melanie’s possible reason for
leaving and that the Defendant professed he had no idea why she had done so. She did not
recall whether they discussed the incident on January 12 involving H.C. but acknowledged
they might have discussed it as a possible motivation.
Mrs. Clark testified that on January 18, 2007, she spoke to the Defendant by
telephone. She said the Defendant told her that Melanie withdrew about $2000 from a bank
account and that Mrs. Clark advised him to go to the bank. She said she went to the bank to
meet him but that he never appeared. She said she spoke to him later that day and learned
that Melanie accused him of inappropriately touching the victims. She said that she went to
the Defendant’s home, that he was very upset, and that she was present when he talked to
Melanie by telephone. She said that she sat beside him during the call and that she overheard
some of Melanie’s statements when Melanie talked loudly. She said that Melanie stated, “If
you’ll just admit to one thing, I’ll bring the children home.” She said she told the Defendant
repeatedly not to admit anything that was untrue and that he told her he would do anything
to get his family back. She said the Defendant declined her offer to go to the meeting at Opry
Mills.
Mrs. Clark testified that she had known Melanie Clark since the Defendant began
dating her at age fifteen or sixteen. She said that Melanie “liked to be in control” but that the
Defendant was “happy-go-lucky” and “liked to please people.” She said that from his
childhood, the Defendant never liked confrontation. She identified Melanie as the dominant
person in the marriage and described the Defendant as a loving, involved father.
Mrs. Clark testified that she spent time with the victims weekly or more often. She
said that on numerous occasions, she was with the victims away from their parents and that
-21-
they never confided that the Defendant touched them inappropriately. She never saw the
children act as if they had been “sexualized.”
On cross-examination, Mrs. Clark said that Melanie’s leaving home with the victims
was out of character. She said she was concerned about her grandchildren because Melanie
would not take the Defendant’s calls. She thought the Defendant’s concern that Melanie
might harm the children was legitimate. She said that each time the Defendant was about to
call the police, Melanie called and said the victims were fine.
Mrs. Clark testified that she asked the Defendant if the incident with H.C. on January
12, 2007, “was taken care of” and that the Defendant said Melanie had assured him that she
had done so. Mrs. Clark said she was curious because after the incident, H.C. made a
statement about her tooth. She did not recall the date on which she and the Defendant had
the discussion. She said she was not concerned after the January 12 incident that the
Defendant touched the victims inappropriately because children “say lots of different things.”
She said she went to the bank to meet the Defendant because she thought Melanie might
withdraw all the funds.
Mrs. Clark acknowledged that the Defendant admitted inappropriate conduct. She
claimed, however, not to remember the specifics of the Defendant’s statements. She said the
Defendant made statements agreeing with what Melanie was saying, rather than making
independent admissions. She said the Defendant did not agree to everything Melanie said.
She said the Defendant “would just tell [Melanie] he touched her on the butt.” She said that
she told the Defendant not to say he did anything but that his state of mind was to do
anything to get his children home.
Mrs. Clark testified that the Defendant was a good father. She said that although
children sometimes tested the limits, the victims ultimately did what the Defendant told them
to do. She said it was fair to say that the victims wanted to please the Defendant because
they loved him. She did not know whether the victims would keep a secret if the Defendant
told them to do so.
Eric Rader testified that he worked with the Defendant beginning in 2000 or 2001 and
that they lived four doors apart at one point. He said that he saw the Defendant at work on
January 16, 2007, and that the Defendant confided that Melanie Clark took the victims and
left the Defendant. He said the Defendant cried and showed emotion. He said that the
following day, the Defendant said that Ms. Clark wanted to go to the house without the
Defendant being there and that he offered for the Defendant to stay at his house, although the
Defendant did not do so. He said that initially, the Defendant was confused, but that the
-22-
Defendant became frustrated and angry because he was not able to communicate with Ms.
Clark.
Mr. Rader testified that in January 2007, he had been the Defendant’s neighbor for
about six years and had been in the Clark home many times. He said the Defendant had a
normal, loving father/daughter relationship with the victims. He said that he ate dinner at the
Clarks’ home every couple of weeks, that he dined in restaurants with the Defendant and Ms.
Clark, and that he took the victims to see movies once or twice. He said the Defendant had
been well respected at work. He said that he was shocked when Ms. Clark informed him of
the charges against the Defendant and that the charges were inconsistent with his knowledge
of the Defendant. He said that almost every time he saw the victims after the Defendant’s
arrest, they asked about the Defendant and when the Defendant was returning. He said the
victims did not seem afraid of the Defendant. He said that the Defendant was trustworthy
and that he would believe the Defendant’s sworn testimony.
On cross-examination, Mr. Rader testified that he was friends with Ms. Clark as well
as the Defendant. He thought that Ms. Clark contacted him about the Defendant’s arrest in
order to ensure that he would not post bond for the Defendant. He said Ms. Clark was afraid
for herself and her children that the Defendant would retaliate. He never heard Ms. Clark
disparage the Defendant in front of the victims. He said she said something like “your
daddy’s away right now being a better daddy.”
On redirect examination, Mr. Rader testified that Ms. Clark told him there was
medical and psychological evidence to support the allegations and that it was possible there
was evidence on her computer. He said that the workplace computers were confiscated.
Dr. James Walker testified as an expert in forensic psychology that he evaluated the
Defendant for propensity to be unduly suggestible or overly compliant in interrogation. He
also evaluated the Defendant for personality characteristics that might lead him to give a
false confession or false implicating statement. In addition to conducting a comprehensive
psychological evaluation of the Defendant, he reviewed extensive records that included
recordings of the Defendant’s conversations with Ms. Clark, the State’s discovery materials,
and records from the Our Kids Center’s evaluations of the victims.
Dr. Walker testified that false confessions were “a very common phenomena in the
criminal forensic world.” He said that of 245 defendants exonerated through DNA testing
by the Innocence Project, sixty-one of them gave false confessions or implicating statements.
He said that news reports from the 1930s demonstrate that more than 200 individuals falsely
confessed in the Charles Lindbergh kidnapping case. He also said that of 173 people who
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falsely confessed to crimes, 80% were convicted, as shown by later exculpatory DNA testing
or identification of the correct perpetrator.
Dr. Walker testified that interrogative suggestibility was “the propensity of a person
to admit things that they have not done.” He said that particular susceptibility had been
researched and that the predisposing psychological characteristics included obedience to
authority, anxiety and depression, and low intelligence or cognitive problems. He said that
a person might falsely confess if the person were trying to escape a stressful situation, were
deprived of sleep for several nights, or were subjected to certain interrogation techniques.
The interrogation techniques that might prompt a false confession include promise of reward
or benefit and casting the subject as the victim in the situation.
Dr. Walker testified that the Defendant scored a 21 on the Gudjonsson Suggestibility
Scale, which was one of the highest scores he had ever seen. He said a high score indicated
that the person was susceptible to leading questions in an interrogation situation and that the
person would be much more likely than the average person to make false admissions. He
said that the Defendant’s history demonstrated that the Defendant was the submissive partner
in the marriage and had a dependent personality. He said that as part of his overall
examination, he spoke with the Defendant’s pastoral counselor, who described the Defendant
as eager to please and conflict-avoidant. Dr. Walker said that the Defendant reported it was
important for him to be in a relationship, that he had an intense period of anxiety and
depression when Ms. Clark left him, and that he had been deprived of sleep for many nights
before the conversation with Ms. Clark. Dr. Walker said the Defendant’s personality testing
showed that the Defendant acted impulsively, that he liked to project himself as “having it
all together” even though he did not, that he had low assertiveness in relationships, that he
tolerated stress poorly, and that he had difficulties in situations requiring flexibility. He
agreed that the Defendant was “weak-willed.”
Dr. Walker testified that in his opinion, the Defendant was frantic to reunite with Ms.
Clark. He said that Ms. Clark’s promises to return home if the Defendant would admit the
truth placed the Defendant in a difficult dilemma.
On cross-examination, Dr. Walker agreed that the primary focus of his investigation
was to determine whether the Defendant had personality traits that might lead him to make
a false confession. He said he reviewed some of the evidence before he met with the
Defendant. He said that he did not form an opinion from the evidence he reviewed regarding
the Defendant’s level of suggestibility before meeting with the Defendant. He said he met
with the Defendant before performing the psychological testing. Dr. Walker agreed that the
Defendant had a college degree, that he held responsible positions in his employment, and
that he was of average intelligence and normal functioning.
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Dr. Walker agreed that the Gudjonsson examination was designed to identify criminal
defendants who were most susceptible to making false confessions. He said the test did not
have an error rate because it measured a continuum of behavior, not a specific classification.
He said that research placed the Gudjonsson test at the 95% confidence interval. He said that
the validity of the test would be impacted by the subject’s awareness that his suggestibility
was being tested. He acknowledged that the Defendant knew the purpose of his evaluation.
He said that other tests he administered and his observations of the Defendant corroborated
the accuracy of the Defendant’s Gudjonsson score. He acknowledged that Wikipedia
contained information about the Gudjonsson Susceptibility Scale under the “False
Confessions” subject and that an accurate summary of the test was available online.
Dr. Walker acknowledged that no evidence corroborated the Defendant’s claim of
several sleepless nights before he made the inculpatory statements. He agreed that there was
no evidence of food and water deprivation. He likewise agreed that the Defendant began
making admissions within about twenty-eight minutes of the first controlled telephone call
and that the average interrogation involving a false confession that was studied by Dr.
Gudjonsson was sixteen hours. He said that at the time he stated his opinions in a report, he
was unaware that the Defendant was questioned for two hours and eight minutes by police
officers. He agreed that the police told the Defendant repeatedly that they did not believe
him. He acknowledged that the Defendant never admitted during the police interview that
he touched the victims inappropriately and that the Defendant retracted his previous
admissions.
On redirect examination, Dr. Walker testified that he did not want to change his
opinions after he reviewed the recording of the police interrogation. He noted that Ms. Clark
was not present when the police questioned the Defendant and that the Defendant had no
incentive to make a false statement to them in order to reunite his family.
The jury found the Defendant guilty of five counts of rape of a child regarding H.C.,
two counts of rape of a child regarding K.C., and one count of aggravated sexual battery
regarding each of the two victims. The jury acquitted the Defendant of Count Eight, rape of
a child regarding K.C. The trial court sentenced the Defendant to an effective thirty-four
year sentence. This appeal followed.
I & II
In related issues, the Defendant contends that the evidence is insufficient to support
the convictions because the State failed to establish the corpus delicti and that there was a
material variance between the proof and the State’s election of offenses that denied him a fair
trial. The State counters that there was no variance between the elected offenses and the
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proof and that the evidence was sufficient to support the convictions. Due to an inadequate
election of offenses, the Defendant must receive a new trial for Counts I, II, III, and IV. We
conclude, though, that the evidence was sufficient to support the convictions for Counts V,
VI, VII, IX, and X.
A. Variance
A variance between information in the indictment and the evidence presented at trial
is fatal in Tennessee only if the variance is “material” and “prejudicial” to the defendant.
State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). “Material” means that an essential
element of the charge is lacking, such that the allegations and proof do not correspond
substantially. See id. “Prejudicial” means a substantial right has been affected: either the
defendant was misled at trial and could not prepare a defense or is exposed to a risk of double
jeopardy. Id. As our supreme court stated, a variance is not material or prejudicial when “the
allegations and proof substantially correspond, the variance is not of a character which could
have misled the defendant at trial and is not such as to deprive the accused of his right to be
protected against another prosecution for the same offense.” Id.
Although stated as a “variance” issue, the nature of the Defendant’s complaints are
that the State did not provide an adequate election of offenses, that the trial court failed to
provide a proper election of offenses instruction, and that the evidence is not sufficient to
support the offenses elected. The case before us does not present a variance issue, but we
will address the other issues.
B. State’s Election
When evidence is presented of multiple offenses that would fit the allegations of the
charge, the trial court must require the State to elect the particular offense for which a
conviction is sought and must instruct the jury as to the need for jury unanimity regarding the
finding of the particular offense elected. See, e.g., State v. Brown, 762 S.W.2d 135, 137
(Tenn. 1998); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Shelton, 851
S.W.2d 134, 136 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973).
This election requirement serves several purposes. First, it
ensures that a defendant is able to prepare for and make a
defense for a specific charge. Second, election protects a
defendant against double jeopardy by prohibiting retrial on the
same specific charge. Third, it enables the trial court and the
appellate courts to review the legal sufficiency of the evidence.
The most important reason for the election requirement,
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however, is that it ensures that the jurors deliberate over and
render a verdict on the same offense.
State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000). The requirements of election and a jury
unanimity instruction exist even though the defendant has not requested them. See Burlison,
501 S.W.2d at 804. Failure to follow the procedures is considered to be of constitutional
magnitude and will result in reversal of the conviction absent the error being harmless
beyond a reasonable doubt. See Adams, 24 S.W.3d at 294; see, e.g., Shelton, 851 S.W.2d
at 138.
The State elected, and the trial court instructed the jury, as follows:
Count I: This offense reflects the first of the “5-7” incidents,
admitted by the defendant in his recorded statement, of putting
his finger in [H.C.]’s vagina in the summer of 2006.
Count II: This offense reflects a second incident of the
“5-7” incidences, admitted by the defendant in his recorded
statement, of putting his finger in [H.C.]’s vagina. This incident
would have occurred on a date between 6/1/06 and 1/12/07.
Count III: This offense reflects a third incident of “5-7”
incidences of, admitted by the defendant in his recorded
statement, of putting his finger in [H.C.]’s vagina. This incident
would have occurred on a date between 6/1/06 and 1/12/07.
Count IV: This incident reflects a fourth incident of “5-7”
incidences, admitted by the defendant in his recorded statement,
of putting his finger in [H.C.]’s vagina. This incident would
have occurred on a date between 6/1/06 and 1/12/07.
Count V: This offense reflects the incident described by
the defendant in his recorded statement in which he admits
“barely” putting his finger in [H.C.]’s vagina in her bed at night.
Count VI: This offense reflects the incident described by
the defendant in his recorded statement wherein he admits to
touching [H.C,]’s vagina, but denying penetration, in the bathtub
the week prior to the MLK weekend of 2007.
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Count VII: This offense reflects the first of “2 to 3 to 4”
incidences, admitted by the defendant in his recorded statement,
of putting his finger in [K.C.]’s anus “2 months to 6 weeks”
prior to the MLK Holiday weekend of 2007.
Count VIII: This offense reflects the second incident of “2 to 3
to 4” incidences, admitted by the defendant in his recorded
statement, of putting his finger in [K.C.]’s anus “2 months to 6
weeks” prior to the MLK Holiday weekend of 2007.1
Count IX: This offense reflects the incident described by the
defendant in his recorded statement wherein he admits to putting
his finger in [K.C.]’s anus [in the] bathtub as she lay on her side
in the water, the week prior to the MLK Holiday weekend of
2007.
Count X: This offense reflects the incident described by the
defendant in his recorded statement wherein he admits to
touching [K.C.]’s genital area “on the bone” in the bathtub the
week prior to the MLK Holiday weekend of 2007.
The Defendant admitting touching and penetrating the victims on various occasions,
five to seven times involving H.C., and two to four times involving K.C. The State
developed little proof at the trial to differentiate the occurrences by date, location, or other
identifying features. The Defendant admitted that he touched both victims “on” their vaginas
the week earlier when they were in the bathtub. This corresponds to Counts VI and X. He
admitted penetrating K.C.’s anus while she was in the bathtub a week earlier, which
corresponds with Count IX. He admitted “barely” penetrating H.C.’s vagina with his finger
when she was in her bed at night, which corresponds with Count V.
The remaining counts numerically identify one of multiple instances within the stated
time spans. Count I, the first instance of abuse of H.C., took place in the Summer of 2006.
The Defendant admitted his abuse of H.C. began in the summertime, but there were no
identifying facts such as the location of this first instance of abuse. Count I could have been
duplicitous of the instance described by Count V, in which the Defendant “barely” put his
finger in the victim’s vagina when she was in her bed at night. There was no proof to show
whether there were two separate offenses, or only one. Counts II, III, and IV are the second,
third, and fourth instances of penetration of H.C. sometime between June 1, 2006 and
1
We note that the jury acquitted the Defendant of Count VIII.
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January 12, 2007. There was no evidence of specific, unique facts that would permit the jury
to consider each of these counts individually and reach a unanimous verdict as to each.
Counts VII and VIII alleged the first and second instances, respectively, of digital-anal
penetration of K.C. two months to six weeks before Martin Luther King, Jr. Holiday. The
jury acquitted the Defendant of Count VIII. The Defendant admitted that he penetrated
K.C.’s anus with his finger two, three, or four times beginning six weeks to two months
before his admission to Melanie Clark. By acquitting the Defendant of one of the two non-
specific counts and convicting him of one non-specific count, the jury determined that the
State had proven only one instance of abuse in the six weeks to two month period. Although
the danger of a non-unanimous “patchwork” verdict arises when there is evidence of two or
more offenses, Counts VII and VIII were designated as the “first” and “second” occurrences
within the time period. Considering that no unique facts were presented as to Counts VII and
VIII and that the jury rejected that sufficient evidence existed of a “second” offense (Count
VIII), the jury verdict that the Defendant was guilty of the “first” offense (Count VII) was
unanimous. Cf. Adams, 24 S.W.3d at 294 (stating, in the context of continuing offenses, that
“[w]hen the evidence does not establish that multiple offenses have been committed . . . the
need to make an election never arises.”). Any election error as to Counts VII and VIII was
harmless beyond a reasonable doubt.
C. Jury Instructions
The Defendant argues that “the State failed to properly instruct the jury on the
Election of Offenses so that the verdict of every juror would be united on the one offense”
but does not state specific deficiencies in the instructions given. After the trial court
identified the elected offenses in the manner we have noted, it instructed the jury:
The factual elections made by the State to support each
count of the indictment and the Court’s acceptance of these
elections is no indication that these elections are true or that the
Court has expressed in any manner an opinion as to their validity
or the weight you should give to any evidence introduced in
support of these elections. As the sole trier of the facts in this
case, you and you alone must determine whether the State has
proven beyond a reasonable doubt that the incident specified in
the election for each offense occurred.
For you to find the defendant guilty of any particular
count of the indictment, each of you must base your finding on
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the single and specifically identified incident elected by the
State for that count.
Although this instruction is not a verbatim recitation of Tennessee Pattern
Instruction–Criminal 42.25 regarding election of offenses, its substance was such as to impart
the essential information to the jury. There was no error regarding the instruction.
D. Sufficiency of the Evidence
Because the State failed to make an adequate election for Counts I, II, III, and IV, we
are unable to review the sufficiency of the evidence for them. See, e.g., Shelton, 851 S.W.2d
at 137 (“[A]n appellate court asked to review the legal sufficiency of the evidence can hardly
be confident that it has discharged its function properly, in the absence of an election.”). We
are able, however, to review the evidence for Counts V, VI, VII, IX, and X.
Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997).
Corpus delicti means “the body of the crime.” State v. Shepherd, 862 S.W.2d 557,
564 (Tenn. Crim. App. 1992). The two elements necessary to prove the corpus delicti are
“(1) that a certain result has been produced, for example, a man has died or a building has
been burned, and (2) some person is criminally responsible for the act.” Wooten v. State, 203
Tenn. 473, 481, 314 S.W.2d 1, 5 (1958). Our supreme court has held that:
[W]hile the corpus delicti cannot be established by confessions
alone, yet the confessions may be taken in connection with other
evidence, direct or circumstantial, corroborating them, and, if
from all of the evidence so considered together the corpus delicti
and the guilt of the person with reference thereto is established
beyond a reasonable doubt, it is the duty of the jury to convict.
Ashby v. State, 139 S.W. 872, 875 (1911).
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For rape of a child as charged by Counts V, VII, and IX, the State was required to
show that the Defendant engaged in unlawful sexual penetration with a victim older than
three but younger than thirteen years old. T.C.A. § 39-13-522(a) (Supp. 2005, 2006, &
Supp. 2007) (amended 2011). “‘Sexual penetration means’ 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) (2010).
For aggravated sexual battery as charged by Counts VI and X, the State was required
to prove that the Defendant engaged in unlawful sexual contact of a victim less than thirteen
years old. T.C.A. § 39-13-504(a)(4) (2010). “‘Sexual contact’ includes the intentional
touching of the victim’s . . . intimate parts, if that touching can be reasonably construed as
being for the purpose of sexual arousal or gratification.” Id., § 39-13-501(6).
With regard to Count V, the evidence viewed in the light most favorable to the State
demonstrates that the Defendant admitted to Ms. Clark that he put his finger in H.C.’s vagina
while H.C. was in bed. With regard to Count VII, the Defendant admitted that he penetrated
K.C.’s anus with his finger two, three, or four times in the previous six weeks to two months.
With regard to Count IX, he admitted he inserted his finger in K.C.’s anus when the victims
were in the bathtub about a week earlier. With regard to Counts VI and X, he admitted
touching both victims on their vaginas when they were in the bathtub the week before the
Martin Luther King, Jr. holiday. Subject to corroboration, the Defendant’s statements to Ms.
Clark provide sufficient evidence of each of these offenses.
Only slight proof is required to establish the corpus delicti. State v. Smith, 24 S.W.3d
274, 281 (Tenn. 2000). The evidence that corroborates the Defendant’s inculpatory
statements includes: Both victims testified that the Defendant touched their genital area,
which they identified on an anatomical diagram. K.C. said that the Defendant touched both
the front and back of her genital area and that he touched her skin. H.C. said the Defendant
touched her “in [her] private area.” The abuse was discovered after then-four-year-old H.C.
put the Defendant’s finger on her genital area while in the presence of family members. The
Defendant’s admissions of guilt were corroborated by this other proof.
In so holding, we considered whether each of the offenses must be separately
corroborated and have concluded that such is not required. In State v. Rickman, our supreme
court noted the general ban on evidence of similar crimes because of the danger of the
evidence being misused to show the defendant’s propensity to commit the crime on trial. 876
S.W.2d 824, 828-29 (Tenn. 1994); see Tenn. R. Evid. 404. The Rickman court recognized,
though, that in a trial involving sex crimes occurring over a period of time, proof of one such
offense was necessarily relevant and could be considered as corroborative proof of another,
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provided that the offenses both occurred within the time period alleged in the indictment.
Rickman, 876 S.W.2d at 828-29; see State v. Ellis, 89 S.W.3d 584, 600 (Tenn. Crim. App.
2000). Although the proof in this case does not include corroboration of every element of
each conviction offense as to each victim, the victims’ testimony identifying specific
incidents during the time period alleged by the indictment sufficiently corroborated the
Defendant’s admissions that he touched the victims and penetrated them digitally. The State
presented sufficient proof to support the convictions.
The Defendant must receive a new trial on Counts I, II, III, and IV. The evidence is
sufficient to support the convictions for Counts V, VI, VII, IX, and X.
III
The Defendant contends that the trial court erred in admitting evidence of the
conversations he had with his wife on January 18, 2007, because the confessions recorded
by the police were involuntary and coerced. The State counters that the trial court properly
denied the motion to suppress. We agree with the State.
On review, an appellate court may consider the evidence presented at the suppression
hearing as well as at trial in determining whether the trial court properly denied a pretrial
motion to suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). A trial court’s
factual findings in a motion to suppress hearing are conclusive on appeal unless the evidence
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones,
802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence
are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The
prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The
application of the law to the facts as determined by the trial court is a question of law, which
is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
The Fifth Amendment of the United States Constitution provides that “[n]o person .
. . shall be compelled . . . to be a witness against himself” in a criminal case. U.S. Const.
Amend. V. Similarly, article I, section 9 of the Tennessee constitution provides that an
accused “shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9.
“The test of voluntariness for confessions under article I, § 9 of the Tennessee Constitution
is broader and more protective of individual rights than the test of voluntariness under the
Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (citing State v.
Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994)); see State v. Northern, 262 S.W.3d 741
(Tenn. 2008). For a confession to be considered voluntary, it must not be the product of
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“‘any sort of threats or violence, . . . any direct or implied promises, however slight, nor by
the exertion of any improper influence.’” State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim.
App. 2000) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). The essential
question therefore is “‘whether the behavior of the State’s law enforcement officials was
such as to overbear [the defendant’s] will to resist and bring about confessions not freely
self-determined . . . .’” State v. Kelly, 603 S.W.2d 726, 728 (1980) (quoting Rogers v.
Richmond, 365 U.S. 534, 544 (1961)). The Supreme Court has held that in order for a
confession to be involuntary, it must be the product of coercive state action. See, e.g.,
Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).
The trial court found that Ms. Clark was a state actor because she and the police were
complicit in obtaining the Defendant’s admissions. The court found, however, that the
Defendant’s free will was not overborne by Ms. Clark’s actions. The court also determined
that although Ms. Clark made misrepresentations about their future together and implied that
she would not seek prosecution, she had no authority to forego prosecution or allow leniency.
The court found, as well, that she did not misrepresent the evidence and did not threaten the
Defendant because her statements that she would go to the police and obtain a medical
examination of the victims unless the Defendant told the truth were statements of fact. The
court noted that although the Defendant erroneously placed his trust in Ms. Clark, the
evidence did not support a conclusion that the Defendant’s decision to confess was prompted
by his misplaced trust, rather than by “the realities of the situation.” The court noted, as well,
that the Defendant told Ms. Clark to “go ahead” with her plans to have the victims examined
and to call the police because he had done nothing wrong. The court also noted the
Defendant’s offer to undergo a polygraph examination. The court found it significant that
the Defendant’s first affirmative, unqualified admission occurred in the second statement
without prompting from Ms. Clark, after he had time to reflect following the first
conversation.
In State v. Branham, 855 S.W.2d 563 (Tenn. 1993), our supreme court considered the
admissibility of a defendant’s surreptitiously recorded confession to a family member who
visited the defendant in jail. The court said that the question of coercion must be considered
from a defendant’s perspective. Id. at 568; cf. State v. Smith, 933 S.W.3d 450, 455 (Tenn.
1996) (stating that the defendant’s subjective perception alone is not sufficient to justify the
conclusion that confession was not voluntary and that coercive police activity must also be
shown). A defendant’s statement to someone who is secretly assisting the State does not
implicate the “police-dominated atmosphere” and coercion concerns that were addressed in
Miranda v. Arizona. Branham, 855 S.W.2d at 568. Thus, a Defendant’s federal and state
constitutional rights to be free from compelled self-incrimination are not violated simply
because a person acting at the State’s behest elicits incriminating information from a
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Defendant. Id. at 569. Coercion of a suspect is distinguished from strategic deception.
Branham, 855 S.W.2d at 568 (citing Perkins, 496 U.S. 292, 296-97 (1990)).
Regarding the present case, the evidence does not preponderate against the trial
court’s determinations. The Defendant was unaware that Ms. Clark was acting in
conjunction with Detective Zoccola. Although Ms. Clark was deceptive with the Defendant,
her misrepresentations were about their personal life, not whether the State would prosecute
him if he did not confess or afford him leniency if he confessed. Even if she had made such
representations, she had no authority as a private citizen to do so. Proof of Ms. Clark’s
deception of her husband does not equate to proof that he was coerced by the police. See
Perkins, 496 U.S. at 296-97. Likewise, the evidence does not preponderate against the trial
court’s finding that the Defendant’s free will was not overborne by Ms. Clark’s actions. The
Defendant vehemently and repeatedly denied any wrongdoing before eventually admitting
his misconduct. To support his initial protestations of innocence, he offered to take a
polygraph examination and encouraged Ms. Clark to have the victims examined by a doctor.
After the Defendant’s telephone conversations with Ms. Clark, several hours passed in which
he had time to consult with his mother and consider whether to admit additional instances of
misconduct and to provide factual details about the abuse.
We note that this court has rejected claims similar to the Defendant’s. See State v.
Ted Ormand Pate, No. M2009-02321-CCA-R3-CD, Davidson County (Tenn. Crim. App.
Nov. 22, 2011) (declining to find plain error from the defendant’s claim that his admissions
were coerced by his daughter, who was also the victim’s mother, who made a “controlled
call” under the direction of a police detective), perm. app. denied (Tenn. Apr. 11, 2012);
State v. Robert Bacon, No. 03C01-9608-CR-00308, Sullivan County (Tenn. Crim. App. Jan.
8, 1998) (holding that the defendant’s state and federal constitutional rights were not violated
by surreptitious recording of telephone conversations between the defendant and the victim
when the calls were made by the victim under the State’s direction); cf. State v. Smith, 933
S.W.2d 450, 454-56 (Tenn. 1996) (rejecting the defendant’s claim that his admissions were
coerced by a social worker’s statements that the district attorney general might not prosecute
the defendant if he were truthful and received counseling and noting that the social worker’s
statements could not reasonably be interpreted as a promise that the Defendant would not be
prosecuted). The Defendant is not entitled to relief on the basis of the Fifth Amendment or
article 1, section 9.
The question which remains is whether due process was offended by the interrogation
method. The Fourteenth Amendment of the United States Constitution and article I, section
8 of the Tennessee Constitution provide that the State shall not deprive any person life,
liberty, or property except by due process of law. U.S. Const. Amend. XIV; Tenn. Const. art.
1, § 8. “The true test . . . is whether ‘fundamental fairness’ and ‘substantial justice’ . . . are
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absent or present. Van Zandt v. State, 402 S.W.2d 130, 135 (Tenn. 1966); see State v. Smith,
933 S.W.2d 450, 457 (Tenn. 1996). The court in Branham did not rule out the possibility that
some interrogation practices might be so unfair as to offend due process. Branham, 855
S.W.2d at 569.
To the extent that the Defendant contends that the method employed to elicit his
admissions was so inherently unfair that it violates due process, we note the lack of proof that
Detective Zoccola directed Ms. Clark to promise the Defendant he would not be prosecuted
or that he would receive leniency from the State, nor did she, as a private citizen, have the
power to do so. We distinguish this case from State v. Phillips, 30 S.W.3d 372 (Tenn. Crim.
App. 2000), in which the defendant gave an involuntary and coerced statement to an
investigator and another employee of the Department of Children’s Services following the
investigator’s false statements about the evidence, repeated denials by the Defendant,
statements that the police would be involved unless the Defendant confessed, and assurances
that the Defendant and the victim would receive treatment only if the Defendant confessed.
The Defendant is not entitled to relief.
IV
The Defendant contends that the trial court erred in admitting evidence of the
Defendant’s use of pornography depicting adults. The State contends that the trial court did
not err in admitting the evidence. We conclude that the trial court erred in admitting the
evidence during the State’s case-in-chief but that the error was harmless.
In the recorded conversations, the Defendant said, in the context of denying that he
sexually abused the victims, “[T]he only problem I have had is occasionally looking at some
pornography. It never included any child pornography.” He admitted that although Ms.
Clark asked him to refrain from viewing pornography, he continued to do so without her
knowledge, and that he masturbated while viewing pornography.
The Defendant filed a pretrial motion in limine seeking exclusion of the evidence on
the bases that it was not relevant, that it was unfairly prejudicial, and that it would confuse
the issues before the jury. The record reflects that the Defendant’s case went to trial and that
a mistrial was declared, but the record does not contain a transcript of the trial or any hearing
on the motion in limine regarding pornography. This appeal is from the Defendant’s
convictions at the second trial. With regard to what transpired before the first trial, defense
counsel stated at the hearing on the motion for a new trial after the second trial, “The Court
ruled before the first trial that some of [the evidence of pornography use] was excluded, but
then some of it naturally came in sort of as the [res gestae] of the discussion between the
parties.” Before the second trial, the defense filed a notice that it intended to introduce
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expert testimony regarding whether the Defendant had a highly compliant personality and
was unusually susceptible to making a false confession.
The court conducted a hearing to determine if the defense expert’s testimony was
admissible. Dr. Walker’s testimony at the hearing was consistent with his trial testimony,
which we have recounted previously. The court ruled that Dr. Walker’s testimony was
admissible, stating that the expert could testify about “the environments that exist in an
interrogative atmosphere that can lead to false confessions, so that the jury can determine
whether or not any of those existed in this case . . . [n]ot specifically commenting on what
[Ms. Clark] did that may have caused it, I think that’s up to the jury to decide.” With respect
to the evidence of the Defendant’s pornography use, the court noted:
As a corollary to [the question of admissibility of the
expert testimony], on the issue of pornography, I think in light
of my ruling on this that it becomes relevant because one of the
bases that the doctor forms his opinion on is that Ms. Clark was
the dominant party in this and that he kind of gives in to
whatever her opinions are on things in order to avoid conflict .
. . between him and her, he basically succumbs to her desires,
demands, however you want to interpret it; he knows very well
her position on pornography throughout their marriage, he not
only ignored her desires on that, once caught, took subversive
action to continue to do so, and . . . I will give a limiting
instruction of how they can use it, certainly can’t use it to
determine whether - even though it’s not technically 404(B), it’s
not second technically prior bad acts, it’s totally legal, I will still
give a limiting instruction that they cannot consider it propensity
evidence and the standard language. But I think it goes to the
issue as to whether or not he was a submissive partner in this
relationship because it tends to show that he was doing things
contrary to her very strong beliefs on the topic, this wasn’t just,
you know, “I want you to take out the trash on Monday before
they pick it up on Tuesday, and I don’t want to have to tell you
about that anymore,” this was something that she felt extremely
strong about in her convictions that it was not to be tolerated and
he chose to, even though that was a very, I guess, almost like in
[the] Catholic church, you have venial and cardinal sins, I mean,
this was high on her ranking of things you do not do in this
marriage, and he not only chose to violate that principle of hers,
he in some ways he subterfuge [sic] in order to carry it out, and
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so I think it’s relevant to that issue for the jury to fully evaluate
the relationship of the parties in this particular marriage so I will
allow that testimony for that purpose.
After Ms. Clark’s testimony, the court provided a limiting instruction:
Members of the jury, there has been testimony that Mr.
Clark viewed legal adult pornography during the course of his
marriage to Mrs. Clark, you’re instructed that you cannot
consider this evidence to prove that Mr. Clark had a disposition
or predisposition to commit the offenses for which he is on trial.
This evidence and the circumstances surrounding its
occurrence may be considered by you only for the limited
purpose of providing you a more complete picture of the parties’
relationship and evaluating their credibility.
The court gave a similar instruction after Detective Gish testified about the discovery of
pornographic images on the Defendant’s computer.
Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence
is not excluded as a matter of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000)
(citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The term “undue
prejudice” has been defined as “‘[a]n undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.’” State v. Banks, 564 S.W.2d
947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm’n Notes).
When relevant evidence reflects on the defendant’s character, however, the trial court
must apply the more rigorous standard of Tennessee Rule of Evidence 404(b), rather than
Rule 403. State v. James, 81 S.W.2d 751, 758 (Tenn. 2002); State v. Dubose, 953 S.W.2d
649, 655 (Tenn. 1997). Rule 404(b) prohibits evidence of other crimes, wrongs, or acts
offered to show a character trait in order to prove that a defendant acted in conformity with
that character trait. Tenn. R. Evid. 404(b). However, evidence of other crimes, wrongs, or
acts may be admissible for other purposes, such as establishing identity, motive, common
scheme or plan, intent, or absence of mistake. Id.; State v. McCary, 119 S.W.3d 226, 243
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(Tenn. Crim. App. 2003). The rule lists four requirements that must be satisfied before a
court determines admissibility:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issues, the ruling, and the
reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b)(1)-(4).
The Defendant challenges the admission of any evidence of his pornography use. The
record does not contain the trial court’s ruling on the limits of this evidence at the first trial.
We note that the Defendant’s notice of intent to call Dr. Walker as an expert witness was
filed after the first trial. In the context of the second trial, the court’s ruling on the
pornography use evidence was intertwined with the question of admissibility of Dr. Walker’s
testimony. Evidence of the Defendant’s pornography use was offered as part of the State’s
case-in-chief at the second trial. Evidence of a defendant’s other acts may be subject to
exclusion under Rule 404(b) until the defendant “opens the door” to the evidence by
introducing other evidence or through cross-examination of a State’s witness. See Neil P.
Cohen et al., Tennessee Law of Evidence § 4.04[8][j] (6th ed. 2010). In this case, though,
the State offered evidence of Defendant’s pornography use before Dr. Walker testified as a
defense witness.
We conclude that the trial court erred in admitting evidence of the Defendant’s use
of pornography during the State’s case-in-chief. Evidence of the Defendant’s use of
pornography had the potential for misuse by the jury as propensity evidence. The evidence
qualified as “other acts” evidence under Rule 404(b). The trial court complied with the
requirements for determining admissibility under the rule. See Tenn. R. Evid. 404(b)(1).
The recordings of the conversations, including the Defendant’s admissions of pornography
use, provided clear and convincing proof of pornography use. See id. at (b)(3). We note,
though, that the evidence was not material, and its probative value was outweighed by the
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danger of unfair prejudice. See Tenn. R. Evid. 404(b)(2), (4); see also State v. Rodriguez,
254 S.W.3d 361 (Tenn. 2008) (holding that the trial court erred in admitting evidence in trial
for rape of a child and aggravated sexual battery that the defendant possessed child
pornography).
The question becomes whether the error more probably than not affected the verdict.
See T.R.A.P. 36(b). In that regard, we consider the trial court’s ruling that the evidence was
relevant and admissible in light of the defense proof that the Defendant was susceptible to
making false confessions while under the domination of Ms. Clark. As we have noted, the
court found that the evidence was relevant to the material issue of whether the Defendant was
submissive and coerced to confess falsely to the crimes by his wife. The court found that the
danger of unfair prejudice did not outweigh the probative value of the evidence. Once the
defense offered evidence of the Defendant’s submissiveness to Ms. Clark and his
predisposition to confess falsely, evidence of his secret defiance of Ms. Clark’s strong wishes
that he not use pornography was relevant and probative. The evidence addressed whether
the Defendant was the submissive partner in their marriage whose will was overborne by the
dominant partner such that he falsely confessed to sexual abuse of the victims.
We distinguish this case from Rodriguez. In Rodriguez, the supreme court held that
the trial court erred in admitting evidence that the defendant possessed child pornography in
a trial for rape of a child and aggravated sexual battery charges. In that case, however, the
prosecutor offered the evidence that the defendant possessed child pornography on the basis
that it “goes to motive and intent to show that he has a thing for children.” In other words,
the evidence was offered to show the defendant’s propensity to commit the crimes. The
court held that the erroneous admission of the evidence more probably than not affected the
verdict. Rodriguez, 254 S.W.3d at 374-78.
We view the facts of the present case as less compelling than those in Rodriguez. The
Defendant in this case possessed legal adult pornography, not illegal child pornography. The
evidence was not offered to show the Defendant’s propensity to commit child sexual abuse,
and the jury was specifically admonished that the evidence should not be used for that
purpose. The evidence was relevant to the defense theory that the Defendant was not guilty
of the crimes and that he confessed falsely when pressured to do so by a domineering spouse.
The focus of the evidence was on the Defendant’s deception of Ms. Clark as it reflected on
his role in the marital relationship. The evidence was not offered to reflect unfavorably on
his character because he viewed pornography or to show a disposition toward sexually
abusing children. Although the trial court erred in admitting the evidence in the State’s case-
in-chief, the evidence of the Defendant’s deception of Ms. Clark became relevant and
material during the defense proof and, at that point, the danger of unfair prejudice did not
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outweigh its probative value. The trial court’s error in admitting the evidence during the
State’s case-in-chief was harmless. The Defendant is not entitled to relief.
V
The Defendant contends that the trial court erred in allowing Detective Zoccola’s
testimony about his opinion of the Defendant’s truthfulness. The State counters that the trial
court gave an appropriate instruction that the jury could not consider Detective Zoccola’s
opinion in deciding whether the Defendant committed the crimes alleged. The State notes
the absence of a contemporaneous objection and contends that further relief is not warranted.
We conclude that the Defendant has not shown harmful error.
Detective Zoccola testified about questioning the Defendant. His direct examination
reflects the following:
Q. During that two-hour discussion, did Mr. Clark make any
admissions about having touched his children?
A. He did not.
Q. And did he in fact retract any admissions that he had
made during the call and the conversation [in the car]?
A. He did.
Q. Did you confront Mr. Clark about the statements that he
made?
A. Yes.
Q. Did you indicate to him that you didn’t believe him?
A. Several times.
Q. Did you outline for him the potential consequences for
his activity?
A. We discussed that he was facing some very serious
charges that carried some very long jail time and that while it
didn’t get any more serious than that, we discussed what, in my
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opinion, would be his best option and we certainly had the
benefit of the phone call and the body wire and heard him talk
to his wife about these things, I certainly felt like that was
complete honesty on his part and we discussed, you know, what
could happen or what might happen, just trying to get him to
talk.
Q. Mr. Zoccola, you said you outlined the potential
consequences that were facing Mr. Clark and did you provide
him some advice regarding what he might do in this situation?
A. We were speaking in general terms, I’m not a district
attorney, I couldn’t tell him exactly what he was looking at, but
certainly that it was very serious and stressed several times that,
in my opinion, I thought that if he were honest and basically be
[sic] truthful about what happened between himself and the girls
that the district attorney’s office and the DA handling this case
might cut him some slack or might–might be in his best interest
to be completely honest and own up to it.
Q. You told him basically it would help him if he admitted
to what he had done?
A. Yes.
Q. You believed Ms. Clark and you believe what he said on
the tape?
A. Absolutely.
Q. And you told him that you wanted him to admit?
A. Yes.
Following this testimony, court adjourned for the day. The next day, defense counsel
objected to the question and answer regarding whether Detective Zoccola believed the
Defendant’s statements on the tape. The court said it would provide a curative instruction.
Following Detective Zoccola’s cross-examination, the court instructed the jury:
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Members of the jury, yesterday afternoon, you heard an opinion
given by Detective Zoccola regarding his belief as to the truth
and veracity of the confession that he heard during the course of
these recorded statements; I am instructing you and making it
clear that you cannot consider his opinion as to the truth and
veracity of these statements for any reason whatsoever in terms
of whether or not they are true. You are the sole judges of the
facts in this case and the credibility of these witnesses, you and
you alone will make the determination as to whether or not those
statements, those recordings are true. You may consider what
he testified to in that regard as to give you a better
understanding of his motivation and the actions that he
continued to take during the investigation of this case.
As a preliminary matter, we disagree with the State’s summary argument that the
Defendant did not make a contemporaneous objection and is not entitled to further relief.
Detective Zoccola’s testimony in question was at the end of his direct examination. Court
adjourned for the day, and defense counsel objected the following morning before the court
received further proof. To the extent that the State’s argument may be construed as a claim
that the Defendant waived any objection to the admission of the evidence, we conclude that
the objection was not waived.
The Defendant argues that the evidence was inadmissible because it was not relevant
and because Detective Zoccola had no personal knowledge whether the Defendant was
telling the truth. See Tenn. R. Evid. 401 (relevance), 602 (lack of personal knowledge). We
agree. We must consider, then, whether the error more probably than not affected the
verdict. See T.R.A.P. 36(b). Upon review, we conclude that the error was harmless. The
improper questioning was brief and was not emphasized. The trial court gave a proper
curative instruction. The jury is presumed to have followed the trial court’s instructions.
See, e.g., State v. Sims, 45 S.W.3d 1, 22 (Tenn. 2001) (appendix consisting of excerpts of
Court of Criminal Appeals’ opinion); State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998).
The Defendant is not entitled to relief.
V
The Defendant contends that the trial court erred in instructing the jury on the mental
state of recklessness for the counts involving rape of a child. The State contends that the trial
court properly instructed the jury. We conclude that the trial court properly instructed the
jury.
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The record reflects that with regard to the elements of child rape, the trial court
instructed the jury that the State was required to prove that the Defendant “acted either
intentionally, knowingly or recklessly.” “[The] defendant has a constitutional right to a
correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990).
The trial court must describe each element of an offense and define the element in connection
with that offense. See State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). A charge is
prejudicial error if it fails to “submit the legal issues or if it misleads the jury as to the
applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
This court has reached inconsistent results when faced with the question of whether
the mens rea element for rape of a child is satisfied by a showing of recklessness, and our
supreme court has yet to address the issue directly. See State v. Johnny Lynn, No. M2008-
00532-CCA-R3-CD, Perry County (Tenn. Crim. App. June 25, 2009) (noting the split of
authority and the lack of a supreme court ruling), perm. app. denied (Tenn. Sept. 1, 2009);
State v. Joel E. Blanton, No. M2007-01384-CCA-R3-CD, White County (Tenn. Crim. App.
Mar. 4, 2009), perm. app. denied (Tenn. Aug. 24, 2009) (noting the split of authority); cf.
State v. Maddin, 192 S.W.3d 558, 562 (Tenn. Crim. App. 2005) (denying plain error relief
from aggravated rape convictions because there were no facts to support a finding of a
reckless mens rea); Wesley Earl Brown v. State, No. M2008-01923-CCA-R3-PC, Davidson
County, slip op. at 15-18 (Tenn. Crim. App. June 22, 2010) (stating that rape of a child may
be committed intentionally, knowingly, or recklessly), perm. app. denied (Tenn. Nov. 10,
2010); State v. Thomas D. Stricklin, No. M2005-02911-CCA-R3-CD, Putnam County, slip
op. at 17-21 (Tenn. Crim. App. Apr. 5, 2007) (stating that rape of a child may be committed
intentionally, knowingly, or recklessly), perm. app. denied (Tenn. Aug. 20, 2007); State v.
Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, White County, slip op. at 14-15
(Tenn. Crim. App. Nov. 30, 2004) (stating that rape of a child may be committed
intentionally, knowingly, or recklessly), perm. app. denied (Tenn. Mar. 31, 2005). But cf.
State v. Charles L. Williams, No. M2005-00836-CCA-R3-CD, Davidson County, slip op. at
24-30 (Tenn. Crim. App. Nov. 29, 2006) (Welles, J., minority opinion as to the issue)
(asserting that reckless mens rea does not apply to rape of a child); State v. Weltha Womack,
No. E2003-02332-CCA-R3-CD, Knox County, slip op. at 11-13 (Tenn. Crim. App. Jan. 4,
2005) (holding that the trial court erred in charging the jury that it could find the defendant
guilty of aggravated rape, consisting of rape of a child less than thirteen years old, based
upon proof of reckless sexual penetration).
We believe the better position is stated in previous opinions of this court holding that
rape of a child can be intentional, knowing, or reckless. See, e.g., Chester Wayne Walters,
slip op. at 14-15. We note State v. Parker, 887 S.W.2d 825, 826-28 (Tenn. Crim. App.
1994), which held that a defendant’s mens rea for aggravated rape and aggravated sexual
battery was satisfied by a showing of his reckless belief that the victim was at least thirteen
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years old. We also note that our supreme court has said, albeit in the context of a double
jeopardy analysis, that a defendant may commit rape of a child with a reckless mens rea.
State v. Barney, 986 S.W.2d 545, 550 (Tenn. 1999). Similarly, the supreme court has said
in the context of a challenge to the sufficiency of the indictment that aggravated rape,
consisting of rape of a child less than thirteen years old, could be committed with an
intentional, knowing, or reckless mens rea. State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997).
We conclude that the trial court did not commit instructional error. The Defendant is not
entitled to relief.
VI
The Defendant contends that the trial court erred in sentencing by using an
inapplicable enhancement factor and in imposing consecutive sentences. The State contends
that the sentences are proper. We agree with the State.
Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).
However, “‘the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).
Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical information
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provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986). The record reflects
that the trial court followed the appropriate procedures in sentencing.
At the sentencing hearing, Ms. Clark testified about the effect the crimes had on the
victims. She said that the victims had a “normal life” until the crimes occurred. She said that
in the past three years, the victims had been in an “emotional state” and had asked “pitiful
questions . . . to try to justify what’s happened.” She said the victims’ behavioral changes
included severe depression and crying despite not being able to explain why they were
crying. She said the victims’ sleeping habits changed after the Defendant left the home. She
said she and the victims had trusted the Defendant.
Ms. Clark testified that H.C. told her of incidents of sexual abuse in addition to those
that were presented at the trial. She said H.C. began putting cotton swabs in her ears when
she was upset. She said H.C.’s teacher spoke with her about H.C.’s inability to focus in
class. She said that H.C. had severe anxiety and had a panic attack at school one year earlier.
She said that H.C. wrote notes stating that she loved her father but wondered why he
committed the crimes and why he did not love her. She said she had been concerned for H.C.
at times because of H.C.’s level of distress. She described an incident after the Defendant’s
first trial when H.C. threatened to hurt herself and Ms. Clark and had to be physically
restrained until she fell asleep.
On cross-examination, Ms. Clark testified that since January 2007, the victims
attended rape and sexual assault counseling every one to three weeks. She acknowledged
that the judge in her divorce proceedings admonished her that she was “turning [her] children
into rape victims.” She said that the months before January 2007 were among the best in her
marriage to the Defendant.
On questioning by the court, Ms. Clark testified that after negative comments were
made about the rape and sexual assault center, she sought another counselor for the victims,
but the victims wanted to stay with their familiar counselor. She said that K.C., who was
seven years old, showed signs of post-traumatic stress and anger. She said that the
Defendant’s church involvement began after January 2007. Ms. Clark read a letter she wrote
to the court that described the effects of the crimes and the legal proceedings on her family,
and particularly the victims.
Michelle “Shelly” DeMarsilis testified that she was a licensed clinical therapist at the
Sexual Assault Center, which was formerly the Rape and Sexual Abuse Center. She said she
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had a master’s degree, completed a two-year internship in order to become licensed, and had
been licenced for ten years. She said she used a non-directive approach in counseling
sessions, meaning she did not ask leading questions. She said she had been trained in means
to avoid inadvertently causing children to make false accusations. She said that the victims
needed weekly counseling and that Ms. Clark had not pursued counseling unnecessarily.
Ms. DeMarsilis testified that she began counseling the victims in February 2007. She
said that H.C. was the first of the victims to reveal acts of sexual abuse to her. She said H.C.
revealed the information bit-by-bit over time. She said the victims exhibited traits she
associated with sexual abuse, including emotional damage, nightmares, fear of being taken
from their home by the Defendant, crying, mood swings, poor concentration, anger, and
physically fighting with each other. She said that children sometimes became physical or hid
during a post-traumatic flashback. She recalled a counseling session in which H.C. was
angry, fought with K.C., ran from the office, hid under a table, and cried. She said that self-
destructive behaviors, such as H.C.’s putting swabs in her ears, was characteristic of a child
who was trying to gain control of her emotions. She said that H.C. picked her ears with
swabs until her ears bled. She said that due to H.C.’s difficulties, she encouraged Ms. Clark
to obtain a psychiatric medication evaluation. She said that based upon her experience,
H.C.’s and K.C.’s emotional and psychological injuries were severe. She said that sexual
abuse by a family member or over time could be more traumatic for children.
On cross-examination, Ms. DeMarsilis testified that the number of times she had
counseled the victims might be in the seventies or eighties. With regard to a document she
prepared for the court, she acknowledged that the list of future effects of child abuse applied
to children generally. On questioning by the court, Ms. DeMarsilis testified that she obtained
some of her information about the victims from third parties, such as a school counselor or
family member. She said that the victims’ statements about the abuse was consistent with
approximately ten occurrences. She said she observed several long-term effects of the abuse
in the victims: self-blame, anger, grief, loss, betrayal by a trusted person, and poor self-
image. She said H.C. had been suicidal, as well. She thought the victims would be “in and
out of therapy for a long time.”
Mike Williams testified that he knew the Defendant from a men’s group at Bellvue
Community Church and that the Defendant had been involved in community outreach
projects. He described the Defendant as “a class act” and “a nice guy.” On cross-
examination, Mr. Williams testified that he had known the Defendant for about three years.
He did not know if the Defendant participated in Bible study or service projects before
January 2007.
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Kimberly Clark, the Defendant’s sister, testified that she and the Defendant were
raised in a loving home. She said they attended church regularly until their parents’
restaurant business interfered. She said the Defendant attended sporadically until she
suggested he attend Bellvue, where she and their mother attended. She said the Defendant
participated in church service projects. She said that before attending Bellevue, the
Defendant sometimes attended another church with his then-wife and her family. She said
that she and the Defendant lived with their mother.
Kimberly Clark testified that she and her mother relocated from Florida to Tennessee
after the Defendant and Melanie Clark announced that they were expecting their first child.
She said they did so in order to be involved with the family. She said that they all vacationed
together and that she participated in other recreational activities with the Defendant and the
victims. She said that the Defendant was involved with the victims’ daily lives, that he was
the primary cook of the household, that he attended school functions, and that he loved the
victims. She said the Defendant was devastated that he had been away from the victims for
the past three years. She said the Defendant had strong support from his friends, coworkers,
and family. Ms. Clark read a letter she wrote to the court in which she stated her belief that
the Defendant was a good father and requested leniency for him.
Janet Clark testified that after the victims were born, she spent as much time as
possible with them. She said she babysat whenever she was asked. She said that she was at
their home alone with them and that she took them to other destinations. She never saw any
signs of sexual abuse, nor did either of the victims mention it. She said she had been
awarded grandparent visitation beginning in February 2008. She was allowed to see the
victims once a week for an hour in a psychiatrist’s office. She was required to pay $120 per
visit. The visits were later changed to once every two weeks for two hours at a different
location. She said that in the eighteen-month period of grandparent visitation, the victims
were happy and did not appear depressed or traumatized. A photograph album containing
photographs she took of the victims was received as an exhibit.
The presentence report reflects that the then-thirty-seven-year-old Defendant had a
bachelor’s degree and no criminal history. He had a history of steady employment. The
court received letters from the Defendant’s ex-wife and her family members, Ms. DeMarsilis,
Ms. Barnard, Mr. Jordan, and H.C.’s teacher. The trial court stated that it had read
approximately fifty letters written on the Defendant’s behalf, although the documents were
not included in the appellate record that has been transmitted to this court.
After receiving the evidence, the trial court found that the Defendant abused a position
of trust. See T.C.A. § 40-35-114(14) (2010). The court noted that violation of trust was
significant in light of the paternal relationship between the victims and the Defendant. The
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court also found that the victims were particularly vulnerable due to their ages of four and
six and in view of their trust relationship with the Defendant. See id. at -114(4). In this
regard, the court found it significant that the Defendant used the ruse of “digging for
treasure” and told the victims that it was their secret in order to make his abuse seem like a
game. The court stated that this approach would not have worked with an older child.
With regard to mitigating factors, the court rejected a finding that the Defendant’s
conduct did not cause or threaten serious bodily injury. Id., § 40-35-113(1) (2010). The
court noted, however, the Defendant’s favorable background, including his employment
history and lack of a criminal history. The court noted that the Defendant’s emotional and
financial support of his family was generally a favorable factor but that given the nature of
the crimes, the court would not give any mitigating weight to the factor.
The trial court found that despite the presence of significant mitigating factors, the
breach of trust involved in the Defendant’s offenses was “particularly egregious” and made
even more so by the ages of the victims. The court sentenced the Defendant to seventeen
years for each count of rape of a child and to ten years for each count of aggravated sexual
battery.
In considering whether the sentences would be served concurrently or consecutively,
the court noted that the offenses involved more than one victim. See id., § 40-35-115(b)(5).
The court stated that the severity of the crimes was exacerbated by the parental relationship
and the residual psychological impact on the victims. The court noted that H.C. in particular
was significantly affected by the crimes. The court said, however, that the time span of the
offenses and the nature and the scope of the sexual acts involved, while unacceptable, were
not particularly egregious compared to other child sexual abuse cases. The court found that
the relationship of the parties and the residual impact outweighed the other factors and
imposed partially consecutive sentences. The sentences for each victim were imposed
concurrently with each other, yielding a seventeen-year sentence for the offenses against each
victim. The sentences for the two victims were imposed consecutively, netting an effective
thirty-four-year sentence.
A. Length of Sentences
The Defendant contends that the trial court erred by applying the enhancement factor
for particularly vulnerable victims because the evidence used to support the factor had been
excluded in the court’s ruling on a pretrial motion in limine. The Defendant has not specified
the evidence he claims was erroneously considered, nor has he provided a citation to the
record for the trial court’s ruling excluding it. Tennessee Code Annotated section 40-35-
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114(4) provides for enhancement of a defendant’s sentence upon proof that “[a] victim of the
offense was particularly vulnerable because of age or physical or mental disability[.]”
The trial court applied the particularly vulnerable victims factor based upon the
victims’ ages of four and six and on the Defendant’s use of game-like ruses involving buried
treasure and keeping secrets that worked because of the victims’ ages. The evidence of these
facts came from Ms. Clark’s statements in the recorded conversations she had with the
Defendant. We note that the recordings of the Defendant and Ms. Clark’s conversations
played at trial were abbreviated. The record does not contain a transcript of a hearing or a
written order addressing redaction of the recordings in this regard. As we have stated, the
ruling appears to have been made before the first trial, with the parties relying in the second
trial on the court’s previous ruling. In any event, the unabridged conversations appear in the
record. In them, Ms. Clark stated that the victims said the Defendant’s actions were “a secret
game” and that K.C. reported that “it was like a treasure hunt.” We do not know whether the
evidence was excluded by agreement of the parties or by trial court ruling. If the latter, we
do not know the basis for exclusion. If the basis was that the evidence was hearsay, we note
that reliable hearsay evidence may be admissible at a sentencing hearing. See T.C.A. § 40-
35-209(b) (2010). We note, as well, that the Defendant did not object to the trial court’s
reliance on the evidence at the sentencing hearing.
In any event, the record provides independent support for application of the
enhancement factor. At the time of the crimes, K.C. was four years old and H.C. was five
and six years old. The Defendant was their father. There was proof that some of the offenses
were committed while he bathed the young girls. The Defendant testified that he attended
the victims while they were in the bathtub in order to “lifeguard” them. The proof at the trial
established that the Defendant told the victims that the abuse was a secret. The evidence
supports the trial court’s application of the factor. See, e.g., State v. Adams, 864 S.W.2d 31,
35 (Tenn. 1993) (“The factor can be used in an aggravated rape case if the circumstances
show that the victim, because of his age or physical or mental condition, was in fact
“particularly vulnerable,” i.e., incapable of resisting, summoning help, or testifying against
the perpetrator.”). The Defendant is not entitled to relief on this basis.
B. Consecutive Sentences
With regard to the court’s imposition of partially consecutive sentences, the
determination of concurrent or consecutive sentences is a matter left to the discretion of the
trial court and should not be disturbed on appeal absent an abuse of discretion. State v.
Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive sentencing is guided
by Tennessee Code Annotated section 40-35-115(b) (2010), which states in pertinent part
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that the court may order sentences to run consecutively if it finds by a preponderance of the
evidence that:
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope of
the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims[.]
Only one criterion is needed to support consecutive sentences. State v. Mickens, 123 S.W.3d
355, 394 (Tenn. Crim. App. 2003).
The record reflects that the Defendant’s convictions involve more than one victim.
The trial court considered the factors listed in section 40-35-115(b)(5) and concluded that the
aggravating circumstances of the relationship between the Defendant and the victims and the
residual harm to the victims outweighed the less aggravating evidence of the time span of the
activity and the nature and scope of the sexual acts. The evidence supports the trial court’s
ruling. The Defendant is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed in Counts V, VI, VII, IX, and X. The judgments in Counts I, II,
III, and IV are reversed, and the case is remanded for a new trial for those counts.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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