IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 18, 2006 Session
STATE OF TENNESSEE v. ALBERT R. NEESE
Direct Appeal from the Criminal Court for Davidson County
No. 2003-C-2017 Monte Watkins, Judge
No. M2005-00752-CCA-R3-CD - Filed December 15, 2006
The defendant, Albert R. Neese, appeals from jury convictions of two counts of aggravated sexual
battery and two counts of rape of a child. The defendant also appeals the imposition of consecutive
sentences which totaled twenty-eight years. The issues on appeal include challenges to the
admissibility of a videotaped interview of the seven-year-old victim, the defendant’s pastor’s report
to the police, and the victim’s statement to a social worker for medical diagnosis and treatment. The
remaining issues are the propriety of the jury instructions as to the mens rea elements of child rape
and the propriety of consecutive sentences. Having found no reversible error, we affirm the
judgments of conviction and sentence as imposed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
joined. DAVID H. WELLES, J., filed a separate opinion.
David L. Raybin and William Bruce, Nashville, Tennessee, for the appellant, Albert Ray Neese.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. (Torry) Johnson, III, District Attorney General; and Bernard McEvoy and Jennifer Tackett,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The defendant, at trial, faced indictment on charges of aggravated sexual battery (Class B
felony) in counts one, three, and five, and rape of a child (Class A felony) in counts two and four.
A jury convicted the defendant on all counts as charged. At sentencing, the trial court dismissed the
aggravated sexual battery in count three and imposed an effective twenty-eight-year sentence on the
remaining counts. Eight concurrent years on each conviction of aggravated sexual battery and
twenty concurrent years on each rape of a child conviction, with the two groups to run consecutive,
constituted the total sentence imposed.
The defendant appeals his convictions and sentence, raising the following issues:
1. Whether the admission of an ex-parte video recording of the victim was in error:
a. As violating the defendant’s right to confrontation under the Tennessee and
the United States Constitutions,
b. As failing to qualify as an exception to the general prohibition of hearsay
testimony,
c. As violating the defendant’s right to a fair trial under the due process
provisions of the United States Constitution;
2. Whether the defendant’s pastor’s “report to the police” constituted inadmissible
hearsay;
3. Whether a licensed clinical social worker’s testimony of the victim’s hearsay
statements was admissible;
4. Whether the trial court erred in its instructions as to the mens rea elements of
child rape; and
5. Whether the trial court properly imposed consecutive sentences under Tennessee
Code Annotated section 40-35-115(b)5 and the United States Constitution.
This case concerns charges against the defendant for sexual abuse of his step-granddaughter,
C.C.1 On June 14, 2003, the victim’s mother, Malina Shannon, had returned to the defendant’s
house unexpectedly early from an errand. At the time, the defendant was the only adult present and
was babysitting for Mrs. Shannon’s four children. The children then ranged in age from six months
to seven years, which was the age of the victim. Mrs. Shannon’s husband, Wilson Shannon, was the
only child of the defendant’s wife, Athena. The Shannons, at that time, lived in New Johnsonville
but frequently visited in the defendant’s home in Nashville on weekends. On this occasion, Mrs.
Shannon’s vehicle had broken down two blocks away, and she returned to the house by using a
child’s scooter. She stated that the children inside the house were crying. Mrs. Shannon saw C.C.
sitting on a scrap of carpet in the carport with her panties down to her ankles. A male dog, Boo, was
in close proximity with its genitals showing signs of arousal. The defendant was standing nearby
and in the act of fastening his shorts. Mrs. Shannon first went to the victim to care for her. The
defendant immediately went inside the house without comment. Mrs. Shannon went inside also to
call the defendant’s wife and tell her to return home. Mr. Shannon happened to call then and was
told to come there by his wife. Mrs. Shannon went back outside and found the victim with her
panties down again and the dog, Boo, licking her pubic area. Mrs. Shannon explained to the victim
that this behavior was inappropriate. She also questioned the victim as to what the defendant had
done.
When the defendant’s wife and Mr. Shannon returned, Mrs. Shannon related what she had
seen. The Shannons and their children then left the defendant’s residence. On June 16, the
following Monday, Mrs. Shannon reported the incident to Nashville Metro Police. She spoke with
Detective Grant Carroll, who scheduled an interview of the victim at Nashville Child Advocacy.
1
Our court’s policy is to refrain from publishing the names of minor victims of sexual abuse.
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Detective Carroll asked Mrs. Shannon to wear a wireless transmitter and to confront the defendant.
She did this on June 23. The taped conversation was played for the jury.
Mrs. Shannon described the defendant’s backyard as containing an above ground swimming
pool and a sauna referred to as the smokehouse.
On cross-examination, she admitted that she had instituted a civil suit against the defendant,
seeking two million dollars in damages. Mrs. Shannon also stated that she had not seen the
defendant do anything inappropriate to the victim.
James Rockey, in June 2003, was the pastor at the church attended by the defendant and his
wife. On June 15, Pastor Rockey was consulted by the defendant and his wife. The defendant
exhibited tears and appeared distraught to Pastor Rockey. In their meeting after the church service,
the defendant told Pastor Rockey that he had sinned against God, his church, his wife, and his family.
The defendant related that on that weekend he had seen their dog licking the victim’s privates and
that he too licked her. The defendant also stated that in 2002, possibly in November, he had touched
the victim. The pastor did not inquire further. Later, Pastor Rockey reported the incident to the
Department of Children’s Services.
The victim was eight years old at the time of the defendant’s trial. C.C. testified how she had
allowed Boo, the dog, to lick her vagina, which she referred to as “her private.” The defendant had
witnessed an incident of this type previously and told her he would keep it a secret. She stated that,
on another occasion, the defendant had allowed the dog to lick the defendant’s penis. The victim
described another incident when she and the defendant were in the smokehouse, and the defendant
touched her vagina. She used dolls to demonstrate the touching and said it happened more than
once. The victim related another incident wherein she and the defendant rubbed their exposed
privates together. The victim further testified that on another occasion she had touched the
defendant’s exposed “private” while they were in the smokehouse. The victim stated that she had
suggested they touch privates, and the defendant agreed. The victim said she liked doing “bad
touches” with “Paw Paw” (the defendant) but did not like to get caught. She said she locked the
smokehouse door to avoid being caught. The victim next related that on one occasion she reclined
on the bench in the smokehouse while the defendant licked her private while supporting himself on
his hands and knees. On another occasion, the victim stated that she licked the defendant’s private
while standing on a bench in the smokehouse. The victim recalled another incident when she was
sitting with the defendant in the swing in the back yard. She stated that there was a blanket over
them and that the defendant felt her private under the blanket but on top of her clothing. The victim
next described the events on the day that her mother discovered the victim with the dog and the
defendant. She said the defendant was in the swing, watching her and “sort of guarding [her].” The
victim said that the defendant had bent down and touched her private from his seated position in the
swing.
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In cross-examination, the victim was asked about the number of times she had talked to the
individuals interviewing her and the two prosecuting attorneys. Other questions were related to the
events she had described during direct examination.
Hollye Gallion was a pediatric nurse practitioner at Our Kids Center who had examined the
victim for evidence of sexual abuse. Ms. Gallion was recognized by the trial court as an expert in
the field of diagnosis and treatment of child sexual abuse. Ms. Gallion testified that Phyllis
Thompson, a social worker, had done the initial interview with the family and victim in order to
obtain the history of the complaint. Ms. Gallion performed the genital exam based on the allegations
contained in the history. The examination, performed with a culpascope, proved to be normal. She
stated that less than seven percent of examinations produce physical evidence of sexual abuse. Ms.
Gallion stated that her results neither confirmed nor denied actual sexual abuse.
Phyllis Thompson served as a licensed clinical social worker at Our Kids Center. She had
taken the victim’s history as related by the victim and her family. This information was then given
to the pediatrician or licensed nurse practitioner who performed the physical examinations. Ms.
Thompson related the incidents told to her by the victim. These included the defendant touching the
victim’s privates by hand, the last time being the previous Saturday, June 14. The defendant’s
tongue touched the victim’s private more than once. The defendant’s private had touched the
victim’s. The victim had touched the defendant’s penis both by hand and mouth. Ms. Thompson
admitted that, in gathering a history, the model used in questioning children included the use of
leading questions at times.
Grant Carroll was, in June 2003, a detective with the Youth Services Division of Metro
Nashville Police. After receiving Mrs. Shannon’s report alleging sexual abuse of her daughter,
Detective Carroll scheduled an interview of the victim by Ms. Pam Scretchens of Nashville Child
Advocacy Center. He explained that the police used this agency for interviewing children due to the
expertise required. Over the defendant’s objection, the video-recorded interview of the victim was
played for the jury. Detective Carroll had equipped Mrs. Shannon with a wire transmitter for her
meeting with the defendant on June 23. Detective Carroll interviewed the defendant personally on
June 25 and audio-recorded the conversation. During the interview the defendant admitted to licking
the victim on her “butt cheeks” on June 14. The defendant said he had seen the dog lick the victim
on several occasions. He stated that he had once rubbed the victim against him in response to one
of the victim’s questions. The defendant related how the victim had once jumped in his lap and
kissed him and he had corrected her. The defendant also told of a game he and the victim played
simulating the victim having “kittens” as he pushed on her abdomen. The defendant denied
allegations of abuse or of sexual gratification motives.
After reading an election of offenses, the State rested.
The defense’s only witness was the defendant. He recounted the events of June 14, saying
that he went outside and saw the dog licking the victim. The victim asked the defendant to play.
The defendant stated that he was concerned with getting back to the younger children in the house.
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The defendant said that in a lapse of judgment, he had kissed the victim’s “butt.” When Mrs.
Shannon returned, he was merely buttoning a top button on his shorts that habitually became
unbuttoned. He stated that this was the account he conveyed to his pastor. He denied any other form
of inappropriate behavior on his part and said he never was undressed outside the house. The
defendant said that Wilson and Malina Shannon had filed a civil suit against him for two million
dollars. He also stated that Mrs. Shannon had sent an email message of the allegations to his church.
Analysis
Admission of Video Recording
The video recording in question was of an interview of the victim by Ms. Pam Scretchens,
an employee of Nashville Child Advocacy Center. According to Detective Grant Carroll, the
Nashville Metro Police Department relied on this agency for their forensic interviews of children.
The interview took place in a comfortable setting, and a large blank paper on an easel was present.
The interviewer used this aid in having the victim relate her account of past incidents of abuse. The
interview was approximately one hour in duration. The victim essentially repeated the allegations
contained in her trial testimony with some additional elaborations. The video was admitted by the
trial court on the grounds that the defendant had attacked the victim’s credibility. The video was
admitted as a prior consistent statement to rehabilitate the victim’s credibility. The jury was
instructed that the evidence was only for assessing the victim’s credibility and was not substantive
evidence. The video was shown to the jury during the testimony of Detective Carroll. The jury
requested to see the video again during its deliberations, and the trial court complied, again giving
the same accompanying instruction.
The defendant first asserts that the evidence violated his right of confrontation pursuant to
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The Supreme Court held that
testimonial statements are admissible only when the declarant is unavailable and where the defendant
has had a prior opportunity to cross-examine. Id., 541 U.S. at 59. Testimonial evidence was not
fully defined, but the court observed that an accuser’s formal statement to a government officer was
testimonial. Id. at 51. Under the facts of this case wherein the questioning of the victim was
performed by a surrogate of the police, the statement would be testimonial. However, we conclude
that the defendant is not entitled to relief. The defendant had, prior to the introduction of the video,
cross-examined the victim and could have recalled the victim for examination as to the content of
the recording. The facts herein do not present an occasion of unavailability which would call for the
confrontation protections protected by Crawford.
The defendant contends that State v. Pilkey, 776 S.W.2d 943 (Tenn. 1989), and State v.
Deuter, 839 S.W.2d 391 (Tenn. 1992), support his contention that the ex-parte video violated the
right of confrontation. We believe that Pilkey and Deuter are distinguishable from the instant case
in that in both cases the objectionable testimony was introduced as substantive evidence as opposed
to the present case. No instruction concerning the use of the evidence was provided in Pilkey or
Deuter unlike the procedure followed in the present case.
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The defendant next asserts that the video interview constituted “bolstering” of the victim’s
testimony in the absence of any attack on the victim’s credibility. The State responds by arguing that
the victim’s credibility was attacked and that the video was introduced not as substantive evidence
but to show a prior consistent statement in support of the victim’s testimony.
The defense adopted by the defendant was that the young victim, in her desire to please
adults, had been programmed to recite a litany of allegations against the defendant. This theory was
broached initially by questions during jury voir dire. The prospective jury members were questioned
by the defendant’s counsel as to whether they believed a child would make excuses if caught by her
mother doing something wrong. Other representative questions were: “Do you think children are
impressionable? Do you think they will say things, what people want them to say?”’ “There is a fine
line between preparation and programming. Would you agree?” and “Do you think it is possible that
a child could be encouraged to say something that isn’t true to please somebody?” In questioning
an individual juror who had been a teacher, counsel asked the juror if he ever had children who
“made things up to please their parents.”
In opening statements, the defendant’s counsel told the jury that they must decide if the
victim was telling the truth or making something up due to being caught interacting with the dog.
Also, in opening statements, counsel told the jury they must decide if the victim had been
programmed through the interviews and the prosecutors’ preparing her for trial.
The defendant’s counsel pursued this theme during cross-examination of the State’s
witnesses. During the cross-examination of the victim’s mother, she was asked the frequency of the
victim’s visits to Our Kids Center, Nashville Child Advocacy Center, and the Rape and Sexual
Abuse Center. The victim’s mother was also questioned about her civil suit seeking two million
dollars in damages from the defendant for his abuse of the victim.
Phyllis Thompson, the clinical social worker at Our Kids Center, was thoroughly cross-
examined by the defendant’s counsel as to her protocol in interviewing, including the use of leading
questions to focus the victim.
The forensic interview videotape was admitted by the trial court during the testimony of
Detective Carroll. The trial court relied on his finding that “to some degree, [the victim] was
impeached.” The jury was instructed at the time of the video admission as follows: “. . . this is not
substantive evidence. That is, it is not evidence proving facts in this case. It is played for the
purpose of assessing her credibility only.”
The defendant’s counsel, in closing argument, referred to the forensic interview as a “staged
production.” Counsel also stated that the victim “gets confused when she gets away from the script.”
More references to programming of the victim were also made by the defendant’s counsel.
The credibility of the victim in this case was crucial to the State due to the paucity of other
incriminating evidence. It was equally important to the defendant that doubt be cast on the victim’s
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testimony. The defendant attempted to do this by suggesting that investigators and counselors had
programmed the child through repetitive sessions.
Prior consistent statements are permissible after an impeaching attack on the witness’s
testimony. State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App.1993); State v. Robert D. Walsh,
No. W1999-01473-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 69, *4 (Tenn. Crim. App. at
Jackson, Jan. 30, 2001), perm. app. den. (June 4, 2001). “[I]t is well-established in this state that a
prior consistent statement is admissible to rehabilitate a witness after insinuations of recent
fabrication or deliberate falsehood or to respond to impeachment by a prior inconsistent statement.”
State v. Daniel D. Naughton, Sr., No. 02C01-9612-CR-00449, 1998 Tenn. Crim. App. LEXIS 317,
*12 (Tenn. Crim. App. at Jackson, Mar. 18, 1998). The impeaching attack on the witness’s
credibility need not be successful for admissibility of the prior consistent statement. Id. at *13.
On the two occasions that the jury viewed the video interview, the trial court, before and after
each viewing, instructed the jury that it was not substantive evidence and was for use only in
assessing the victim’s credibility. This is a proper instruction to ensure against the use of the
evidence for other than corroborative purposes. See State v. Livingston, 907 S.W.2d 392, 398
(Tenn. 1995). A prior consistent statement used to rehabilitate a witness is not hearsay as it is not
offered for the truth of the matter asserted. Tenn. R. Evid. 801(c).
We conclude that the admission of the forensic interview video was not error. In light of the
defendant’s assertions of programming the victim by repetitive means, the interview corroborated
the victim’s testimony at trial. It was effective rebuttal in that the interview occurred during the
initial investigation of the complaint before counseling sessions were instituted and prior to the
repeated visits to counselors.
In summary, we conclude that the forensic interview was not hearsay in that it was not
offered for the truth of the statements therein. The interview was introduced as corroboration of the
victim’s in-court testimony after impeachment by the defense. A proper instruction was provided
the jury for the purpose for which the evidence could be considered. The defendant has not
demonstrated error on this issue.
Pastor Rockey’s Police Report
The next issue concerns a report prepared by the Department of Children’s Services as a
result of Pastor Rockey’s telephone report of the defendant’s admissions. The State agrees with the
defendant that the report was inadmissible hearsay but maintains that the error was harmless.
No witness testified who could authenticate the document, and Pastor Rockey did not have
personal knowledge that the report was generated from his telephone call. See Tenn. R. Evid.
901(a),(b)(1). There was no evidence that the report was self-authenticating pursuant to Tennessee
Rules of Evidence 902(1). Due to the lack of proper authentication, the document was erroneously
admitted as evidence.
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In addition, the report constituted hearsay under Tennessee Rule of Evidence 801(c). The
trial court observed that “it looks like a business record,” but no witness or custodian testified to its
preparation and no certification pursuant to Tennessee Rule of Evidence 902(11) accompanied the
document. The document did not qualify as an exception to hearsay under Tennessee Rule of
Evidence 803.
Nevertheless, we agree with the State that the error was harmless beyond a reasonable doubt.
See Tenn. R. Crim. P. 52(a). Pastor Rockey testified in detail as to the defendant’s revelations to
him. He further clarified or explained the inconsistences contained in the report’s wording. Pastor
Rockey testified that he did not recall using the words “vagina” or “fondled” as contained in the
report in making his oral report. His testimony of the defendant’s admissions and the erroneously
admitted report were otherwise consistent. In light of the pastor’s testimony, the erroneous
admission was harmless beyond a reasonable doubt.
Victim’s Statements for Medical Diagnosis and Treatment
In this issue, the defendant contends that the trial court erred in allowing a licensed clinical
social worker to testify concerning the victim’s allegations under the medical diagnosis exception
to the hearsay rule. Tenn. R. Evid. 803(4).
Phyllis Thompson was the social worker who interviewed the victim at Our Kids Center.
One purpose for obtaining the victim’s relevant history was for the use of medical personnel in their
subsequent medical examination and treatment. Hollye Gallion, the nurse practitioner and examiner
in this case, confirmed that this was the procedure followed at Our Kids Center. The defendant
maintains that, due to Ms. Thompson being “only” a licensed clinical social worker, the statement
would not qualify under the medical diagnosis hearsay exception. The rule excepting such
statements from the hearsay prohibition is as follows: “Statements made for purposes of medical
diagnosis and treatment describing medical history; past or present symptoms, pain, or sensations;
or the inception or general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis and treatment.” Tenn. R. Evid. 803(4). The plain wording of the exception
does not require that the statement be imparted to medical personnel, but it does require that the
information is intended for use in diagnosis and treatment. The scope of the rule applies to any
person to whom a statement is made for purposes of or is pertinent to medical diagnosis and
treatment. State v. McLeod, 937 S.W.2d 867, 869 fn.1 (Tenn. 1996); cf. State v. Barone, 852
S.W.2d 216 (Tenn. 1993) (wherein the rule was not extended to statements made to psychologists).
There was evidence in the instant case that the method utilized was standard procedure at Our
Kids Center. The clinical social worker took the victim’s history and relayed the information to
medical personnel. The information was taken at least in part, for medical diagnosis and treatment.
We conclude that the statement was admissible hearsay pursuant to Tennessee Rule of Evidence
803(4).
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Mens Rea Jury Instructions
The defendant next contends that the trial court erred by charging the jury that the defendant
could be convicted of rape of a child if “the defendant acted either intentionally, knowingly or
recklessly.” The defendant argues that child rape is defined by conduct and that the inclusion of
recklessness impermissibly lessened the State’s burden of proof.
“[A] defendant has a constitutional right to a correct and complete charge of the law.” State
v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Each element of an offense must be described and
defined by the trial court. State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). A charge is
prejudicial error if it fails to “submit the legal issues or if it misleads the jury as to the applicable
law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
The precise issue which the defendant posits in this case was addressed in State v. Chester
Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1053, **35-37
(Tenn. Crim. App. at Nashville, Nov. 30, 2004), perm. app. denied (Tenn. Mar. 21, 2005). This
court therein stated that the elements of rape of a child are unlawful sexual penetration of the victim
and the victim being less than thirteen. The unlawful sexual penetration of the victim was
categorized as both nature of the conduct and result of the conduct. Id. at *16. Because the crime
of child rape contains all three conduct elements, a jury can find the defendant guilty by determining
the defendant acted intentionally, knowingly, or recklessly. Id. at *14.
We acknowledge that this position is not unanimously held by the members of our court. The
opposing view is contained in State v. Weltha Womack, No. E2003-02332-CCA-R3-CD, 2005 Tenn.
Crim. App. LEXIS 2 (Tenn. Crim. App. at Knoxville, Jan. 4, 2005). Therein, a panel of this court
held that sexual penetration as used in the offense of aggravated rape was a nature of conduct
element. The Womack court determined that the inclusion of recklessness in the jury instruction
was reversible error in permitting a conviction based on reckless penetration. However, a majority
of this panel adheres to the holding in Walters, 2004 Tenn. Crim. App. LEXIS 1053, *16, that
“unlawful sexual penetration of the victim is both nature of the conduct and result of the conduct
[element].”
As a companion issue, the defendant asserts that the mens rea charge of intentionally,
knowingly, or recklessly in the disjunctive permitted the possibility of a non-unanimous verdict on
the child rape charges.
We agree with the defendant that the definition instruction was in the disjunctive and
authorized a conviction based on a reckless mens rea element. However, we have previously
determined that the elements of the crime of child rape can be proven by a mens rea of intentionally,
knowingly, or recklessly. Therefore, a majority herein concludes that the inclusion of recklessness
in the disjunctive does not pose a threat of a non-unanimous verdict.
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Our review reveals that the trial court in the instant case properly described the elements of
the crime of child rape and correctly provided the statutory definitions for the mens rea requirements.
Accordingly, we conclude that the subject jury instructions were proper and that the defendant has
failed to demonstrate error as to either of the issues attacking the jury instructions.
Consecutive Sentencing
In his last issue, the defendant contends that the trial court erred in imposing consecutive
sentences. The defendant bases his contention on allegations that the trial court failed to state its
reasons for imposing consecutive sentences in accordance with Tennessee Code Annotated section
40-35-115 and that consecutive sentences are prohibited by the Sixth Amendment to the Constitution
of the United States.
This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. T.C.A. § 40-35-401(d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles and all relevant facts
and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to
comply with the statutory directives, there is no presumption of correctness and our review is de
novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we would have preferred a different result.
State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).
Tennessee Code Annotated section 40-35-115(a)(b)(5) provides as follows:
(a) If a defendant is convicted of more than one (1) criminal offense, the court
shall order sentences to run consecutively or concurrently as provided by the
criteria in this section.
(b) The court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant’s
undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim
or victims.
The Sentencing Commission Comments to Tennessee Code Annotated section 40-35-115
acknowledge that the statute is essentially a codification of two Tennessee Supreme Court cases:
Gray v. State, 538 S.W.2d 391 (Tenn. 1976), and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987).
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The Court in Taylor gave the following guidance to trial courts in considering consecutive
sentences:
Trial courts should weigh the aggravating circumstances arising from the
relationship between defendant and the victim or victims, the age of the victim or
victims, the time span of defendant’s undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual physical and mental damage to the
victim or victims and determine the appropriate use of consecutive sentencing
accordingly, bearing in mind the general objectives set forth in Gray. Obviously, no
rigid formula for application to such cases would be appropriate, but we caution that
consecutive sentences should not routinely be imposed in sexual abuse cases, or in
other cases, and that the aggregate maximum of consecutive terms must be
reasonably related to the severity of the offenses involved.
Taylor, 739 S.W.2d at 230.
The categories of offenders eligible for consecutive sentencing are set forth in T.C.A. § 40-
35-115. The pertinent provision for this defendant is as follows:
The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances arising
from the relationship between the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim or victims.
Id. at 40-35-115(b)(5).
The evidence established that the defendant was considered by the victim as her grandfather,
and she called him Paw-Paw. The defendant frequently was the caretaker for the victim and her
siblings. The defendant had occupied a position of trust within the familial structure.
The evidence did not clearly delineate the time span over which the abuse occurred. We can
infer that it occurred over several months from the different incidents described by the victim and
the fact that her visits to the defendant’s occurred on weekends. Pastor Rockey stated that the
defendant admitted to touching the victim possibly in November of 2002, seven months prior to June
14, 2003. These factors indicate a relatively long period of undetected abuse by the defendant.
The nature and scope of the acts of abuse are documented earlier in this opinion and their
specifics need not be repeated. Suffice it to say, those acts provide strong justification to protect the
public from the defendant by consecutive sentencing.
Rebecca Lee, a therapist with the rape and sexual abuse center, had been counseling the
victim since August 2003. She testified that the victim had suffered severe trauma, exacerbated by
the defendant’s betrayal of trust and the involvement of an animal. Ms. Lee stated that the severe
trauma experienced by the victim produces definite changes in the brain, making emotional
regulation problematic. This could result in the victim being more vulnerable to depression, phobias,
eating disorders, chemical and behavioral addictions, and impulse control. Ms. Lee expressed hope
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that the early treatment of the victim and her family’s close support would help her avoid these
dangers. She stated that the length of time, the relationship of the defendant, and the multiple acts
involved, especially with an animal, all weighed against the victim’s prospects. Tangible signs of
adverse effects on the victim had been observed by Ms. Lee. The victim had involved other children
in sexual play and had assumed the role of a dog in play sessions.
The victim’s mother, Malina Shannon, also testified at the sentencing hearing as to the effects
she had observed concerning the victim. Mrs. Shannon stated that the victim acted precocious,
needed reassurance, expressed anxiety over losing family members, and was more aware of sexual
behavior.
The evidence establishes that sufficient grounds exist to justify the imposition of consecutive
sentencing. The defendant’s willingness to breach his position of trust, the multitude of acts
involved, and the defendant’s callousness toward the harm suffered by the victim all support the
proposition that society should be protected from the defendant. The individual sentences were all
set at presumptive ranges. Consecutive sentencing was appropriate under the facts of this case.
The defendant asserts, without argument or citation to authority, that consecutive sentences
are prohibited by the Sixth Amendment. We consider the issue waived by the defendant pursuant
to Tennessee Court of Criminal Appeals Rule 10(b).
Conclusion
There being no reversible error revealed by our review, the judgments of conviction and
sentencing are hereby affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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