IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 18, 2011 Session
STATE OF TENNESSEE V. RANDALL KELVIN MADISON
Appeal from the Criminal Court of Davidson County
No. 2008-D-4188 Steve Dozier, Judge
No. M2010-00059-CCA-R3-CD - Filed May 4, 2012
A jury convicted Randall Kelvin Madison (“the Defendant”) of twenty-two counts of rape,
three counts of aggravated statutory rape, and one count of forgery. The trial court
subsequently merged several of the offenses so as to leave in place twelve counts of rape
and one count of forgery. After a sentencing hearing, the trial court ordered the Defendant
to serve an effective sentence of thirty-five years. In this appeal, the Defendant challenges
(1) the trial court’s ruling under Tennessee Rule of Evidence 404(b) that evidence of his
uncharged bad acts was admissible; (2) the State’s election of offenses; (3) the sufficiency
of the evidence; and (4) his sentence. We hold that (1) the Defendant is not entitled to
relief from the trial court’s Rule 404(b) ruling; (2) the Defendant has not demonstrated that
the State’s election of offenses was fatally deficient; and (3) the evidence is sufficient to
support his convictions. We also affirm the trial court’s sentencing decisions.
Accordingly, we affirm the Defendant’s convictions and sentences. 1
Tenn. R. App. P. 3 Appeal as of Right; Judgments
of the Criminal Court Affirmed; Remanded
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and J OHN E VERETT W ILLIAMS, J., joined.
Joy S. Kimbrough, Nashville, Tennessee, for the appellant, Randall Kelvin Madison.
Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; Sharon Reddick and
Jennifer McMillen, Assistant District Attorneys General; for the appellee, State of Tennessee.
1
We nevertheless remand this matter to the trial court for correction of the judgment orders to reflect
the ordered mergers.
OPINION
Factual and Procedural Background
The Defendant was indicted in December 2008 on twenty-two counts of rape, three
counts of aggravated statutory rape, and one count of forgery. All of the rape counts
involved the minor male victim R. H.2 Counts 1 and 2 each allege that the rape occurred “on
a date between August 1, 2004 and September 30, 2004, in Davidson County” and that the
rape “was accomplished without the consent of” R. H. Counts 3 through 22 each allege that
the rape occurred “on a date between August 1, 2005 and September 30, 2006, in Davidson
County.” Of these charged offenses, Counts 3 through 12 each allege that the rape was
committed with force or coercion, and Counts 13 through 22 each allege, in the alternative,
that the rape was committed by fraud. Count 23 alleges that, on June 8, 2006, the Defendant
forged “a writing purported to be the act of Dr. Theodora Pinnock” with the intent to harm
R. H. Counts 24 through 26 each allege that the Defendant committed aggravated statutory
rape against R. H. “on a date between July 1, 2006 and September 30, 2006, in Davidson
County.”3 The Defendant was tried before a jury on May 18 - 21, 2009.
A brief timeline will assist in placing the proof in context. The victim’s birth date is
October 26, 1989. Accordingly, he turned fourteen on October 26, 2003. The victim’s
freshman year in high school began in the late summer of 2004; his sophomore year began
in the late summer of 2005; his junior year began in the late summer of 2006; and his senior
year began in the late summer of 2007. The victim began working at Academy Sports in the
late summer or early fall of 2006, shortly before he turned seventeen on October 26, 2006.
Counts 1 and 2 of the indictment therefore refer to a period of time when the victim was
fourteen years old and at the beginning of his freshman year in high school. The remainder
of the counts refer to a period of time when the victim was fifteen and sixteen years old.
At trial, the victim testified that he was currently nineteen years old and that he lived
with his mother, T. D.4 The victim has a younger brother and a younger sister whom his
mother adopted several years earlier after foster-parenting them. The victim explained that
his father lived in Antioch but that he had contact with his father only “now and then.”
2
This Court identifies victims of sex crimes only by their initials.
3
Aggravated statutory rape became a crime on July 1, 2006. See 2006 Tenn. Pub. Acts ch. 890 §§
5, 26.
4
In an effort to protect the victim’s identity, we also refer to his mother by her initials.
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The victim testified that he was active in his church, which he had been attending his
“whole life.” He met the Defendant through church when he was in the eighth grade. The
Defendant became a friend of the family and acted as “a mentor to [the victim] and the other
youth in the church.” The victim started spending time with the Defendant outside of church,
including attending the Defendant’s family functions, going to movies, and going out to eat.
When T.D. began traveling overnight for her job, she suggested the victim spend those nights
with the Defendant because she did not want the victim staying at home by himself.
According to the victim, the Defendant lived by himself in a two bedroom house. The
first night the victim spent with the Defendant, he was fourteen years old and a freshman in
high school. It was a Monday night in the early fall of 2004 and they watched football
together. After the game, the victim went to bed in the second bedroom. During the night,
the victim woke up to find the Defendant “on top of [him] with his back facing [him].” The
victim explained that the Defendant was “moving,” which the victim described as “grinding
back and forth.” The victim stated that his (the victim’s) shorts were on, but that his
“privates were out.” The victim described their contact as “[s]kin to skin.” When asked
where his “privates” were in relation to the Defendant’s, the victim responded, “[i]n his anal
region.” When the Defendant realized the victim had awakened, the Defendant left the room.
The victim then got up, went to the bathroom, and went back to sleep. The next day, the
Defendant took the victim to school “as if nothing happened.” They did not speak about the
incident.
The victim returned home that afternoon because his mother was back from her trip.
He did not say anything to her about what had happened. The victim explained his silence:
“Because my mother, she’s the type that when it comes to her children she doesn’t play. She
will take a life for her children. And if I would have told her what happened, she would have
taken his life.” The victim told no one else about the incident.
The victim continued seeing the Defendant as before and did not change his conduct
toward the Defendant because he was concerned that people would “question” a change in
his behavior. Roughly a month later, his mother went out of town again and again suggested
that he spend the night with the Defendant. The victim testified that he did so because he
“didn’t have anywhere else to go.” The victim testified that, as occurred previously, he
awoke to find the Defendant straddling him. When the victim asked him what he was doing,
the Defendant did not reply but left the bedroom. The victim stated that, during the
encounter, his penis was in the Defendant’s anus. The next morning, nothing was said and
the Defendant took the victim to school. The victim testified that he had not consented to
this behavior on either occasion.
The victim spent five to seven additional nights with the Defendant during the ninth
grade (2004-2005), but nothing more occurred that school year.
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Also during his freshman year, and continuing through his sophomore year (2005-
2006), the victim frequently would meet the Defendant after school at the Defendant’s place
of employment in downtown Nashville. On the afternoon of May 9, 2005, while the victim
was still a freshman, the victim told the Defendant that he wanted to use the Defendant’s
work computer to look for a summer job. Instead of looking for a job, however, the victim
used the Defendant’s work computer to visit a pornographic web site (“the Computer
Incident”). The Defendant later confronted him about what had happened, explaining that
his office had scanned the computer and discovered the visit to the website. The victim
acknowledged what he had done, and the victim subsequently spoke with Dr. Pinnock, the
Defendant’s supervisor, about his activities. The victim acknowledged to Dr. Pinnock that
he had used the computer for this purpose, and “signed some paperwork saying that [he] did
it and that [he] agreed that it wouldn’t happen again.” The victim “thought that was the end
of it.” The paperwork that the victim signed was admitted into evidence. It is titled
“Statement” and sets forth the following:
I, [R. H.] on May 9, 2005 sat at the desk of [the Defendant] and enter[ed] the
internet without his permission. Upon entering the internet I went to several
porn websites before he returned to his desk. Once he returned I immediately
closed the sites but he was able to view one and asked what was I doing. He
went on to explain to me that he could lose his job behind [sic] this incident.
I do apologize to [the Defendant] and those involved for the actions taken by
me.
I therefore affix my signature upon this statement this 11th day of May, 2005.
The statement is also signed by a notary public.
That summer of 2005, between the victim’s freshman and sophomore years, the victim
was engaged in volunteer activities and spending time with his family in Mississippi, so he
did not see the Defendant. Their relationship resumed with the new school year, however.
During a weekend early in the new school year (the fall of 2005), the victim was again
spending the night with the Defendant because the victim’s mother was out of town. The
Defendant brought up the Computer Incident and told the victim that the Defendant “could
lose his job” and also that the victim “could go to jail no less than seven years [because he
had] looked up pornography on a State computer.” At this time, the victim’s mother was in
the process of trying to adopt the victim’s younger brother and sister. The Defendant pointed
out to him that, if he (the victim) went to jail, he would not be available to help his mother
with the children. This disturbed the victim because he “would do anything” for his mother.
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He told the Defendant,
no, no, no, you can’t send me to jail. You can’t send me to jail. I have to be
here for my mother. I have to help her raise these two kids. I’m the oldest in
the house. I really need to – she really needs me to help her with these kids.
He testified that he “was basically begging [the Defendant] not to send [him] to jail.”
After this conversation, the victim went to take a shower. While he was in the shower,
the Defendant entered the bathroom and got in the shower with him. The victim assumed
that the Defendant wanted sex and also assumed that he had to acquiesce to the Defendant’s
wishes in order “to be here for [his] mother and these kids.” However, all the Defendant did
was wash the victim’s body.
In addition to this weekend, the victim spent most of his Wednesdays after school
during his sophomore year with the Defendant. The victim would arrive at the Defendant’s
workplace and then spend time at the Defendant’s residence before they would go to evening
church activities. The victim testified, “And while I was at his house pretty much every
Wednesday all of my sophomore year we would have sex every Wednesday at his house.”
The victim described this sex as him penetrating the Defendant. Between five and ten times,
the Defendant would perform oral sex on the victim first in order to give the victim an
erection. After the sexual encounters, the victim would “go wash up and then [they] would
leave and go to the church.”
The victim testified that he did not want to be having sex with the Defendant, but that
every time he tried to end their sexual relationship, the Defendant would threaten him in
some way. The victim stated that the Defendant would bring the Computer Incident “back
up” and that “every time [the victim] would pull away it was always a different threat.” The
victim said, “It was always something like letters would be sent to my house, I would get e-
mails saying you should do this or you need to do that.”
The sexual relationship continued into the summer following his sophomore year. At
the beginning of his junior year, the victim started a job at Academy Sports in the Rivergate
area in Davidson County. The victim testified that he and the Defendant had sex in the
bathroom at the victim’s job site “a couple of times.” Also, when asked if he and the
Defendant ever had sexual relations in Nashville other than at the Defendant’s house, the
victim responded, “I think it’s happened in my house twice.”
When the victim tried to end the sexual relationship at the beginning of his junior year
(the late summer/early fall of 2006), the Defendant told him “whatever is in the dark shall
come to light.” The victim became concerned that the Defendant would tell people at their
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church that the victim was a homosexual. The victim testified, “I didn’t want anybody
thinking I’m a homosexual . . . because I’m not. And I didn’t want anybody looking at me
differently because of this.” The Defendant also claimed to have made tape recordings of
voice mail messages that the victim had left him. The Defendant gave him a tape, which the
victim destroyed after listening to it. The Defendant told him he had made multiple copies,
however, and the victim was afraid the Defendant would use the tapes to convince his mother
and people in the church that he was a homosexual. At about this same time, the victim’s
mother confiscated the victim’s cell phone because of a bad report card. She found a voice
mail message from the Defendant saying that the Defendant “loved [the victim] and stuff like
that.” T. D. confronted the victim and told him to cut all contacts with the Defendant. The
victim did not cut all contacts, however, and although he told the Defendant about his mother
hearing the voice mail, the relationship continued and moved to the victim’s job site and then
outside of Davidson County.
In July 2007, almost a year later, the victim finally told his mother about his
relationship with the Defendant. They then went to the Metro Police Department, taking a
collection of e-mails and other correspondence associated with the Defendant. The victim
answered affirmatively when asked on direct examination if “[t]he nature of those e-mails,
is that the nature of the type – kind of things he would say to you basically from the
beginning after he caught you looking at the pornography?” The victim also explained, “if
I would make him mad, he would be like you need to do this or you need do that or I would
do this or I would do that.” The victim also explained his acquiescence to the Defendant’s
demands: “I was looking for the best thing for me and my family and I feel that I did it
because I was helping my family as well as [my younger brother and sister] ’cause I could
see them going back to children’s services . . . [a]nd so I did that for me and my mother.”
The victim also testified that he believed he would go to jail if he ended his relationship with
the Defendant.
On cross-examination, the victim acknowledged that he stayed with another friend of
the family from church the first time his mother went out of town. He also explained that he
had received e-mails from the Defendant that predated the ones he turned over to the police,
but that he had already deleted those from his inbox. He reiterated that the first sexual
incident occurred during his freshman year. He also clarified that he was sixteen years old,
about to turn seventeen, when he began working at Academy Sports at the beginning of his
junior year.
T. D. testified that she was a computer systems analyst and that her work began taking
her out of town “frequently” during the period September 2003 through March 2004. The
victim was “about 13, 14” during this time. While she was out of town, sometimes the victim
stayed with T. D.’s brother and other times he stayed with the Defendant. She did not
develop any concern about the victim’s relationship with the Defendant for several years.
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She became concerned, however, when a letter dated June 8, 2006, on State letterhead came
in the mail addressed to the victim. She read the letter and, although it purported to be from
a Dr. Pinnock, she became suspicious that it was actually from the Defendant. The letter,
admitted at trial, refers to an “internet violation” made on the Defendant’s computer by the
victim and that the Defendant’s job was thereby at risk. The letter recites that the Defendant
had decided not to pursue the matter against the victim, but asserts that the “division/State
of Tennessee still can feel the need to press charges if found necessary.”
T. D. called Dr. Pinnock and confirmed that Dr. Pinnock had not written the letter.
She then spoke with the Defendant about the letter, and he told her that he suspected a
coworker was responsible for it because they were upset about his high salary. She also had
a conversation with the victim about the letter, and he told her about the Computer Incident
and that he and the Defendant had spoken with Dr. Pinnock about it.
T. D. testified that she also received a letter addressed to her that was signed “B” and
which claimed the victim was attending clubs while visiting his father. T. D. threw this letter
out after she asked one of the victim’s friends, whose name started with “B,” about it and he
denied having written it. She also received a letter that purported to be from a girl that the
victim was dating. T. D. described the letter’s contents as “crazy,” and, when the victim
disavowed any knowledge of why his girlfriend would write such things, they threw the letter
out.
T. D. testified that she became particularly concerned about her son’s relationship
with the Defendant in October 2006, at the time the victim began working for Academy
Sports. She had the victim’s cell phone and listened to a voice mail that the Defendant left
on it. She recalled that the message included the words, “you felt good last night.” She
spoke to the victim about it, but he explained it away. She then called the Defendant and
threatened him “that he better stay away from my child or I would have the police over here
before he knew it.” The Defendant hung up on her and, to her knowledge, her son had no
further contact with the Defendant.
After she discovered another phone call from the Defendant in July 2007, she
confronted the victim and he confessed his sexual relationship with the Defendant. T. D.
testified that the victim told her the relationship started when the victim had accessed the
pornographic website on the Defendant’s computer at work. The victim told her that the
Defendant had threatened him.
T. D. stated that the victim’s freshman year in high school was 2004 to 2005 and he
turned 15 in October 2004. His sophomore year was 2005 to 2006 and he turned sixteen in
October 2005. His junior year in high school was from 2006 to 2007, and his senior year
was 2007 to 2008. She also explained that he was retained a year in the seventh grade.
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On cross-examination, T. D. stated that, after the victim’s father left the family home
in July 2003, the victim saw his father on average about five or six times a year.
Dr. Theodora Pinnock testified that she was employed by the State of Tennessee
Department of Health as its Director of Maternal and Child Health. The Defendant was
under her supervision and was employed as an administrative services assistant. She recalled
the victim’s visiting the Defendant at the workplace and the Defendant’s introducing the
victim to her as his godson. In May 2005, the Defendant told her that the victim had
accessed a pornographic website on the Defendant’s work computer. Dr. Pinnock told the
Defendant that persons other than state employees should not be using state computers. She
spoke with the victim about the incident, and he acknowledged his actions. The victim
apologized and executed a notarized statement of his apology. Dr. Pinnock told the victim
that the incident was then “over.” The Defendant was not disciplined over the incident.
According to Dr. Pinnock, the Defendant told her that he had discovered the website
visit himself. She was not aware of any “scan” of the Defendant’s computer. Dr. Pinnock
denied writing the letter dated June 8, 2006, purporting to be from her. She also denied
having given the Defendant permission to draft the letter and denied having ever given him
permission to sign her name.
Bryan Doersam, a detective with the Metro Police Department Sex Crimes Unit,
testified that he investigated the instant crimes after the victim and the victim’s mother came
to the office in July 2007 and filed a complaint against the Defendant. At that time, the
Defendant was forty-eight years old and the victim was seventeen. The victim provided Det.
Doersam with numerous documents including letters and e-mail correspondence. The victim
also provided voice mails from the Defendant that had been left on the victim’s phone. In
furtherance of the investigation, the victim was outfitted with a wire and then had a
conversation with the Defendant. This conversation was recorded and monitored by Det.
Doersam, who described the conversation as follows:
The nature of that body wire conversation was [R.H.] confronting [the
Defendant] about this relationship; him not wanting to be a part of that; [the
Defendant’s] overall theme was him continuing the fact that this is your fault,
[R. H.], I only did these things, you know, because I wanted you to be truthful
with me.
He admits to calling [R. H.’s] mother at work. He admits to having
someone call his house trying to keep this relationship going. He admits to
sending letters to keep –
-8-
Det. Doersam was interrupted by an objection, but later testified that, during the monitored
conversation, the Defendant admitted that he and the victim had sex “[a]nd that he thought
all this was [R. H.’s] fault; that the stuff with him looking at pornography at his work had
kept him from getting raises, had kept him from getting promotions, that that was all [R.
H.’s] fault.” The Defendant also asserted that the victim was facing jail time.
The Defendant was subsequently taken into custody at his workplace and Detective
Carrigan advised the Defendant of his Miranda rights. Det. Carrigan then walked the
Defendant to the Criminal Justice Center, which was only a couple of blocks away. On the
way, Det. Carrigan asked the Defendant “what he thought we were there for.” The
Defendant asked him “if it was about [R. H.].” Det. Carrigan did not know the victim’s
identity at that time, so he replied, “tell me about [R].” According to Det. Carrigan, “a[t] that
point, [the Defendant] started discussing his relationship with [R. H.] and admitted to a
sexual relationship with him.” Det. Carrigan stated that he audio-recorded this conversation.
Once they reached the Criminal Justice Center, they continued the interview and switched
to a video recording. The video recording was played for the jury, and a transcript was also
provided.
During the interview, the Defendant admitted that, as of the time that R. H. accessed
pornography on his work computer, their sexual relationship had been ongoing for about a
year. He clarified that the first time they had sex was on a Monday night during the fall of
2004 or 2005. It was R. H.’s first visit to the Defendant’s house. He described this initial
sexual contact as “his penis in me.” He later stated that, on this first occasion, the victim first
had anal sex with him and then he had anal sex with the victim. Their sexual relationship
continued into May of the following year when the incident with the Defendant’s work
computer occurred. The Defendant stated that, during this interval, he and R. H. had sex
“about 30” times.
The Defendant explained that the victim came to stay at his house when the victim’s
mother was out of town. The Defendant stated that these visits occurred a couple of times
a month. On a “couple” of occasions, the victim stayed two nights on these visits.
The Defendant said that the victim was lying when he claimed that the Defendant
started their sexual relationship. According to the Defendant, the victim initiated the first
sexual episode. The first episode occurred on the Defendant’s couch, not in the spare
bedroom. The Defendant stated that the last time he had sex with the victim at the
Defendant’s house was in October 2006.
The Defendant stated that the last sexual contact he had with the victim was in a hotel
in Sumner County on July 7, 2007. The Defendant admitted that he and the victim had been
to this hotel about five or six times, the first time being in January 2007. The Defendant
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explained that they moved their sexual relationship to Sumner County because the victim’s
mother had demanded that they stop speaking to each other. The victim had begun working
at Academy Sports in Rivergate and suggested to the Defendant that the Defendant contact
him at his job. The hotel was nearby. The Defendant would visit the victim on the victim’s
lunch break.
The Defendant stated that he performed oral sex on the victim twice over the course
of their relationship. Both of these incidents occurred in Davidson County. The victim
performed oral sex on the Defendant three or four times.
The Defendant admitted that he and the victim exchanged e-mail correspondence.
When confronted with the documents provided by the victim, the Defendant acknowledged
his authorship. He also admitted having written and signed the letter purportedly from Dr.
Pinnock and acknowledged having sent a letter to the victim from a fictitious attorney, again
reminding the victim of the Computer Incident. He sent the victim these letters in an effort
to intimidate him into continuing their sexual relationship. The Defendant also admitted
writing letters that purported to be from a girlfriend of the victim’s and from a “concerned
neighbor.” He wrote these letters to get the victim in trouble with his mother in retaliation
for the victim’s lying to him. When Det. Carrigan asked,
And then the other letters you sent on your own, and other e-mails you sent on
your own were also for that same purpose of intimidating, threatening,
coercing him to continue having sex with you, or else I’m coming out with all
this other stuff[,]
the Defendant replied, “Yes.”
The Defendant explained that he had taped messages that the victim had left on his
voice mail and had threatened the victim with turning the tape over to the victim’s mother
if the victim refused to continue their relationship. He also wanted the tape to prove to the
victim’s mother that “this wasn’t something that was started by me.” The Defendant denied
that he was interested only in continuing the sexual aspect of their relationship and averred
that he had some “pretty deep feelings” for the victim.
The Defendant explained that he felt the victim trying to pull away from him after the
Computer Incident. The Defendant also admitted to having become jealous when he learned
that the victim was spending time with girls. The Defendant wanted the victim to be
“faithful” to him.
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Toward the end of the interview, the following colloquy transpired:
CARRIGAN: November of ‘04 you started to have sex with him at your
house.
[DEFENDANT]: Right.
CARRIGAN: That night he had anal intercourse with you, you had anal
intercourse with him.
[DEFENDANT]: Right.
The Defendant also reiterated that, between November 2004 and May 2005, he and the
victim had sex about thirty times. Between May 2005 and June 2006, they had sex in the
“general range” of one hundred times. The last time they had sex at the Defendant’s house
was in October 2006 when the victim put his penis “in” the Defendant. In January 2007, they
started having sex in Sumner County, about once or twice a week depending on the victim’s
work schedule. The Defendant also admitted that he had sex with the victim once under a
bridge near the victim’s house. This episode consisted of the victim placing his penis in the
Defendant.
In addition to giving a statement, the Defendant consented to a search of his vehicle
and home. In the Defendant’s home, Det. Doersam found “an application for a criminal
arrest warrant that was filled out and had the victim’s . . . information on it.” This document,
admitted at trial, purports to be a form from the Juvenile Court of Davidson County. It
indicates May 9, 2005 as the date of the crime, and bears the purported signatures of Shirley
Hall, Deputy Clerk Notary, and Leon Ruben, Judge. The document also indicates that the
Defendant swore the application out on May 30, 2007. The crime is described as “State
property was used by [the victim] to go on the internet to view several porn websites.” 5 Also
found was a letter dated January 5, 2007, addressed to the victim stating, in part,
[t]his tape consist[s] of some love messages you left for me on either my
home, work or cell phone. It seems that you will never tell your mother the
truth so since I’m the bad guy listen to them closely. I know you don’t want
your mother or friends to hear them. I have 6 more copies but the one for your
mother have all of them and then some, they are all ready to be mailed unless
you give me a call.
5
The victim testified that he never saw the warrant, however.
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Also found in the Defendant’s home were various items of sexual paraphernalia.
Det. Doersam testified that he asked the Defendant about the “tapes” but stated that
the Defendant never produced such a tape to him. On cross-examination, Det. Doersam
acknowledged that they did not have emails from 2004, 2005, or 2006, the period of time
referred to in the indictment.
The victim also provided Det. Doersam with voice mail messages that the Defendant
left on his phone in 2007. These messages were played for the jury over the defense’s
objection. This Court has listened to these messages but found them largely unintelligible.
Although the record indicates that a transcript was made of these messages and provided to
the jury, the record before us does not contain such a transcript.
In addition to the Defendant’s statement and voice mail messages, the trial court
admitted numerous documents that the Defendant had admitted authoring. As set forth in
more detail below, the trial court ruled that these documents were admissible after
conducting a Tennessee Rule of Evidence 404(b) hearing prior to trial. The majority of these
documents consisted of e-mail correspondence between the Defendant and the victim that
took place after the alleged offenses with which the Defendant was charged. This e-mail
correspondence from the Defendant to the victim includes the following excerpts:6
February 1, 2007: . . . I should be your main concern trying to make me
happy to a point so that I will not mail the tapes. . . . [Y]ou have a decision to
make by next Wednesday, you’re either going to love me truthfully or else I’ll
send the tapes out that Thursday. I have nothing to lose . . . . Do you really
realize who I’ll be sending these tapes to, you’ll never have a girlfriend R[],
you’ll be put out [of] your mother’s house and into the BIG house (jail) you
don’t realize the effect these tapes will cause to you and others. . . . I can’t and
will not continue to go back and forth with you and how you feel, you’re
saying you love me, we have sex, you’re kissing me and then you feel that we
should just be friends and work our way up. . . . You have until next
Wednesday to make a decision[.]
A letter attached to the February 1 e-mail included the following:
Your mother knows I will not let it die and more embarrassment will be on you
all instead of me and especially with these tapes. Not only will she put you out
after hearing the tape you’ll also go to jail. I haven’t let anything go
6
The correspondence also included additional messages not here excerpted.
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everything is still in place. I am hating your black ass every second, minute
and hour of the day, I’ve never hated anyone like this before that’s why I need
to get rid of all this hate. I know it’s wrong to even hate someone so that’s
why this proposal is being made to you. You need to love me as you have said
in the pas[t] to make me feel that way again so that I can get rid of this hate
and once I do I’ll give up the tapes and then walk away from it all but I can’t
with all this hatred inside of me. I know you can do it because you do
whatever you want when and how you want to do it and I know that there’s
some fire still down inside of you that really loves me. As I said once I feel
the love for you again I’ll walk away from it all. That Tuesday when we had
sex I was trying to see if I could feel something then but to know [sic] avail.
I walked away sore for four days because I told you it had been a long time and
that it would hurt. When I feel your hard dick I want to feel the sensation of
really wanting to be with you that burning desire and when you are up inside
of me I want to feel that you are search[ing] to hit that spot as you have before
but now all I can fe[e]l is hatred for you. . . . Let me say this your black ass is
living on a time bomb and I don’t give a damn about you R[] in the pas[t] yes
but now it’s really different and you need to understand that, I’m not playing
around. . . . Not only am I going to send the tape to your mother but a copy to
DCS as well now you know what that will do for your mother’s household. So
you’ll be put out and going to jail and your mother will be investigated with
those two children because I have a nice letter to go in with the tape. . . . R[],
there’s not going to be a girlfriend at all in your life if this is not solved. I will
send a copy of these tapes to every girl I think you’re interested in or that
might be interested in you. . . . I use[d] to just sizzle with smiles when I think
of the time I was taking you to Jack in the box when your dick was stiff and
hard and then we went to the house and had sex, the time when your mother
went to the Tom Joyner show early in the morning when you bucked me on the
big chair and made the both of us cum at the same time you were ever so
gentle, the time when you had me sitting on your lap and when you finally hit
that spot you had we [sic] screaming. . . .the time when we made love and
afterwards you held me in your arms and we sleep through the night, the time
when you bucked me in my living room in the wing back chair, the time at the
hotel when you began to undress me and you were able to get two that night
within an hour and the times when you would get two or three when we would
go to my house for an hour before time for you to go to the church. . . . R[],
you’re the only one that can make this change so its best you contact me
tonight or your life will become a living hell beginning on Monday there will
be three tapes that will go out on Monday and I’m sure you can guess which
ones they are now your mother will have to sign for hers at work or whoever
is at the reception area.
-13-
March 21, 2007: . . . You lied to me about your break on Sunday which
isn’t the first time you lied about you[r] break. . . . I had Attorney Burt to call
your manager about your break on Sunday and why you lie so I just don’t
know. You know you can lose your job but you w[o]n[’]t have to worry about
that long. . . . I can’t continue trying to stop what should have been done at
first and that is send your ass to jail and mail those tapes. . . . I hope you realize
that you lying to me wasn’t hurting me at all it was only putting yourself in
danger of being put out and going to jail. . . . Oh by the way I’m up here this
morning to meet with Attorney Burt at 7:30 so its’ almost that time. BYE.
April 3, 2007: . . . If you really wanted to take me to the hotel that is
what would have happen, your interest has to be in taking me to the hotel also
but not thinking about [your prom date] when we’re together. Your interest
is really not in me it’s about making sure that those tapes aren’t mailed and you
going to jail. . . . Now we had better be together at the hotel Wednesday and
Saturday making hot passionate love or you will not have to worry about the
prom at all.
April 5, 2007: . . . I must say that I am some what happy today after last
night. You really put it on me in a good way it was amazing how you were
able to hit it to the left and right with me riding you. Even though I had to take
it out a couple of times due to the hurting but you put it back in. Now that was
making love and not just having sex. . . . I was thinking about how we would
go to the house before taking you to the learning center and I would push you
against the wall and start taking off your clothes now those were some good
days. You were good at making us both cum when you’re on top and playing
in my ear with your tongue.
May 21, 2007: . . . [Y]our time is running out. . . . I’ve said to you I will
not be played, taken advantage of, will not put up with this as long as I have
in the pas[t] and I will not lose this time around. I am holding to that and once
the time table has come and you have not made things happen then I will walk
and things will beg[i]n] to happen, the tape to your mother and Attorney Burt’s
action.
May 30, 2007: . . . I am moving on with my life without you in it. I
deserve some true happiness in my life without not [sic] a bunch of games of
lies and deceit. I can truly say that I tried and did put my best foot forward
with you and did all that I could for and with you. Now I must move on
because I can’t continue to try and protect you any longer you must pay for the
crime you committed. . . . I’m going downtown this morning to put the next
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step of my plan into action. You haven’t taken me serious at all in any of this
but I can have the item mailed to your work address . . . .
June 17, 2007: . . . I don’t care if we don’t see each other again before
July 2 all I know is if those 3 conditions are not me[]t I’ll see you in court. . . .
You don’t think I’m going to go through with it but I can show you better than
I can tell you especially after all you’ve done to me and how you’ve treated
me. I mean nothing to you except just a get over. We’ll see in the end.
June 18, 2007: . . . What I want to feel is that I’M IN LOVE WITH
YOU AND YOU’RE IN LOVE WITH ME that’s all I want. I want to be
happy like I was last Wednesday and you said it can happen.
June 20, 2007: . . . You show me everyday when we’re apart that I’m
not important in your life when with the situation at hand of you going to jail.
. . . I’ve accepted the fact that you got me into this and I deal with it but
throughout all this time we’re only together for an hour 2, 3 and sometimes 4
times out of the week but can never be together outside and then how you lie
and deceive me but want me to continue to be that good old crazy man and
dismiss the application for warrant.
July 17, 2007: . . . Now I did call you yesterday but no more after I left
work so now I take it you have told your mother that I’ve been calling you and
God knows what else. I know you haven’t told her the truth and it’s a good
thing I did save that message you left yesterday morning and now I can add it
to the tape I have since you have destroyed yours. You talking all about
religion and godly things what you did yesterday was not godly and at your
mother’s house, your lying is not godly so it’s about whatever will benefit you
but trust me it’s all going to catch up with you and remember you’ll be
t[ur]ning 18 in October you’ll be an adult.
(Emphases added). In addition to these (and other) e-mails, the admitted documents include
a handwritten letter dated July 17, 2007, that the Defendant acknowledged having written and
sent to the victim’s mother. It is signed with a female name and requests T. D. to “have [the
victim] stop calling me” and accuses the victim of calling her “ugly names” and asking her
to come to his house for sex. Also admitted was a typewritten letter dated July 18, 2007,
addressed to the victim’s mother and from “Concern Neighbors.” This letter claims that the
authoring wife and her husband were walking in the neighborhood and saw the victim and
his girlfriend “caring [sic] on in the front window ceil [sic] of your home.” The author
expressed concern that “that type of caring [sic] on should be in the privacy of ones home
-15-
and not in public view.” The Defendant admitted that he wrote this letter in an attempt to get
the victim in trouble.
Detective Carrigan also testified at the trial as the State’s final witness. He clarified
that it was not a crime to look at pornography on a state computer.
After the State rested, the trial court denied the defense motion for judgment of
acquittal. The State then made to the jury the following election of offenses as to the counts
in the indictment that alleged sex offenses:7
Count 1, rape, lack of consent, refers to the proof that the defendant
penetrated his own anus with the victim[’s] penis on a date in the late summer,
early fall of 2004 at the defendant’s home on Longleaf Court in Davidson
County. This count represents the first incident of sexual abuse recalled by the
victim.
Count 2, rape, lack of consent, refers to the proof that the defendant
penetrated his own anus with the victim’s penis on the date in the late summer,
early fall in 2004 at the defendant’s home on Longleaf Court in Davidson
County. This count represents the second incident of sexual abuse recalled by
the victim.
Counts 3 and 13. Rape by force of [sic] coercion and rape by fraud,
alternative theor[ie]s. Both counts reflecting the proof that the victim
penetrated the defendant’s anus with his penis on a date after the . . . May 2005
porn incident at the defendant’s home in Longleaf Court in Davidson County.
These counts refer to the first incident of sexual penetration after the defendant
caught the victim viewing pornography.
Counts 4 and 14, rape by force or coercion, and rape by fraud,
alternative theories. Both counts reflecting the proof that the victim penetrated
the defendant’s anus with his penis on a date after the May 2005 porn incident
at the defendant’s home on Longleaf Court in Davidson County. These counts
refer to an incident of anal penetration after the defendant performed oral sex
to cause the victim to have an erection.
Counts 5 and 15, rape by force or coercion, and rape by fraud,
alternative theories. Both counts reflecting the proof that the victim penetrated
7
Because there was only one count of forgery, and because the count referred specifically to the
purported letter from Dr. Pinnock, the State was not required to make an election as to this offense.
-16-
the defendant’s anus with his penis on a date after the May 2005 porn incident
at the defendant’s home on Longleaf Court in Davidson County. These counts
refer to the first incident of sexual contact occurring on a Wednesday before
church during the victim’s Sophomore year.
Counts 6 and 16, rape by force or coercion and rape by fraud,
alternative theories. Both counts reflecting the proof that the victim penetrated
the defendant’s anus with his penis on a date after the May 2005 porn incident.
This count refers to an incident of sexual contact occurring under a bridge near
the victim’s home.
Counts 7 and 17, rape by force or coercion, and rape by fraud,
alternative theories. Both counts reflecting the proof that the victim penetrated
the victim’s anus with his penis on a date after the May 2005 porn incident at
the defendant’s home on Longleaf Court in Davidson County. These counts
refer to an incident of sexual contact during the summer prior [to] the victim’s
junior year in high school.
Counts 8 an[d] 18, rape by force or coercion and rape by fraud,
alternative theories. Both counts reflecting the proof that the defendant
performed oral penetration on the victim[’]s penis on a date after the May 2005
porn incident at the defendant’s home on Longleaf Court in Davidson County.
These count[s] refer to the first incident of the defendant performing oral sex
on the victim prior to their engaging in anal sex.
Counts 9 and 19, rape by force or coercion and rape by fraud,
alternative theories. Both counts reflecting the proof that the defendant
performed oral penetration on the victim’s penis on a date after the May 2005
porn incident at the defendant’s home on Longleaf Court in Davidson County.
These counts refer to the last incident of the defendant performing oral sex on
the victim.
Counts 10, 20 and 24 rape by force or coercion, rape by fraud, and
aggravated statutory rape, alternative theories. All counts reflecting the proof
that the victim penetrated the defendant’s anus with his penis on a date in the
late summer or early fall of 2006 prior to the victim becoming employed at
Academy Sports at the defendant’s – at the defendant’s home on Longleaf
Court in Davidson County. These counts refer to the first incident of sexual
contact after the victim received the forged letter from Dr. P[i]nnock.
-17-
Counts 11, 21 and 25, rape by force or coercion, rape by fraud, and
aggravated statutory rape, alternative theories. All counts reflecting the proof
that the victim penetrated the defendant’s anus with his penis on a date in the
late summer, early fall, 2006 prior to the victim becoming employed at
Academy Sports at the defendant’s home on Longleaf Court in Davidson
County. These counts refer to an incident of sexual contact that occurred a
short time prior to the victim’s 16th birthday. This is the last time they had sex
at this location.
Counts 12, 22 and 26, rape by force or coercion, rape by fraud, and
aggravated statutory rape, alternative theories. All counts reflecting the proof
that the victim penetrated the defendant’s anus with his penis on a date in early
fall of 2006 in the unisex bathroom at Academy Sports[.]8
The defense put on no proof.
After deliberating, the jury convicted the Defendant of all counts as charged. After
a hearing, the trial court sentenced the Defendant as a standard offender to eight years each
on Counts 1 and 2 (both counts charging rape); eleven years each on Counts 13 through 22
(all counts charging rape); two years on Count 23 (charging forgery); and four years each on
Counts 24 through 26 (all counts charging aggravated statutory rape). The trial court then
merged Counts 3 through 12 (which charged rape by force or coercion) with Counts 13
through 22 (which charged rape by fraud), respectively; Count 24 (which charged aggravated
statutory rape) with Counts 10 (rape by force or coercion) and 20 (rape by fraud); Count 25
(aggravated statutory rape) with Counts 11 (rape by force or coercion) and 21 (rape by fraud);
and Count 26 (aggravated statutory rape) with Counts 12 (rape by force or coercion) and 22
(rape by fraud).9 The trial court ordered some of the sentences to be served consecutively,
resulting in an effective sentence of thirty-five years.
On appeal, the Defendant challenges (1) the trial court’s 404(b) ruling; (2) the election
of offenses submitted by the prosecution (including a claim of double jeopardy); (3) the
sufficiency of the evidence; and (4) his sentence.
8
This is the election of offenses delivered verbally by the prosecutor to the jury as reflected in the
transcript of evidence. Although the trial court told the jury that the jury charge would also include the
State’s election of offenses, the record on appeal does not contain either a transcript or a copy of the jury
instructions.
9
Because the judgment orders do not reflect the mergers, this matter is remanded to the trial court
for correction of the judgment orders to accurately reflect the ordered mergers.
-18-
Analysis
404(b) Ruling
The Hearing
Prior to trial, the State filed a notice of its intent to elicit testimony at trial of “other
instances of sexual conduct” between the Defendant and the victim that occurred after the
indicted offenses and in a different county. The State asserted that this evidence would be
relevant to (1) establish the nature of the relationship between the Defendant and the victim;
(2) place certain other evidence into context; (3) “establish the [D]efendant’s opportunity,
motive, intent, and scheme or plan to sexually abuse” the victim; and (4) that it would
complete the factual background so as to “avoid a contextual or chronological void.” The
evidence for which the State was seeking a ruling of admissibility included e-mails between
the Defendant and the victim, letters written by the Defendant but purporting to be from other
authors, and an application for arrest warrant from juvenile court. The Defendant’s statement
to the police was not proffered by the State in this context.
The trial court held a hearing, and Detective Carrigan testified. Det. Carrigan
explained that they had been investigating a sexual relationship between the Defendant and
the victim that spanned approximately three years and that began in Davidson County and
then moved to Sumner County. Det. Carrigan described the sex acts occurring in both
counties as “the same types of sex acts.” Det. Carrigan acknowledged that, by the time they
became aware of the alleged offenses, the Defendant and the victim were no longer having
sex in Davidson County. Det. Carrigan also acknowledged that the e-mails and other
documents that he had been provided had been created after the alleged sex acts had moved
to Sumner County. According to Det. Carrigan, however, “some of those e-mails and other
stuff made reference to issues that had occurred in Davidson County.”
Det. Carrigan testified that the Defendant acknowledged his authorship of the
collected documents during the interview and also “acknowledged having made comments
in those e-mails and other items for the purpose of intimidating and coercing the victim into
an ongoing sexual relationship.”
Arguing for the admission of the e-mails and other documents, the prosecutor
explained,
The physical evidence collected is dated outside the time frame specifically of
our indictment, and it’s dated within the time frame of the acts that occurred
in Sumner County. However it’s very much of a similar nature and
-19-
corroborates what the child will be testifying to with regard to how [the
Defendant] manipulated and coerced [the victim] here in Davidson County.
The prosecutor also claimed that, because the victim did not come forward until after the
relationship had moved to Sumner County, “it would leave a conceptual void for the jury to
think that it just stopped here in Davidson County and then some months later the child
disclosed.”
The defense objected to the admissibility of the documents to the extent they
concerned “any activity in Sumner County.” Defense counsel argued that the State was
seeking to use this evidence “to show that [the Defendant] did this so you know he did that”
and to “have a pile-on effect,” all in direct contravention of Tennessee Rule of Evidence
404(b).
The trial court ruled as follows:
I do find that by clear and convincing proof these e-mails, the evidence that
has been introduced here occurred, the statements made by [the Defendant] in
terms of acknowledging sexual acts in Davidson County and Sumner County
occurred. I do think obviously there are material issues other than just piling
on . . . more than just trying to or at all trying to introduce propensity evidence.
I mean, it’s the same type allegations, the same type conduct that’s involved
here in these allegations of the indictment here in Davidson County. The
question is should the jury hear that at any point after September 30th, 2006,
did anything occur between [the Defendant] and the alleged victim in terms of
other sexual acts, other communications, other interplay at all in terms of
conduct between them. Obviously it did. So I don’t think the State is
prohibited from ending any inquiry with the alleged victim or the detectives at
9-30-06 because there obviously are material issues. Is this a violation of the
law? Was there an intentional knowing rape of the alleged victim or an
aggravated statutory rape? Those letters, e-mails that I’ve read could if the
jury believes them – and, again, there’s been no contradictory evidence here
offered today for me to consider – but if they believed that those came from
[the Defendant] to the alleged victim and back and forth, it in the Court’s
opinion would explain quite a bit possibly as to why the alleged victim didn’t
do something sooner or what were these threats about. It explains all of that
to much of a degree. So you have proof of motive of him to prevent the
alleged victim from disclosing intent. [sic] That would show, you know, why
would he do or say those things in the e-mails, [the Defendant], if he weren’t
concerned about the alleged victim reporting any incidents from Davidson
County. It explains all that if believed. Is it prejudicial? Sure. I wouldn’t
-20-
want the jury seeing some of those things in those e-mails if I was on trial. I
understand that. But they’re extremely probative for those reasons I’ve just
explained; motive, intent, explaining the ongoing relationship between the
defendant and the alleged victim. It has in the Court’s opinion admissions that
can be argued or viewed as relevant to the charges on trial for Davidson
County. It corroborates things that the State is alleging in the indictment and
mentions specifically an ongoing two and a half year sexual relationship. So
it’s extremely probative, and that probative value in the Court’s opinion is not
outweighed by the danger of not prejudice but unfair prejudice.
In sum, the trial court ruled admissible two letters written by the Defendant but purporting
to be from someone else; fifteen pieces of e-mail, some including multiple messages, from
the Defendant to the victim (and some of these including messages from the victim to the
Defendant); and an application for an arrest warrant in juvenile court prepared by the
Defendant. All of these items were created after the periods of time referenced in the
indictment.
On appeal, the Defendant argues that the trial court committed reversible error in
admitting this proof because it referred to conduct that was not on trial; it “shed no light on
any offenses alleged to have occurred during the indicted period”; and the admitted e-mails
and documents “could not be used to force, coerce, or [de]fraud [the victim] into engaging
in sexual activity prior to the[ir] construction.”
Analysis
Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
conformity with the character trait. It may, however, be admissible for other purposes.”
Tenn. R. Evid. 404(b). “Other purposes” include motive, intent, guilty knowledge, identity
of the defendant, absence of mistake or accident, a common scheme or plan, completion of
the story, opportunity, and preparation. State v. Berry, 141 S.W.3d 549, 582 (appx) (Tenn.
2004); see also State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000) (holding that “contextual
background evidence, which contains proof of other crimes, wrongs, or acts, may be offered
as an ‘other purpose’ under Rule 404(b) when exclusion of that evidence would create a
chronological or conceptual void in the presentation of the case and that void would likely
result in significant jury confusion concerning the material issues or evidence in the case”);
State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).
Even where the evidence is offered for “other purposes,” however, several conditions
must be satisfied for its admission:
-21-
(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 issue, 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). Where the trial court substantially complies with this procedure, we
will not overturn its decision to admit the evidence absent an abuse of discretion. See State
v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In this case, the trial court substantially
complied with Rule 404(b)’s procedure and ruled that “motive, intent, and to explain the
ongoing relationship between the Defendant and the victim” were the purposes for which the
evidence of his subsequent conduct was admissible.
Initially, we address the State’s argument that this evidence of other crimes, wrongs,
or acts was “apparently admitted” pursuant to the hearsay exception for admissions by a party
opponent. See Tenn. R. Evid. 803(1.2). The State asserts in its brief that “[i]t is questionable
whether Rule 404(b) may be invoked to exclude a defendant’s statements,” and alleges that
it “has been unable to locate a case that says it can.” To the contrary, this Court has stated
clearly and unequivocally that “[t]he fact that the prior bad acts evidence is contained within
a defendant’s statement to the police concerning the offense at trial does not relieve the trial
court of the duty to conduct a Rule 404(b) hearing to determine the admissibility of the
admissions.” State v. Michael Bailey, No. W2005-01815-CCA-R3-CD, 2007 WL 763212,
at *3 (Tenn. Crim. App. Mar. 13, 2007); State v. Debra Elaine Kirk, No. E2004-01263-CCA-
R3-CD, 2005 WL 2402921, at *11 (Tenn. Crim. App. Sept. 30, 2005) (same). See also, e.g.,
State v. Thacker, 164 S.W.3d 208, 239 (appx) (Tenn. 2005) (noting that, “while [other bad
acts] evidence usually does not come in the form of statements or confessions made by the
defendant, there exists no valid reason to make an exception to the requirements [of Rule
404(b)] for prior bad act evidence disclosed in a defendant’s confession”); State v. Cyntoia
Denise Brown, No. M2007-00427-CCA-R3-CD, 2009 WL 1038275, at *24 (Tenn. Crim.
App. Apr. 20, 2009) (reviewing admissibility of the defendant’s statements under Rule
404(b)). And, we point out that the text of the relevant hearsay exception provides that
admissions “are not excluded by the hearsay rule.” Tenn. R. Evid. 803 (emphasis added).
Admissions are subject to being excluded by other rules of evidence. State v. Lewis, 235
S.W.3d 136, 145 (Tenn. 2007) (recognizing that a defendant’s statements are admissible
pursuant to Rule 803(1.2) but are “subject to exclusion . . . by other rules of evidence”). For
-22-
instance, if an admission is irrelevant, it is subject to being excluded pursuant to Tennessee
Rule of Evidence 402. Rule 404(b) may also require the exclusion of a defendant’s
admission.
Furthermore, as set forth above, the trial court in this case conducted a 404(b) hearing
and admitted the e-mails etc. pursuant to that Rule. Because the trial court complied
substantially with the procedural requirements of 404(b), we may reverse its decision only
upon finding that the trial court abused its discretion in ruling the evidence admissible. See
Dubose, 953 S.W.2d at 652.
Turning to our review of the trial court’s ruling, it is helpful to distinguish between
the “crimes, wrongs, or acts” to which the admitted evidence refers. The e-mails from the
Defendant to the victim established two distinct types of “other crimes, wrongs, or acts”:
(1) the Defendant’s 2007 threats to the victim; and (2) sexual acts between the Defendant and
the victim other than those charged.10 We agree with the trial court that the evidence of the
Defendant’s threats to the victim was not offered to establish the Defendant’s character and
action in conformity therewith. Rather, the proof of the Defendant’s 2007 threats to the
victim was offered to demonstrate the Defendant’s underlying motives and intentions with
regard to his relationship with the victim. It also was offered to establish how the Defendant
had been able to conduct a sexual relationship with a teenaged victim who was otherwise in
a position to avoid or defend himself against the Defendant’s advances. Proof of the
Defendant’s threats delivered after the charged offenses was also relevant to explaining the
significant gap in time between the date of the last charged offense and the date on which the
victim finally reported the Defendant’s crimes to the police.
The more troubling aspect of this evidence is its numerous references to sexual
penetration between the Defendant and the victim that occurred outside the time frame
charged in the indictment. As this Court has previously observed, one danger of admitting
evidence of uncharged acts is that a jury will convict of charged behavior on the basis that,
if the defendant engaged in similar conduct at a different time, he must have committed the
crimes on trial. See, e.g., State v. Gilley, 297 S.W.3d 739, 757 (Tenn. Crim. App. 2008);
State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995); see also State v. James, 81
S.W.3d 751, 762 (Tenn. 2002) (recognizing that “[t]here can be little doubt that a trier of fact
will view an individual with a substantial criminal history as more likely to have committed
a crime than an individual with little or no past criminal history”). Indeed, our Supreme
Court explicitly has recognized that
10
The letters and application for arrest warrant were also evidence of threatening behavior that the
Defendant engaged in after the indicted offenses.
-23-
The general rule excluding evidence of other crimes is based on the
recognition that such evidence easily results in a jury improperly convicting a
defendant for his or her bad character or apparent propensity or disposition to
commit a crime regardless of the strength of the evidence concerning the
offense on trial. Such a potential particularly exists when the conduct or acts
are similar to the crimes on trial.
State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994) (citation omitted). See also Spicer v.
State, 12 S.W.3d 438, 448 (Tenn. 2000) (recognizing that “a real probability exists that the
jury could be overwhelmed by the sheer volume of prejudicial evidence and that the jury
could be tempted to convict based upon a defendant’s propensity to commit crimes rather
than convict solely upon evidence relating to the charged offense”).
A second danger is “that the admission of other-acts evidence poses a substantial risk
that a trier of fact may convict the accused for crimes other than those charged.” State v.
James, 81 S.W.3d 751, 758 (Tenn. 2002). And, as our Supreme Court has recently
emphasized, “[a]lthough ‘propensity evidence’ is relevant, the risk that a jury will convict
for crimes other than those charged – or that, uncertain of guilt, it will convict anyway
because a bad person deserves punishment – creates a prejudicial effect that outweighs
ordinary relevance.” State v. Rodriguez, 254 S.W.3d 361, 375 (Tenn. 2008) (quoting Old
Chief v. United States, 519 U.S. 172, 181 (1997)).
In this case, however, the vast majority of the Defendant’s messages to the victim
concern his feelings about the victim and his attempts to manipulate the victim into
continuing their sexual relationship. These writings assisted the jury to understand why the
victim – a teenager rather than a young child, and who did not live with his abuser – did not
take measures to stop or avoid the abuse. They also assisted the jury to understand that the
victim did not sit idly by for many months after the charged offenses stopped before turning
to authorities, but that the victim was still under the Defendant’s influence until mere days
before he reported the offenses.
Moreover, even if the trial court abused its discretion in admitting the e-mail
documents (or portions thereof) that referred to uncharged sexual acts, the Defendant is not
entitled to relief if the error is harmless. See Rodriguez, 254 S.W.3d at 371-72. It is the
Defendant’s burden to demonstrate that the error “more probably than not affected the
judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b); see
Rodriguez, 254 S.W.3d at 372. In determining the effect of a 404(b) evidentiary error, we
consider the entire record on appeal, and “[t]he greater the amount of evidence of guilt, the
heavier the burden on the defendant to demonstrate that a non-constitutional error involving
a substantial right more probably than not affected the outcome of the trial.” Rodriguez, 254
-24-
S.W.3d at 372. Further,
When an appellate court undertakes a harmless error analysis its
purpose is to ascertain the actual basis for the jury’s verdict. An inquiry into
harmless error does not turn upon the existence of sufficient evidence to affirm
a conviction or even a belief that the jury’s verdict is correct. To the contrary,
the crucial consideration is what impact the error may reasonably be taken to
have had on the jury’s decision-making. Where an error more probably than
not had a substantial and injurious impact on the jury’s decision-making, it is
not harmless.
Id. (citations omitted).
In this case, the jury heard not only the victim’s testimony about the charged acts of
sexual penetration between him and the Defendant, but also had before it the Defendant’s
lengthy statement to law enforcement in which he confessed to repeated sex acts with the
victim over the period of time charged in the indictment.11 The evidence against the
Defendant simply was overwhelming without regard to the Defendant’s e-mail messages to
the victim. We are confident that the evidence admitted pursuant to Rule 404(b) had, in the
final analysis, little impact on the jury’s decision-making. Therefore, we hold that any error
by the trial court with respect to the admissibility of the contested documents was harmless
and entitles the Defendant to no relief.
11
As to those portions of the Defendant’s statement that referred to unindicted sex acts, the trial
court delivered the following contemporaneous instruction to the jury:
[I]f from this . . . statement, you find that the defendant has committed any alleged crime or
crimes other than that for which he is on trial here in this jurisdiction or any mention about
any other jurisdiction, you may not consider that evidence to prove his disposition that he
committed the alleged crimes that he’s on trial for. This evidence, if you consider it at all,
may only be considered by you for the limited purpose of determining whether it provides
motive. That is, such evidence may be considered by you if it is evidence to show a motive
for the defendant for the commission of the offense[s] presently charged, or of defendant’s
intent. That is, such evidence may be considered by you if it tends to establish that the
defendant actually intended to commit the crime for which he is presently charged or to
explain the ongoing or past relationship between the defendant and the alleged crime [sic]
during the periods of time that you have heard about during the course of this trial.
So that evidence mentioning other alleged events, if considered by you for any
purpose, must not be considered for any purpose other than what I’ve specifically stated
here.
-25-
Election of Offenses and Double Jeopardy
The Defendant also raises challenges to the State’s election of offenses. First, the
Defendant complains that the State’s election “significantly and effectively alter[ed] the
indictment as to time, place, and act.” The Defendant grounds this argument on a
comparison between the indictment and the State’s alleged response to the Defendant’s
motion for bill of particulars. The record on appeal, however, does not contain the State’s
response. Although the Defendant attached to his brief a copy of a document titled “State’s
Response to Request for Bill of Particulars,” attachments to a brief are not part of the
appellate record. See Tenn. R. App. P. 24(a); Willis v. Tenn. Dep’t of Corr., 113 S.W.3d
706, 709 n.2 (Tenn. 2003); State v. Price, 46 S.W.3d 785, 812 (Tenn. Crim. App. 2000).
Tennessee Rule of Appellate Procedure 24 provides that it is the appellant’s duty to
“have prepared a transcript of such part of the evidence or proceedings as is necessary to
convey a fair, accurate and complete account of what transpired with respect to those issues
that are the bases of appeal.” Tenn. R. App. P. 24(b). When the record does not contain the
information necessary for our review, we presume that the trial court’s ruling on the issue is
correct. See State v. Griffis, 964 S.W.2d 577, 592-93 (Tenn. Crim. App. 1997). We,
nevertheless, have compared the State’s election of offenses with the indictment, both of
which are in the record on appeal, and discern no significant alteration as to time, place, or
act. While we note that the State’s election did not refer to specific dates other than the
Computer Incident, and, perhaps, could be problematic, the Defendant has failed to
demonstrate that he was thereby prejudiced because the record contains neither the closing
arguments nor the trial court’s charge to the jury, either of which may have clarified this
omission. The Defendant is not entitled to relief on this issue.
Second, the Defendant asserts that
[t]he Election of Offenses served to expose the Defendant to being tried
and/or sentenced twice for the same offenses listed within the Election, as well
as expose him to risk of being tried in another County for the same offenses
alleged in this cause. The counts lack particularity and specificity and appear
to be patched together.
This assertion attempts to raise two issues: election of offenses and double jeopardy. The
Defendant has waived these issues by failing to cite to any legal authority whatsoever. Tenn.
Ct. Crim. App. R. 10(b); see also State v. Watson, 227 S.W.3d 622, 648 (Tenn. Crim. App.
2006); State v. McCary, 119 S.W.3d 226, 242-3 (Tenn. Crim. App. 2003); State v. Chance,
778 S.W.2d 457, 462 (Tenn. Crim. App. 1989). We also fail to understand how the State’s
election of offenses regarding crimes committed in Davidson County could expose the
-26-
Defendant to prosecution in another county for the same crimes. Pursuant to article I, section
9 of the Tennessee Constitution, an accused must be tried in the county in which the crime
was committed. See State v. Young, 196 S.W.3d 85, 101 (Tenn. 2006); see also Tenn. R.
Crim. P. 18(a). The Defendant has not demonstrated that he is entitled to relief on these
issues.
Finally, the Defendant contends that “the Prosecutor erred in making the oral and anal
penetration two separate counts, even though the testimony adduced at trial shows that the
oral sex was used simply to help facilitate [the victim] getting an erection.” Again, the
Defendant has failed to cite to any legal authority. See Tenn. Ct. Crim. App. R. 10(b).
Moreover, our Supreme Court has made clear that different types of sexual penetration, even
if committed during a single episode between perpetrator and victim, are separate offenses
for double jeopardy purposes. See State v. Phillips, 924 S.W.2d 662, 664-65 (Tenn. 1996).
The Defendant is entitled to no relief on this issue.
Sufficiency of the Evidence
The Defendant contends that the evidence is not sufficient to sustain Counts 1 and 3
through 26 of the indictment. The State disagrees.
Our standard of review regarding sufficiency of the evidence 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). See also Tenn. R. App. P. 13(e). After a jury finds
a defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does
not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts” in the testimony and
all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation
omitted). This standard of review applies to guilty verdicts based upon direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State
v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
As charged in Count 1, the Defendant was convicted of rape consisting of the
“unlawful sexual penetration . . . of the defendant by a victim” where the penetration “is
accomplished without the consent of the victim and the defendant knows or has reason to
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know at the time of the penetration that the victim did not consent.” Tenn. Code Ann. § 39-
13-503(a)(2) (2003). Sexual penetration is statutorily defined as including anal intercourse.
Id. § 39-13-501(7) (2003). At trial, the victim testified that his first episode of sexual contact
with the Defendant began while he was asleep. He awoke in the Defendant’s spare bedroom
to find the Defendant on top of him, facing away, and “grinding back and forth” while the
victim’s “privates were out” and “[i]n [the Defendant’s] anal region.” The victim described
the contact as “[s]kin to skin.” The Defendant argues to this Court that the victim’s
testimony does not establish sexual penetration. However, when asked by the police about
his initial sexual encounter with the victim, the Defendant described their contact as “his
penis in me.” (Emphasis added). He also admitted to Det. Carrigan that his initial sexual
contact with the victim included anal intercourse. Together, this proof is sufficient to
establish sexual penetration. The victim’s testimony that he was asleep when the Defendant
began his sexual assault satisfies the element that the Defendant had reason to know that the
victim did not consent. In sum, the proof is sufficient to establish the crime of rape.
Therefore, we affirm the Defendant’s conviction of rape as charged in Count 1 of the
indictment.
The Defendant does not contest the sufficiency of the evidence supporting his
conviction of rape accomplished without the victim’s consent as charged in Count 2 of the
indictment, which referred to the second episode of anal sex between the Defendant and the
victim. The victim’s testimony was specific as to this incident and is sufficient to support
the conviction. We therefore affirm the Defendant’s conviction of rape as charged in Count
2 of the indictment.
As to his convictions for rape by force or coercion and rape by fraud, the Defendant
argues that “[t]here was no proof that the Defendant used force, coercion, or fraud to
unlawfully sexually penetrate [the victim] in Davidson County, Tennessee.” As to Counts
6 and 16, the Defendant also contends that the State failed to prove venue. The Defendant
makes no particular argument as to the sufficiency of the evidence supporting his remaining
convictions.
In the crime of rape by force or coercion, coercion is statutorily defined as the “threat
of kidnapping, extortion, force or violence to be performed immediately or in the future.”
Tenn. Code Ann. § 39-13-501(1) (Supp. 2005, 2006). This Court has held that this definition
is satisfied when a defendant threatens to expose a victim’s activities that could result in
criminal prosecution. See State v. McKnight, 900 S.W.2d 36, 50 (Tenn. Crim. App. 1994).
In this case, the victim testified that, after the Computer Incident, the Defendant told him that
he “could go to jail no less than seven years” for looking at pornography on a state computer.
The victim thereafter resumed his sexual relationship with the Defendant the following
school year, explaining that they had sex every Wednesday after school. The proof
-28-
established that the Defendant threatened the victim with the Computer Incident repeatedly
during the course of the sexual relationship. According to the victim, he understood the
Defendant as making these statements in order to have the victim cooperate with their sexual
relationship. The Defendant continued to threaten him every time the victim tried to end
their sexual relationship. We hold that these threats satisfy the definition of “coercion” as
used in the rape statute. Moreover, at the time the victim began working at Academy Sports,
the Defendant had threatened to expose the victim’s homosexual activities with him. This
formed an additional factual basis for a finding of coercion as to the offenses committed
during that time frame. See McKnight, 900 S.W.2d at 50; State v. Steven Craig Fults, No.
M2004-02092-CCA-R3-CD, 2006 WL 1896356, at *12 (Tenn. Crim. App. 2006).
Rape by fraud is committed when the accused accomplishes sexual penetration with
the victim by fraud. Tenn. Code Ann. § 39-13-503(a)(4) (Supp. 2005, 2006). Fraud is
defined for purposes of our criminal code as follows: “‘Fraud’ means as used in normal
parlance and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge,
and shall be broadly construed to accomplish the purposes of this title.” Id. § 39-11-
106(a)(13) (2006). This Court has held that a person commits rape by fraud
when he or she engages in sexual penetration that is accomplished by fraud.
The fraudulent conduct could have included trickery, subterfuge, or some other
misrepresentation by the [accused] that gave the victim[] a false impression
and allowed or aided [the accused] in the accomplishment of the sexual
penetration.
State v. Raymond Mitchell, No. M1996-00008-CCA-R3-CD, 1999 WL 559930, at *6 (Tenn.
Crim. App. July 30, 1999). This Court also has recognized that “[t]he fraud may go directly
to the sexual penetration itself, or may relate to the inducement of the sexual act.” Id. (citing
Tenn. Code Ann. § 39-11-106(a)(9)(A) (1991); State v. Tizard, 897 S.W.2d 732, 741-42
(Tenn. Crim. App. 1994)). This Court recently affirmed convictions of rape by fraud where
the defendant told the fourteen-year-old victim “that she needed to have sex with him to
grant him sufficient [magical] power to heal her mother and [sister] after they had surgery
[and that] otherwise they would be crippled or die” and also promised that he could give the
victim “magic powers through sex.” State v. Marcos Enrique, Sr., No. M2009-02319-CCA-
R3-CD, 2011 WL 4529643, at *16 (Tenn. Crim. App. Sept. 29, 2011).
In this case, the Defendant repeatedly threatened the victim with prosecution and jail
because of the Computer Incident. As set forth above, the victim testified that the Defendant
told him that he “could go to jail no less than seven years” for the Computer Incident. Det.
Carrigan testified that there is no criminal offense for viewing pornography on a state
computer. We have confirmed that, based upon state law, the victim – who was a minor at
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the time – was not at risk of being imprisoned for seven years or more because he looked at
pornography on the Defendant’s work computer. Accordingly, we hold that the Defendant’s
threatening the victim with jail for the Computer Incident was fraudulent.
Aggravated statutory rape is defined as “the unlawful sexual penetration of a victim
by the defendant, or of the defendant by the victim when the victim is at least thirteen (13)
but less than eighteen (18) years of age and the defendant is at least ten (10) years older than
the victim.” Tenn. Code Ann. § 39-12-506(c) (2006). In this case, the proof established that
the victim was sixteen years old at the time of the aggravated statutory rapes and the
Defendant was in his forties.
Turning to the Defendant’s specific convictions, the jury convicted the Defendant of
rape by force or coercion on Count 3 and of rape by fraud on Count 13. According to the
State’s election, both of these Counts referred to the first instance of the victim penetrating
the Defendant’s anus with his penis at the Defendant’s home after the Computer Incident.
The victim testified that, after the Computer Incident, he resumed having sex with the
Defendant. The victim described these encounters as occurring on Wednesdays during his
sophomore year and taking place at the Defendant’s residence. The Defendant’s statement
provided similar details. Additionally, this episode was alleged to have occurred after the
Computer Incident, upon which the Defendant’s threats were based. The Defendant’s threats
to have the victim jailed constituted coercion and were also fraudulent because the alleged
basis for the threat – the victim’s accessing pornography on the Defendant’s computer – was
not a felony offense. We therefore hold that the proof is sufficient to support the Defendant’s
convictions of Count 3 and 13.
The jury also convicted the Defendant of rape by force or coercion on Count 4 and of
rape by fraud on Count 14. Both of these Counts referred to, according to the State’s
election, the victim penetrating the Defendant’s anus with his penis after the Computer
Incident, occurring at the Defendant’s home, and “after the [D]efendant performed oral sex
to cause the victim to have an erection.” In addition to the proof set forth above, the proof
in support of this offense consisted of the victim’s testimony that the Defendant performed
oral sex on him between five and ten times, and the Defendant’s admission in his statement
that he performed oral sex twice on the victim while they were at the Defendant’s house.
Therefore, the proof is sufficient to support each of these convictions.
We are constrained to point out that the State’s election as to Counts 4 and 14, insofar
as the incomplete record before us reflects, was ineffective to narrow the jury’s consideration
to a single incident of anal sex because the proof established up to ten incidents of
preliminary oral sex. As our Supreme Court has made clear, “when the evidence indicates
[that] the defendant has committed multiple offenses against a victim, the prosecution must
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elect the particular offense as charged in the indictment for which the conviction is sought.”
State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999) (emphasis added). This requirement is
founded in part upon the Tennessee Constitution. State v. Kendrick, 38 S.W.3d 566, 568
(Tenn. 2001). Additionally, our Supreme Court has emphasized that
there should be no question that the unanimity of twelve jurors is required in
criminal cases under our state constitution. A defendant’s right to a unanimous
jury before conviction requires the trial court to take precautions to ensure that
the jury deliberates over the particular charged offenses, instead of creating a
“patchwork verdict” based on different offenses in evidence.
State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993) (quotation marks and citation omitted).
Because the victim testified that the Defendant performed oral sex on him between
five and ten times, it is possible that the jurors could have been individually considering as
many as ten different offenses for Counts 4 and 14. It is also possible, however, that the
State eliminated this risk during its closing argument. This Court has recognized that a State
may effectively elect its offenses via closing argument. See, e.g., State v. Warren Curnutt,
No. M2006-00552-CCA-R3-CD, 2007 WL 1482390, at *6 (Tenn. Crim. App. May 22,
2007); State v. William Dearry, No. 03C01-9612-CC-00462, 1998 WL 47946, at *13 (Tenn.
Crim. App. Feb. 6, 1998). Because the Defendant has failed to include the closing arguments
in the record on appeal, we presume that the trial court’s actions were correct in this regard.
See Griffis, 964 S.W.2d at 592-93.
Moreover, the record is inadequate to allow our review under the plain error doctrine.
We may grant relief for plain error only where five prerequisites are satisfied: “(1) the
record clearly establishes what occurred in the trial court, (2) a clear and unequivocal rule
of law was breached, (3) a substantial right of the accused was adversely affected, (4) the
accused did not waive the issue for tactical reasons, and (5) consideration of the error is
necessary to do substantial justice.” State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010) (quoting
State v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008)) (emphasis added). Additionally, “[i]t is
the defendant’s burden to convince this Court that plain error exists, and we need not
consider all five factors ‘when it is clear from the record that at least one of them cannot be
satisfied.’” Id. (quoting State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). In this case,
the record on appeal does not clearly establish what occurred in the trial court because the
transcript of some of the relevant proceedings is not before us.12 Accordingly, the first of the
12
The record on appeal in this case was supplemented by the Defendant twice, the first time on May
3, 2011, and the second time on December 27, 2011 – after oral argument. In spite of these
supplementations, the record remains incomplete.
-31-
five plain error prerequisites is not satisfied, and the Defendant therefore is not entitled to
relief under plain error for any inadequacy in the State’s election as to the offense for which
it was seeking a conviction in Counts 4 and 14.
The jury also convicted the Defendant of rape by force or coercion on Count 5 and of
rape by fraud on Count 15. According to the State’s election of offenses, the State described
this crime as “the victim penetrated the defendant’s anus with his penis on a date after the
[Computer] [I]ncident” at the Defendant’s home, adding that the counts referred to “the first
incident of sexual contact occurring on a Wednesday before church during the victim’s
Sophomore year.” The proof in support of this offense consisted of the victim’s testimony
that he was at the Defendant’s house “pretty much every Wednesday all of [his] sophomore
year” and that he and the Defendant “would have sex every Wednesday at [the Defendant’s]
house.” This episode was alleged to have occurred after the Computer Incident, and the
Defendant’s threats to have the victim jailed constituted coercion and were also fraudulent
because the alleged basis for the threat – the victim’s accessing pornography on the
Defendant’s computer – was not a felony offense. We hold that this proof is sufficient to
support the Defendant’s convictions of Counts 5 and 15. We recognize that this election
appears to refer to the same incident elected for Counts 3 and 13 and that a single instance
of rape cannot be elected to support multiple (independent) charges of rape because
principles of double jeopardy prohibit the imposition of multiple punishments for a single
offense. See State v. Watkins, __ S.W.3d __, __, 2012 WL 758912, at *7, 12 (Tenn. 2012).
As with the election for Counts 4 and 14, however, the State may have cured this problem
during its closing argument. For the same reasons set forth above, the Defendant is not
entitled to relief for any inadequacy in the State’s election as to the offense for which it was
seeking a conviction on Counts 5 and 15.
The jury also convicted the Defendant of rape by force or coercion on Count 6 and of
rape by fraud on Count 16. The Defendant claims that the State failed to prove venue as to
these two counts. Both of these counts referred to, according to the State’s election, “an
incident of sexual contact [consisting of the victim penetrating the Defendant’s anus with the
victim’s penis] occurring under a bridge near the victim’s home” after the Computer
Incident. The Defendant admitted to the police that the victim placed his penis in him while
they were near a bridge near the victim’s house. The letter purporting to be from Dr. Pinnock
was addressed to the victim at his house on North Summerfield Drive in Madison,
Tennessee. We take judicial notice that Madison, Tennessee, is located in Davidson County.
Venue need be established by only a preponderance of the evidence. Tenn. Code Ann. § 39-
11-201(e) (2006); Young, 196 S.W.3d at 101. We hold that the evidence is sufficient to
establish venue as to these convictions. We also hold that the proof is sufficient to establish
that the Defendant accomplished sexual penetration by coercion, as charged in Count 6, and
by fraud, as charged in Count 16. This episode was alleged to have occurred after the
-32-
Computer Incident, and the Defendant’s threats to have the victim jailed constituted coercion
and were also fraudulent because the alleged basis for the threat – the victim’s accessing
pornography on the Defendant’s computer – was not a felony offense. Therefore, we affirm
the Defendant’s convictions on Counts 6 and 16 of the indictment.
The jury also convicted the Defendant of rape by force or coercion on Count 7 and
rape by fraud on Count 17. In its election of offenses, the State described this crime as the
victim penetrating the Defendant’s anus with his penis at the Defendant’s home and which
occurred “during the summer prior [to] the victim’s junior year in high school.” According
to the victim, his sexual relationship with the Defendant continued into the summer following
his sophomore year. This episode was alleged to have occurred after the Computer Incident,
and the Defendant’s threats to have the victim jailed constituted coercion and were also
fraudulent because the alleged basis for the threat – the victim’s accessing pornography on
the Defendant’s computer – was not a felony offense. We hold that the proof is therefore
sufficient to support the Defendant’s convictions of Count 7 and Count 17. For the reasons
set forth above, we must presume that the trial court’s ruling on the State’s election of these
offenses was correct.
The jury also convicted the Defendant of rape by force or coercion on Count 8 and
rape by fraud on Count 18. The offense elected for these counts was “the first incident of the
defendant performing oral sex on the victim prior to their engaging in anal sex.” And, again,
this offense was alleged to have occurred after the Computer Incident and at the Defendant’s
home. The Defendant admitted to having performed oral sex on the victim. The victim also
testified that the Defendant performed oral sex on him. Sexual penetration sufficient to
constitute rape includes fellatio. Tenn. Code Ann. §39-13-501(7) (Supp. 2005, 2006). For
the same reasons set forth above, the proof is sufficient to establish that the Defendant
performed fellatio on the victim at the time and place alleged. Also, for the same reasons set
forth above, the proof is sufficient to establish that the Defendant committed the fellatio by
coercion and fraud. Accordingly, we affirm the Defendant’s convictions on Counts 8 and
18 of the indictment. We also hold that the State’s election as to this offense was effective
because it referred to the single “first” episode of oral sex.
The jury also convicted the Defendant of rape by force or coercion on Count 9 and
rape by fraud on Count 19. According to the State’s election of offenses, these counts
referred to the “last incident” of the Defendant performing oral sex on the victim at the
Defendant’s home and after the Computer Incident. As set forth above, the victim testified
about the Defendant performing oral sex on him and the Defendant admitted to doing same.
We hold that the proof is sufficient to support these convictions. We also hold that the
State’s election as to this offense was effective because it referred to the single “last” episode
of oral sex.
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The jury also convicted the Defendant of rape by force or coercion on Count 10, rape
by fraud on Count 20, and aggravated statutory rape on Count 24. The State’s election of
offenses described this incident as anal sex at the Defendant’s home “on a date in the late
summer or early fall of 2006 prior to the victim becoming employed at Academy Sports” and
as “the first incident of sexual contact after the victim received the forged letter from Dr.
P[i]nnock.” The proof established that the victim was employed by Academy Sports shortly
before he turned seventeen years old in October 2006. The letter purportedly from Dr.
Pinnock was dated June 8, 2006. This description of the alleged crime therefore narrows the
time frame to several weeks and specifies the incident further as the “first” after the victim
got the forged letter. The victim testified generally that his Wednesday sexual encounters
with the Defendant occurred during his sophomore year and the following summer. We hold
that the proof is sufficient to support these convictions and that the State’s election was
adequate.
The jury also convicted the Defendant of rape by force or coercion on Count 11, rape
by fraud on Count 21, and aggravated statutory rape on Count 25. In its election of offenses,
the State described this offense as anal sex at the Defendant’s home “on a date in the late
summer, early fall, 2006 prior to the victim becoming employed at Academy Sports” and,
further, as occurring “a short time prior to the victim’s 16th birthday. This is the last time
they had sex at this location.” The proof established that (1) the victim turned sixteen in
October 2005 and (2) the victim became employed by Academy Sports shortly before he
turned seventeen in October 2006. Thus, the election referred to a single event as occurring
in two different years. However, the election clarified that the episode referred to was the
“last time they had sex at this location.” Moreover, as with the election for Counts 4 and 14
and Counts 5 and 15, the State may have further clarified the incident during its closing
argument. We hold that the proof is sufficient to support these convictions and, further, that,
for the same reasons set forth above, the Defendant is not entitled to relief for any inadequacy
in the State’s election as to these offenses. Therefore, we affirm the Defendant’s convictions
on Counts 11, 21, and 25.
Finally, the jury convicted the Defendant of rape by force or coercion on Count 12,
rape by fraud on Count 22, and aggravated statutory rape on Count 26. In its election, the
State described this incident as “the victim penetrated the defendant’s anus with his penis on
a date in early fall of 2006 in the unisex bathroom at Academy Sports[.]” The victim testified
that he and the Defendant had sex at this location on two occasions. The election does not
specify which occasion the State was electing, but, again, the State may have corrected this
problem during its closing argument. We hold that the proof is sufficient to support these
convictions and that the Defendant is not entitled to relief on his argument that the State’s
election as to these offenses was inadequate. Accordingly, we affirm the Defendant’s
convictions on Counts 12, 22, and 26.
-34-
The Defendant makes no argument and cites to no authority regarding the sufficiency
of the evidence as to Count 23, upon which the Defendant was convicted of forgery. We,
nevertheless, hold that the evidence is sufficient to support this conviction. “A person
commits an offense who forges a writing with intent to defraud or harm another.” Tenn.
Code Ann. § 39-14-114(a) (2006). To forge a writing means to “[a]lter, make, complete,
execute or authenticate any writing so that it purports to . . . [b]e the act of another who did
not authorize that act.” Id. § 39-14-114(b)(1)(A)(I). The proof at trial established that the
Defendant forged a letter purporting to be from Dr. Pinnock. The proof also established that
the Defendant created the letter with the intent of enabling him to engage in illegal sexual
penetration with the minor victim, conduct harmful to the victim. Therefore, we affirm the
Defendant’s conviction of forgery.
Sentencing
The Defendant complains that his sentences are excessive because (1) the trial court
gave “inordinate weight” to enhancement factors and (2) the enhancement factors applied by
the court are not supported by the evidence. The Defendant also contends that his sentences
on Counts 4, 5, and 8 violate double jeopardy because “[t]he evidence adduced at trial is
insufficient to conclude that counts 4, 5, and 8 are separate incidents.” The Defendant is not
entitled to relief on this latter issue because we have determined, as set forth above, that the
evidence is sufficient to support the Defendant’s convictions on Counts 4, 5 and 8.
We also note that the record on appeal contains a transcript of the witnesses’
testimony at the sentencing hearing but does not contain any of the exhibits thereto, including
the presentence report and the victim’s written statement.13 As set forth above, it is the
appellant’s responsibility to compile an adequate record that allows meaningful review on
appeal.
Proof and Findings from Sentencing Hearing
Mark Madison, one of the Defendant’s younger brothers, testified that the Defendant
“is a caring human being who has a great, great compassion for people.” He described the
Defendant as “totally remorseful” about the events that led to his convictions. According to
Mr. Madison, the Defendant “acknowledged that he should have never did what he did” with
respect to his relationship with the victim. Mr. Madison testified that the Defendant’s family
“stands willing to stand behind him as he takes responsibility” for his crimes.
13
After oral argument, this Court allowed the Defendant to supplement the record with additional
material from the sentencing proceedings. The record, nevertheless, remains incomplete.
-35-
The victim testified that he had suffered emotionally from the Defendant’s crimes and
that he had enrolled in counseling to deal with his emotional problems. On cross-
examination, the victim acknowledged that he had been in treatment with a psychologist prior
to meeting the Defendant. He explained that this earlier counseling was the result of his
“making bad grades in middle school.”
Bobby Denegal testified that he was the Defendant’s uncle. Mr. Denegal accused the
Defendant of having forged a signature to a family will. Mr. Denegal sought a warrant
against the Defendant for “[f]raudulently having the will probated” but admitted that he had
been unsuccessful in obtaining the warrant. He also testified that, in conjunction with the
dispute over the will, the Defendant had threatened to have him arrested for raping one of the
Defendant’s sisters. Mr. Denegal testified that it had been his experience that the Defendant
is “an evil, conniving individual that ha[s] swindled [Mr. Denegal’s mother] and others out
of their life savings.”
Reverend Menjou C. Miller, Sr., testified that he met the Defendant through the
Sulphur Springs AME Church several years previously. Rev. Miller testified that, during the
time that he had known the Defendant, he had “presented himself . . . as a perfect
gentleman.”
The Defendant gave an allocution during which he acknowledged that he “should
have behaved as an adult,” that, as the adult, he was “responsible,” that he was “deeply sorry”
and “regret[ted] any harm or pain [he had] caused the victim, the victim’s family, [his]
family, and [his] church.” The Defendant also denied the allegations levied against him by
Mr. Denegal. He emphasized that he engaged in no inappropriate conduct during the twenty
months he was on bail awaiting trial. He asked for the opportunity to be rehabilitated and
to “earn back [his] self-respect.” He stressed that he was “not a predator.”
After the sentencing hearing, the trial court sentenced the Defendant as a standard
Range I offender. The trial court sentenced the Defendant to the minimum term of eight
years on each of his rape convictions14 on Counts 1 and 2.15 The trial court sentenced the
14
Rape is a Class B felony. Tenn. Code Ann. § 39-13-503(b) (2003, 2006). The sentencing range
for Range I offenders convicted of Class B felonies is eight to twelve years. Id. § 40-35-112(a)(2) (2003,
2006).
15
The trial court explained its decision to impose the minimum sentence on Counts 1 and 2 as
follows:
Although not addressed at the sentencing hearing, the Court notes that counts one
and two occurred prior to the amendment by 2005 Tenn. Pub. Act Chapter 353 Section 18
which made enhancement factors advisory for sentencing purposes on crimes occurring on
(continued...)
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Defendant to the midrange term of eleven years on each of his remaining rape convictions,
and to the maximum four year term on each of the aggravated statutory rape convictions,16
relying on enhancing factors for “particularly great” injuries suffered by the victim and for
the Defendant’s abuse of a position of trust. See Tenn. Code Ann. § 40-35-114(6), (14)
(Supp. 2005, 2006). The trial court sentenced the Defendant to the maximum sentence of
two years on the forgery conviction, a Class E felony,17 relying upon the same enhancement
factors. The trial court then merged Counts 3 through 12 (rape by force or coercion) with
Counts 13 through 22 (rape by fraud), respectively; merged Count 24 (aggravated statutory
rape) with Counts 10 and 20; merged Count 25 (aggravated statutory rape) with Counts 11
and 21; and merged Count 26 (aggravated statutory rape) with Counts 12 and 22.
Initially, we note that the judgment orders on the Defendant’s convictions do not
reflect the mergers ordered by the trial court. We therefore remand this matter to the trial
court for correction of the judgment orders to reflect the ordered mergers.
As to manner of service, the trial court found that “confinement is necessary in this
case to avoid depreciating the seriousness of the offenses and [to] provide deterrence to the
defendant and other individuals.” The court found further that the Defendant
continues to minimize his role in the events and maintains in his evaluation
that “he was coerced into [the sexual incidents with the victim] by the boy.”
He claims the teenage victim threatened him if he were to stop the relationship.
The [D]efendant continued to sexually abuse the victim in Sumner County
after the incidents in this indictment and threatened the victim and his mother
with jail (a type of extortion). The defendant also made veiled threats against
the victim’s life (e.g., “you have put yourself in danger. . . . your last spring
break, . . . your time is running out.”) The defendant also obtained a forged
arrest warrant against the victim. Having heard the trial testimony, the Court
does not find this version of events credible and finds the [D]efendant is not
amenable to treatment or probation.
15
(...continued)
or after June 7, 2005. There was no proof presented to the jury for enhancement purposes
of these two counts, therefore the Court must place the sentence at the minimum in the
range.
16
Aggravated statutory rape is a Class D felony. Tenn. Code Ann. § 39-13-506(d)(3) (2006). The
Range I sentencing range for Class D felonies is two to four years. Id. § 40-35-112(a)(4).
17
See Tenn. Code Ann. § 39-13-114(c).
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As to whether the Defendant should serve his sentences concurrently or consecutively,
the trial court first referred to Tennessee Code Annotated section 40-35-115(b)(5), which
allows for the imposition of consecutive sentences when
[t]he 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 . . . , 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[.]
Tenn. Code Ann. § 40-35-115(b)(5) (2006). In view of this statutory provision, the trial court
found as follows:
[The sexual abuse] occurred over a three year time span with acts of abuse
occurring weekly which included at least twenty occasions of anal sex
beginning when the victim was fourteen years old and the defendant was forty-
six years old. The Court finds the nature and scope of the offenses, which
included anal intercourse of the defendant and oral penetration of the victim
and the viewing of pornography with the minor victim 18 further demonstrates
the aggravated nature of the offenses. Additionally, the Court finds that the
extent of mental damage to this victim was great as the evidence indicated the
victim suffered extensive emotional trauma necessitating counseling and
continues to suffer confusion about his own sexuality because of the abuse at
the hands of the defendant.
(Footnote added). In light of its findings, the trial court ordered the eleven-year sentence
imposed on Count 4 to be served consecutively to the eleven-year sentence imposed on
Count 5, the eleven-year sentence imposed on Count 5 to be served consecutively to the
eleven-year sentence imposed on Count 8, and the eleven-year sentence imposed on Count
8 to be served consecutively to the two-year sentence imposed on Count 23, for a total
effective sentence of thirty-five years.19
18
The proof at trial included references to the Defendant and the victim viewing pornography
together.
19
The sentences imposed on the rape convictions must be served at 100%. See Tenn. Code Ann.
§ 40-35-501(i)(1), (2)(G), (3) (2006).
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Analysis
In making its sentencing determination, the trial court must consider:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.
Tenn. Code Ann. § 40-35-210(b) (2006). The trial judge should also consider “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5)
(2006).
Where the record affirmatively shows that the trial court considered the statutory
sentencing principles and all relevant facts and circumstances, our review is de novo with a
presumption that the trial court’s determinations are correct. See Tenn. Code Ann. § 40-35-
401(d) (2006); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). And, where the trial court
gave “due consideration and proper weight to the factors and principles which are relevant
to sentencing under the Act, and [the record establishes] that the trial court’s findings of fact
. . . are adequately supported in the record, then we may not disturb the sentence even if we
would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991). When the record does not demonstrate that the trial court gave due
consideration to the requisite criteria, our review of the sentence is purely de novo. Ashby,
823 S.W.2d at 169. The appealing party, here the Defendant, bears the burden of
establishing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n
Cmts; see also Ashby, 823 S.W.2d at 169. The record in this case establishes that the trial
court considered the statutory sentencing principles and all relevant facts and circumstances
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and that its findings are supported by the proof. Therefore, our review is de novo with a
presumption that the trial court’s determinations are correct.
As to the substantive aspects of the trial court’s sentencing decisions, we first consider
the trial court’s application of enhancement factors. We emphasize that, as to offenses
committed after June 6, 2005, enhancement factors are advisory only and that, while a trial
court is required to consider them, the trial court is not bound by them. Tenn. Code Ann. §
40-35-114 (2006). When the proof supports application of an enhancement factor, the weight
to be afforded the factor is left to the trial court’s discretion. See State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008); State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD,
2011 WL 900053, at *10 (Tenn. Crim. App. Mar. 16, 2011).
With respect to enhancement factor (6), applicable where the victim’s personal
injuries are “particularly great,” Tenn. Code Ann. § 40-35-114(6), we reiterate that the record
before us is incomplete as to the trial court’s assessment that the victim suffered particularly
great injuries. The transcript of the portion of the sentencing hearing conducted on October
1, 2009, reflects that the victim submitted a written statement. That statement is not in the
record.20 Nor is the presentence report or any of the other materials admitted as exhibits to
the sentencing hearing. It is the appellant’s responsibility to compile the record on appeal
that will allow this Court to address the issues raised. Tenn. R. App. P. 24(b). When the
necessary materials are not included in the record on appeal, we presume the trial court’s
ruling was correct. Griffis, 964 S.W.2d at 592-93. Therefore, the Defendant is entitled to
no relief as to his claim that the trial court erred in applying enhancement factor 6.
We next consider enhancement factor 14, which may be applied when the defendant
abuses a position of trust. According to our Supreme Court, when the defendant is an adult
and the victim is a minor,
application of [this] factor requires a finding, first, that defendant occupied a
position of trust, either public or private. The position of parent, step-parent,
babysitter, teacher, coach are but a few obvious examples. The determination
of the existence of a position of trust does not depend on the length or
formality of the relationship, but upon the nature of the relationship. Thus, the
court should look to see whether the offender formally or informally stood in
a relationship to the victim that promoted confidence, reliability, or faith. If
20
See footnotes 12 and 13, supra.
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the evidence supports that finding, then the court must determine whether the
position occupied was abused by the commission of the offense.
State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).
We hold that the proof supports the trial court’s application of this factor. The victim
testified that he met the Defendant at the church that the victim had been attending his
“whole life.” The Defendant was active in the church and became a friend of the family.
The victim testified that he considered the Defendant to be his mentor. They spent
considerable time together, including attending the Defendant’s family functions together.
The victim’s mother trusted the Defendant sufficiently to suggest the victim spend the night
with him when she had to travel out of town for her work. The victim testified that he
“believed everything that [the Defendant] told [him] because . . . everything he told [him]
was always the truth. So [he] was lead [sic] on [by] a pretty good and complete person.”
This proof established that the Defendant stood in a position of private trust vis-a-vis the
victim.
Relying on these two enhancement factors, the trial court imposed eleven-year terms,
one year short of the maximum, for the Defendant’s convictions of rape by force or coercion
and rape by fraud. The record reflects no error by the trial court in imposing these terms.
Similarly, we find no error in the trial court’s imposition of the maximum four year term on
each of the Defendant’s three convictions of aggravated statutory rape, or in its imposition
of the maximum two year term on the Defendant’s conviction of forgery on Count 23.
Accordingly, we affirm the length of the sentences imposed on the Defendant’s convictions
on Counts 3 through 26. We also affirm the Defendant’s sentences on Counts 1 and 2, for
which the trial court imposed the minimum term of eight years.
The Defendant raises no specific argument as to the trial court’s imposition of
consecutive sentences, and we see no issue based upon our review. Accordingly, we hold
that the trial court did not err in ordering that the Defendant serve some of his sentences
consecutively.
Conclusion
We affirm the Defendant’s convictions and sentences. This matter is remanded to the
trial court for correction of the judgment orders as set forth above.
_________________________________
JEFFREY S. BIVINS, JUDGE
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