IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 1, 2005
STATE OF TENNESSEE v. HARLEN ROY L. ZIRKER,
aka ANTHONY LAMONT ZIRKER
Direct Appeal from the Criminal Court for Davidson County
No. 2001-C-1408 Seth Norman, Judge
No. M2003-02546-CCA-R3-CD - Filed May 12, 2005
The defendant, Harlen Roy L. Zirker, aka Anthony Lamont Zirker,1 was convicted by a Davidson
County jury of two counts of rape of a child, a Class A felony, and four counts of aggravated sexual
battery, a Class B felony, and received an effective sentence of seventy-two years. The defendant
raises the following issues on appeal: (1) whether the evidence is sufficient to support his
convictions; (2) whether the trial court erred in denying his motion to strike two jurors for cause, in
admitting evidence of the defendant’s prior criminal convictions, and in imposing consecutive
sentences. Following our review, we affirm the convictions and sentences.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.
G. Kerry Haymaker, Nashville, Tennessee, for the appellant, Harlen Roy L. Zirker, aka Anthony
Lamont Zirker.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Sarah Davis and Bernard McEvoy, Assistant District
Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
1
In the record, the defendant’s name is spelled “Harlan” and “Harlen;” therefore, we will utilize the spelling
contained in the indictment.
The defendant’s stepdaughter, B.W.,2 who was twelve years old at the time of the trial,
testified that she is the oldest of four children and lives with her mother and siblings in Nashville.
After identifying male and female body parts, including genitalia, on two photographs, the victim
was questioned about the instances of sexual contact, which included oral sex, masturbation, and
vaginal intercourse, between herself and the defendant. After differentiating between “good touches”
and “bad touches,” the victim stated that the defendant had given her “bad touches” in the past.
B.W. testified to at least three distinct instances of sexual contact between herself and the defendant,
which began when she was in kindergarten and ended when she was in the fifth grade.
B.W. testified that when she was ten years old and in fifth grade, the defendant took her and
her siblings to the hospital after her youngest brother was born on January 20, 2000.3 After visiting
a short time, they returned home, where the defendant sent the children upstairs but called B.W. back
downstairs and told her to go into the bathroom and take off her clothes. The defendant was sitting
on the toilet with his clothes off, and after B.W. took off her clothes, he told her to “get up on [her]
knees,” which she knew to mean “put his penis in [her] mouth.” B.W. recounted what happened
after the defendant told her to get up on her knees: “He put his penis inside my mouth and then he
had told me to put my hand up on it and move it up and down and when he got through with that
some kind of salty stuff had got in my mouth and he told me to spit it in the commode.” When her
hand was on the defendant’s penis, the defendant “took [her] hand and made it move up and down.”
While B.W. was masturbating the defendant, he touched her breasts. The defendant’s penis hurt
B.W.’s throat and made her feel like she was “about to be sick.” She did not know what came out
of his penis, but she testified that it was “clear” and it tasted “salty” and that she spit it out of her
mouth and into the toilet because the defendant told her to. She stated the defendant told her “every
time” to spit it into the toilet, and on one occasion when she “was about to spit it in the trash can,”
the defendant “got mad” and told her to spit it in the toilet. After spitting into the toilet on this
occasion, the defendant told B.W. to sit on his lap. Although she did not want to, she complied
because the defendant was “mean.” B.W. testified as to what happened next: “He told me to sit on
his lap and then he put his penis inside of me and then he put his hands on my waist and then he
started making me go up and down.” She was facing the defendant and his penis was “hard” and
made B.W.’s vagina and stomach hurt, and she felt “kind of sick.” The encounter was cut short
when B.W.’s sister, A.Z.,4 turned the doorknob on the bathroom: “My little sister had came down
stairs and she was about to come into the bathroom and then he had pushed me off his lap and told
me to put my clothes on. And he had zipped his pants back up and he told her to go up stairs [sic]
and then he shut the door behind him and he went up stairs [sic].” B.W. stated that A.Z. saw her
naked and on the floor where the defendant had pushed her before the defendant told A.Z. to go back
upstairs. B.W. “didn’t like” having sex with the defendant and knew “[i]t was wrong.” However,
she never told her mother because the defendant said he would “hurt” or “kill” her. She was also
2
It is the policy of this court to refer to minor victims of sexual abuse by their initials.
3
The victim’s mother testified that the youngest brother was born on January 20, 2001.
4
From the record, we cannot determine the last name of the victim’s sister. H owever, since the defendant
testified that the sister is his child, we will refer to her as “A.Z.”
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afraid the defendant would hurt her mother. This was the final sexual encounter between the
defendant and the victim.
B.W. also testified concerning her first sexual encounter with the defendant. When she was
five years old and in kindergarten, she was outside playing with her siblings. Her mother had gone
to work, and B.W. went inside and told the defendant her back teeth were hurting “real bad.” The
defendant was sitting on the bed and had B.W. get on her knees on the floor. He then put his penis
in her mouth and said, “[T]his is what the dentist does to you.” His penis was “hard” and felt
“[h]eavy” in her mouth. B.W. also recalled what the defendant did when his penis was in her mouth:
“He had took his hand and put in on the back of my head and started making my head” move back
and forth. The defendant also had her touch his penis with her hand and made her move it up and
down. She also did not tell her mother about that incident because the defendant said he would hurt
her or her mother.
When B.W. was in third grade, the defendant came into her bedroom when she was asleep
and sat on her bed. He told her to get out of the bed and get on her knees and open her mouth. She
then sucked the defendant’s penis and touched it with her hand.
A short time after the final incident, A.Z. told their grandmother about what she had seen
between B.W. and the defendant. B.W.’s grandmother then asked B.W. what the defendant had
done, and B.W. told her “he made me take my clothes off and suck his penis.” The grandmother
then took the victim downtown to the police department and later to a clinic for a medical
examination. At the clinic, the victim’s vagina and mouth were both examined, which made her feel
“uncomfortable.” She also spoke to “Pam” at the Child Advocacy Center and gave two separate
statements. She acknowledged that she told Pam everything the defendant had done to her only after
going to the clinic and being told that she needed to be tested for sexually transmitted diseases. B.W.
testified that she does not use tampons during menstruation and that she has never injured her vagina.
She denied that anyone else had ever “done these things” to her.
On cross-examination, B.W. stated that in her first interview at the Child Advocacy Center,
she told them everything about the bathroom incident except for the defendant having her sit on his
lap because she was “kind of embarrassed” and “scared.” She also agreed that she stated in her
second interview that some “white stuff” came out of the defendant’s penis in the bathroom and fell
onto the bathroom floor. She clarified that “some of it” went into her mouth, “but not all of it,” and
that some fell on the floor because he “had his hand on there making it go up and down” and “some
of it had came out.”
The defendant’s ex-wife, Tamara Woodard, testified that she and the defendant married in
1996, after living together for six months, and their relationship ended in 2001. She has four
children, including B.W., and she and the defendant have one daughter together, A.Z. The defendant
often watched the children after school and when Woodard was working or running errands. She
stated that B.W. has never had an injury to her vagina and does not use tampons. On cross-
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examination, she testified that she left the defendant because of “his drinking, drugs and abuse
towards [her] and [her] kids.”
Holly Gallion, a pediatric nurse practitioner with Our Kids Center in Nashville, testified that
she examined B.W. on April 13, 2001, for diagnosis and treatment. The victim relayed to her
information concerning “penile oral contact” and “penile genital contact” between herself and the
defendant. Gallion performed an “anogenital” examination on B.W. and discovered that B.W. had
a “tear or an absence of her hymenal tissue at 6:00 o’clock on the hymen” which extended “from the
rim to the base of the hymen.” This indicated “some sort of past penetrating trauma to that area of
the body” and was consistent with “some significant type of penetration, typically from sexual
contact.” This injury was also consistent with B.W.’s testimony concerning being forced onto the
defendant’s penis. Although this type of injury could have other, non-sexual causes, such a cause
would most likely be “some other almost impaling type of injury to that part of the body.” Such an
injury to the hymen, though not impossible, would most likely not be caused by falling off a bicycle,
using tampons, or masturbation. Gallion testified that the victim and her mother were both “very
fearful” and “fearful for their lives” when they came to the clinic.
On cross-examination, Gallion testified that it was impossible to tell how old B.W.’s hymenal
injury was, and there was no physical evidence that linked the injury to the defendant. On redirect,
she testified that the medical history she obtained from the victim and her mother indicated no
possible cause of the hymenal injury other than sexual intercourse with the defendant.
Lisa Dupree, a social worker at the Our Kids Center, interviewed B.W. and her mother to
obtain B.W.’s medical history in preparation for Gallion’s physical examination. Although not in
“acute distress,” the victim was “anxious,” “nervous,” and “reported significant anxiety with having
an exam.” She was also afraid “that someone was going to kill her.” The victim told Dupree that
the defendant “made her perform fellatio on him” and that “something came out of his penis and
went in her mouth.” B.W. “described the substance as white, but sometimes more brown” and said
that it had happened “more than one time.” After Dupree explained to the victim the need for testing
for sexually transmitted diseases, B.W. told her that the defendant’s “private touched the part
between her legs” on more than one occasion. The victim said something came out of the
defendant’s penis and “went on her thigh maybe between her legs,” and she indicated that the
touching was on the outside of her body. However, after the medical examination, Dupree told the
victim that they “could see that something had been inside her private.” The victim was “quiet and
asked if she was in trouble.” After she was reassured that she was not in trouble, the victim “said
she knew he had put his private inside her, but she was afraid to tell.” The victim again stated “she
was afraid [the defendant] was going to kill all of them.”
Detective David Zoccola of the Metropolitan Nashville Police Department testified that the
victim’s case was assigned to him after the initial report was taken by a uniform patrol officer.
Zoccola contacted the Department of Children’s Services (“DCS”), who then arranged for the
victim’s interview at the Child Advocacy Center and the medical examination at Our Kids Center.
Detective Zoccola did not interview the victim but relied on the reports compiled by the other
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agencies. He stated that no DNA tests were conducted because of the time lapse between the last
sexual encounter and the victim’s medical examination. No DNA sample was collected from the
defendant for comparison purposes because no DNA sample was collected from the victim.
Detective Zoccola acknowledged that the defendant was implicated in the initial report taken by the
uniform patrol officer, but when Zoccola referred the matter to DCS, he mistakenly indicated the
victim’s grandfather was the perpetrator.
Pamela Scretchen, a forensic interviewer at the Nashville Child Advocacy Center,
interviewed the victim twice, on March 23, 2001 and May 9, 2001. She took notes from those
interviews and later wrote summaries, which she provided to the district attorney’s office. Scretchen
read aloud extensive portions of those summaries at trial:
I asked [B.W.] if she knew why she was at the center and she said no. I asked [B.W.]
what her mother told her about coming to the center and she said nothing really. Just
to tell the truth. I clarified to tell the truth about what. [B.W.] replied when my
mom’s husband child molested me. I asked [B.W.] to tell me what happened from
the beginning to the end.
[B.W.] remained silent for several seconds and did not respond. She then
blurted he made me get on my knees and suck his -- That was all. [B.W.] appeared
upset and did not volunteer any additional details. I clarified, what’s your mom’s
husband’s name. [B.W.] stated Harlan Zirker. I showed [B.W.] a male anatomical
drawing and asked her to identify the body parts she was referring to and she circled
the penis on the male anatomical drawing. When asked what she called that body
part, she expressed she didn’t want to say the name.
I showed [B.W.] a picture of a female anatomical drawing and asked her to
identify the body part that [the defendant], that touched [the defendant’s] body.
[B.W.] circled the mouth and the breast on the female anatomical drawing. I stated,
tell me how that started, from beginning to the end. [B.W.] said it’s been since mom
first met him. The first time mom went to work and I told mom I needed to go to the
dentist. He told me this is what the dentist does and he put his penis in my mouth.
[B.W.] reported that her brother and sister were outside and the incident occurred
during the daytime.
When asked if she told anyone about [the defendant,] she said, I didn’t tell my
mother. He told me he would hurt my mother and kill her. [B.W.] added that [the
defendant] told her don’t tell, if you do, I’m going to hurt you. I clarified this was the
first incident when she told her mom that she needed to go to the dentist and she said
yes.
[B.W.] reported that she attended Wharton Middle School and lived at 1601
out in North Nashville. When asked when she was in the house, where she was in
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the house, she said she didn’t remember. When asked if [the defendant’s] penis
touched on top of her mouth or somewhere else, she stated inside of her mouth.
When asked if something like that happened again, she answered yes. I
stated, tell me about that. [B.W.] replied the same thing.
When asked what her stepfather’s thing, penis, looked like, she said she
didn’t know because she closed her eyes. [B.W.] added I did see it once. When
asked to describe what she saw, she said it was long. When [I] asked her what [her]
stepfather’s thing felt like, she said hard. I asked [B.W.] if she ever saw anything
come out of her stepfather’s thing and [B.W.] said yes, something. I don’t know
what it was. He said don’t swallow it.
[B.W.] continued, one time I spit it out in the trash can and he tried to hit me.
[B.W.] continued, he said don’t spit that in the trash can. I clarified what did he
make you do with the stuff in your mouth. She replied, spit it in the commode.
When asked what the stuff in her mouth tasted like, she said salty. When asked if she
tasted salty stuff in her mouth one time or more than one time, she answered more
than one time.
When asked if something like that happened another time, she reported that
the same thing happened when she attended JE Moss Elementary School. [B.W.]
explained that she still lived on Barkley when she attended JE Moss Elementary
School. I asked [B.W.] when [was] the last time her stepfather did something like
that to her. [B.W.] reported that the last time was when her mother went to the
hospital to have a baby.
[B.W.] reported that [the defendant] took her and her siblings to see the new
baby. [B.W.] reported that she still lived on Barkley. She stated that she lived on
Barkley Square Court for about three years. [B.W.] explained that her stepfather was
in a rush to get home and reported that he looked at her funny. According to [B.W.],
after she visited her mother and the baby, her stepfather drove her back to their home.
[B.W.] stated he called me down stairs in the bathroom and locked the door
and he stuck it in my mouth. When asked how that started, [B.W.] explained that her
stepfather sat on the toilet and opened his pants. [B.W.] added that her stepfather
opened her mouth and put his thing in her mouth. [B.W.] stated that salty stuff came
out when he finished. When asked how she was positioned in the bathroom she
stated she was on her knees. When asked if she was ever in a different way or
position, she stated that she was always on her knees.
[B.W.] reported while she was in the bathroom, her stepfather told her not to
tell anyone or he would hurt her. [B.W.] reported that she remembered talking to her
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mother over the phone while she was staying overnight at the, in the hospital. [B.W.]
expressed that she wanted to tell her mother about her stepfather over the telephone,
but was afraid.
After B.W.’s medical examination, Scretchen received a referral for a second interview, in which
B.W. spoke about sexual intercourse with the defendant:
I asked [B.W.] if she knew why she was at the center and she nodded her head
yes. [B.W.] expressed that she didn’t tell me all the bad stuff that happened to her.
[B.W.] questioned if she would have to start over and tell me about what happened
a second time. [B.W.] requested that she tell me what she forgot to tell and not talk
about everything that she told me in the previous interview.
I explained to [B.W] the importance of what she had to tell me and that I may
have to clarify some things that she told me in the previous interview. I clarified with
[B.W.] that during her previous interview she told me that [the defendant] put his
thing in her mouth. [B.W.] stated yes.
I clarified, did that happen one time or more than one time? She replied more
than one time. I asked [B.W.] to tell me where the incidents occurred and she listed
1601, out north Nashville, 2208 24th Avenue North, 1466 Snell Boulevard and 516
Barkley Square Court.
I asked what did you want to tell me about today. [B.W.] answered his thing
going in this, and she pointed down toward her vaginal area. I showed [B.W.] a
female anatomical drawing and asked her to identify what body part she was referring
to on the drawing. [B.W.] circled the vagina and identified it as stuff.
I showed [B.W.] a male anatomical drawing and asked her to circle the body
part she was referring to as thing. And she circled the penis on the drawing. I told
[B.W.] to tell me what happened when [the defendant] put his thing in her stuff from
the beginning to the end. [B.W.] reported that [the defendant] put his thing in her
stuff one time. She reported that she remembered the day being January 20th. When
asked what made her know the date is January 20th, she stated because that’s when
my brother was born.
According to [B.W.], [the defendant] picked up [B.W.], [A.Z.], her five year
old sister and [G.S.], seven year old brother from their grandmother’s home. [B.W.]
reported that [the defendant] took them to the hospital to visit their mother. [B.W.]
explained that they didn’t stay at the hospital long because her mother and [the
defendant] began to argue. And [the defendant] told them to get ready to leave.
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According to [B.W.], when her siblings, when she and her siblings arrived
home, [the defendant] told them that they had to clean up the house. [B.W.] stated
that [she] remembered that [the defendant] got mad because she and her brother
made a sandwich and there were crumbs on the table. [B.W.] reported that she and
her siblings were going up stairs and [the defendant] called [B.W.’s] name from the
bathroom.
When asked what time it was when [the defendant] called into the bathroom,
said nighttime. The reason she thought it was around 6:00 o’clock. [B.W.]
explained, he called me in there and said take off your clothes, and he started
unbuckling his belt. According to [B.W.,] [the defendant] made her get on her knees
and put his thing, penis, in her mouth.
[B.W.] stated that [the defendant] then put his thing, penis, in her stuff,
meaning vagina. [B.W.] explained he would make his thing touch me, he put my leg
over his leg and the other leg over. [B.W.] demonstrated using her own legs and
arms to represent how she sat on top of [the defendant]. [B.W.] volunteered to draw
figures representing how [the defendant] was in the bathroom when he put his penis
on her vagina.
[B.W.] drew figures representing [the defendant] under a figure, [B.W.],
representing [B.W.]. [B.W.] explained that her back was facing [the defendant]. I
asked did [the defendant’s] thing go on top of your stuff or somewhere else. [B.W.]
answered inside. I asked is there a reason you think [the defendant’s] thing was
inside your stuff. [B.W.] replied you could feel it, the tip part when he stuffed this
in it, it was hurting.
[B.W.] spontaneously pointed to the top part of the penis on the male
anatomical drawing. I asked [B.W.] to draw . . . a picture representing what her
bathroom looked like. [B.W.] drew objects inside of her bathroom and drew figures
representing herself and [the defendant] inside of the bathroom. [B.W.] drew [the
defendant] sitting on the toilet and drew a figure representing her in front of him. I
asked what did [the defendant] do when his thing was in your stuff. [B.W.] answered,
he was moving up and down.
When asked what happened next, she explained white stuff came out and I
put my clothes back on. I asked [B.W.] to explain how her clothes were, how her
clothes were and she said off. I asked [B.W.] what clothes were off and she
spontaneously wrote shirt, underwear and bra. When asked what clothes [the
defendant] had off she wrote, took in his pants and underwear half way off.
[B.W.] explained that [the defendant’s] underwear were half way down. I
asked [B.W.] what happened when [the defendant] stopped, and she said he pushed
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me and I fell into the corner. When I looked back, he was going like this.
(Indicating) [B.W.] explained by demonstrating by forming her hand into a fist and
rapidly moving it up and down. [B.W.] explained that the white stuff came out and
went on the bathroom floor. She described it went in the toilet paper and a little got
on the rug. He tried to wipe it up, but it wouldn’t come up.
The thirty-nine-year-old defendant testified concerning his work history as well as his
relationship with Tamara Woodard. He also admitted he had been previously convicted of receiving
stolen property and possession of a firearm by a convicted felon. The day after the victim’s youngest
brother was born, the defendant brought the victim and her other siblings home from the hospital
after visiting with their mother. He described the events of the evening:
Well the kids, they came, we all came in and the kids went up stairs. [G.S.],
he started playing Nintendo, I went in my bedroom. The kids came in there and
asked for a paper and stuff so they can do some drawing, the girls did. So they got
paper out of the walk-in closet, Tamara’s closet. Then they went in there drawing.
They had already eaten earlier so, you know, they cleaned up and went to bed. And
that’s all of what happened.
The defendant denied both having any type of sexual contact with the victim and that any of the
incidents described by the victim in court occurred. After being contacted by the police concerning
the accusations, the defendant offered to volunteer for a DNA test, but none was ever administered.
On cross-examination, the defendant stated he loved the victim and they had a “stepfather daughter
relationship.” He stated he could not explain why the victim made the accusations of sexual contact,
other than “maybe she’s substituting me for someone else.” Later, he agreed that his best
explanation for the accusations was Tamara Woodard’s anger toward him for making her and the
children move out of his house, which led her to make the victim allege sexual abuse. He admitted
to using marijuana and crack cocaine. On redirect, he acknowledged he had been diagnosed with
chlamydia when Woodard and the children moved in with him.
At the conclusion of the State’s case, the trial court called upon the State to make an election
of offenses. At that time, the State dismissed four of the original counts, and the remaining eight
counts were renumbered. The State then detailed to the jury the time, place, and nature of the acts
supporting each count of the indictment. Counts 1 and 5 of the renumbered indictment were rape
of a child and aggravated sexual battery, respectively, for the first incident which occurred when the
victim was in kindergarten and the defendant placed his penis in the victim’s mouth and placed her
hand on his penis. As to Count 1, the jury returned a verdict of guilt on the lesser-included offense
of aggravated sexual battery, and on Count 5 returned a verdict of guilt. Counts 2 and 3, rape of a
child, and Counts 6 and 7, aggravated sexual battery, related to the incident that occurred on or about
January 20, 2001, when the victim’s youngest brother was born, during which the defendant placed
his penis in the victim’s mouth, penetrated her vaginally, touched her breasts, and had her masturbate
him with her hand. The jury returned verdicts of guilt on each count as charged. Count 4, rape of
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a child, and Count 8, aggravated sexual battery, stemmed from the incident in the victim’s bedroom,
and the jury returned not guilty verdicts.5
ANALYSIS
I. Sufficiency of the Evidence
The defendant’s first contention is that there was insufficient evidence to support his
convictions. More specifically, he argues the victim’s testimony was not credible, as it was
“confusing” and “inconsistent,” in part because the victim testified that the final incident occurred
on January 20, 2000, whereas the State asserted that the incident occurred in 2001.
Where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560,
573 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier
of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992);
State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of justice
to determine the weight and credibility to be given to the testimony of witnesses. In
the trial forum alone is there human atmosphere and the totality of the evidence
cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Rape of a child is the “unlawful sexual penetration of a victim by the defendant or the
defendant by a victim, if such victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-
5
The record does not contain judgment forms for Counts 4 and 8.
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13-522(a) (2003). “Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body . . . into the genital
or anal openings of the victim’s . . . body[.]” Id. § 39-13-501(7) (2003). Aggravated sexual battery
is the “unlawful sexual contact with a victim by the defendant or the defendant by a victim
accompanied by any of the following circumstances: [t]he victim is less than thirteen (13) years of
age.” Id. § 39-13-504(a)(4) (2003). “Sexual contact” is defined as “the intentional touching of the
victim’s, the defendant’s, or any other person’s intimate parts, . . . if that intentional touching can
be reasonably construed as being for the purpose of sexual arousal or gratification.” Id. § 39-13-
501(6).
In the present case, the victim recounted three separate occasions in which the defendant
committed sexual acts upon her. She described the final incident in the bathroom with the defendant,
which occurred around the time her youngest brother was born. Although the victim testified that
this occurred in 2000, when her brother was born, the victim’s mother stated, as we have said, that
the brother was born in 2001, the year the indictment alleged that the final act had occurred. Her
testimony was that the defendant placed his penis in her mouth, had her touch his penis with her
hand, and touched her breasts. During the same incident, the defendant had the victim sit on his lap
and he penetrated her vagina with his penis. Next, she described the first incident, which occurred
when she was in kindergarten. She told the defendant her teeth hurt, and he placed his penis in her
mouth and moved her head back and forth. In addition, he placed the victim’s hand on his penis and
made her masturbate him. She further described an incident when the defendant came into her
bedroom and placed his penis in her mouth and made her touch his penis with her hand, although
the jury acquitted the defendant on the two counts related to that incident.
Further, we note that the results of the victim’s medical examination revealed a hymenal tear
caused by penetration which was consistent with the account of vaginal penetration of the victim by
the defendant. Further corroborating testimony was heard by the jury, including the testimony of
Gallion, Dupree, and Scretchen, each of whom recounted what the victim had told them concerning
sexual contact between herself and the defendant. We conclude a rational trier of fact presented
with the proof in the instant case could have found beyond a reasonable doubt that the defendant was
guilty of these offenses. Any issues related to the credibility of the victim’s testimony were resolved
by the jury in favor of the State and are not subject to review by this court. State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984). Additionally, we must presume that the jury has resolved all
conflicts in the testimony in favor of the State. State v. Cabbage, 571 S.W.2d 832, 834 (Tenn. 1978).
It is not the prerogative of this court to revisit questions of witness credibility on appeal, that function
being within the province of the trier of fact. See generally State v. Carey, 914 S.W.2d 93, 95 (Tenn.
Crim. App. 1995); State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).
The defendant also contends that the evidence presented does not support a conviction on
Count 1 to the lesser-included offense of aggravated sexual battery, as, in his words, “the testimony
of the victim describes Rape of a Child and the jury chose to disbelieve that claim.” It is clear in
Tennessee that aggravated sexual battery is a lesser-included offense of rape of a child. See State
v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Elkins, 83 S.W.3d 706, 713 (Tenn. 2002). The
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defendant’s “all or nothing” argument, that because the jury rejected the offense of rape of a child
in Count 1 he should not be convicted of anything, is similar to those arguments which provided, in
part, impetus for our supreme court to adopt the current lesser-included offense analysis in State v.
Burns, 6 S.W.3d 453, 466 (Tenn. 1999) (holding that under the old system, juries were forced “into
an ‘all or nothing’ decision that, unfortunately, is likely to be resolved against the defendant, who
is clearly guilty of ‘something’”). Here, the victim testified that when she was in kindergarten, the
defendant placed his penis in her mouth. Obviously, the jury was convinced that, in Count 1, the
defendant was guilty of the lesser-included offense, which we have stated is both “a prerogative that
the jury has under our system of justice and a right to which an accused is entitled.” State v. Hicks,
835 S.W.2d 32, 36 (Tenn. Crim. App. 1992). Accordingly, we conclude that the evidence is
sufficient to support the convictions.
II. Trial Court Error
A. Defendant’s Motion to Strike Two Jurors for Cause
The defendant contends the trial court erred when it denied his motion to strike two jurors
for cause. The State responds that the two challenged jurors did not sit on the jury but were excused
by the trial court, although not for cause, and thus this issue is without merit.
The purpose of voir dire is to ensure that jurors seated at trial are competent, unbiased, and
impartial. See State v. Mann, 959 S.W.2d 503, 533 (Tenn. 1997). The trial court is granted broad
discretion to decide the manner in which voir dire will be conducted, and its decisions in this regard
will not be disturbed on appeal absent a showing of abuse of discretion. See State v. Stephenson,
878 S.W.2d 530, 540 (Tenn. 1994). Moreover, unless there has been clear abuse, the trial court’s
discretion in determining the qualifications of jurors is not subject to review. See Lindsey v. State,
189 Tenn. 355, 366-67, 225 S.W.2d 533, 538 (1949) (“The judges of the various circuit and criminal
courts are of necessity given wide discretion in determining the qualification of jurors and their
discretion is not subject to review ‘except in cases where it is clearly made to appear it has been
abused.’”) (citation omitted).
In the present case, the defendant moved to strike two jurors for cause. The trial court denied
the motion, stating, “No, I’m going to deny both of them. I don’t think you established them. I’ll
excuse them, but not for cause.” The defendant did not ask for clarification as to the basis of the trial
court’s actions, i.e., whether the removal of the two jurors would count against the defendant’s
peremptory allotment. On appeal, the defendant does not assert either that he exhausted his
peremptory challenges or that the jury that heard the case was not fair or impartial. We have
previously held that “[i]t is only where a defendant exhausts all of his peremptory challenges and is
thereafter forced to accept an incompetent juror can a complaint about the jury selection process have
merit.” State v. Paul Dennis Reid, Jr., No. M1999-00803-CCA-R3-DD, 2001 WL 584283, at *20
(Tenn. Crim. App. May 31, 2001) (citing State v. Coury, 697 S.W.2d 373, 379 (Tenn. Crim. App.
1985)), aff’d, State v. Reid, 91 S.W.3d 247 (Tenn. 2002). Our holding in State v. Evangeline Combs
and Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD, E2000-02800-CCA-R3-CD, 2002 WL
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31118329 (Tenn. Crim. App. Sept. 25, 2002), perm. to appeal denied (Tenn. Jan. 27, 2003), resolves
this issue in favor of the State:
The trial court has wide discretion in ruling upon the qualifications of a juror.
State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). When the trial
court erroneously refuses to excuse a juror for cause, the error is harmless unless the
jury that heard the case was not fair and impartial. State v. Thompson, 768 S.W.2d
239, 246 (Tenn. 1989). It is well-settled that a defendant who disagrees with a trial
court’s ruling on juror challenges “for cause” must, in order to preserve the claim that
the ruling deprived him of a fair trial, first utilize such peremptory challenges as he
has available to remove the jurors. State v. Howell, 868 S.W.2d 238, 248 (Tenn.
1993). The trial court’s failure to properly exclude a juror for cause is grounds for
reversal only if the defendant has exhausted all of his peremptory challenges and an
incompetent juror is then forced upon him. Ross [v. Oklahoma], 487 U.S. [81,] 89,
108 S.Ct. [2273,] 2279 [(1988)]; State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990).
Id. at *36. The two jurors of whom the defendant complains did not sit on his jury. Neither has the
defendant asserted that he was forced to utilize all of his peremptory challenges to excuse the jurors,
thereby being forced to accept an incompetent one in their stead. Finally, the defendant has not
asserted that the jury that actually heard the case was not fair and impartial. This issue is without
merit.
B. Prior Criminal Convictions
The defendant filed a motion in limine to exclude evidence of his prior convictions for
possession of a firearm by a convicted felon and receiving stolen property, arguing the prejudicial
effect of the convictions “clearly outweigh[s] the probative value of such convictions as to the
defendant’s voracity [sic]” and therefore should not be allowed for impeachment purposes.
Impeachment by a prior conviction is governed by Tennessee Rule of Evidence 609(a), which
provides as follows:
Impeachment by evidence of conviction of crime.
(a) General Rule.--For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime may be admitted if the
following procedures and conditions are satisfied:
(1) The witness must be asked about the conviction on cross-examination.
If the witness denies having been convicted, the conviction may be established by
public record. If the witness denies being the person named in the public record,
identity may be established by other evidence.
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(2) The crime must be punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted or, if not so punishable,
the crime must have involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal prosecution,
the State must give the accused reasonable written notice of the impeaching
conviction before trial, and the court upon request must determine that the
conviction's probative value on credibility outweighs its unfair prejudicial effect on
the substantive issues. The court may rule on the admissibility of such proof prior
to the trial but in any event shall rule prior to the testimony of the accused. If the
court makes a final determination that such proof is admissible for impeachment
purposes, the accused need not actually testify at the trial to later challenge the
propriety of the determination.
Tenn. R. Evid. 609(a).
Two factors should be considered when deciding whether the probative value of a prior
conviction outweighs its unfair prejudicial effect on the substantive issues of a case. State v. Mixon,
983 S.W.2d 661, 674 (Tenn. 1999). First, “[a] trial court should . . . analyze the relevance the
impeaching conviction has to the issue of credibility.” Id. (citing Neil P. Cohen et al., Tennessee
Law of Evidence § 609.9 at 376 (3d ed. 1995)). Second, if the trial court finds that the prior
conviction is probative of the defendant’s credibility, then the court should “‘assess the similarity
between the crime on trial and the crime underlying the impeaching conviction.’” Id. (quoting Neil
P. Cohen et al., Tennessee Law of Evidence § 609.9 at 376 (3d ed. 1995)). The second criterion is
particularly important because in cases where “an impeaching conviction is substantially similar to
the crime for which the defendant is being tried, there is a danger that jurors will erroneously utilize
the impeaching conviction as propensity evidence of guilt and conclude that since the defendant
committed a similar offense, he or she is probably guilty of the offense charged.” Id. (citing State
v. Barnard, 899 S.W.2d 617, 622 (Tenn. Crim. App. 1994); State v. Farmer, 841 S.W.2d 837, 839-40
(Tenn. Crim. App. 1992); Long v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980)). The more
similar the impeaching conviction is to the trial offense, the greater the risk of a prejudicial effect
to the defendant. Id.
In addition to evaluating the probative value versus the unfair prejudicial effect, a trial court
should make findings on the record when deciding whether to admit a prior conviction for the
purposes of impeachment:
Tennessee case authority strongly urges judges to explicitly state, on the
record, their reasons for allowing or disallowing a criminal conviction to be used for
impeachment under Rule 609. The trial court should carefully explain any balancing
of factors. Without this record, it will be difficult for appellate courts to determine
whether the balancing test was properly applied.
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Neil P. Cohen et al., Tennessee Law of Evidence § 6.09[14][b] (4th ed. 2000) (footnotes omitted).
The trial court’s decision to admit prior convictions for impeachment purposes will not be reversed
on appeal unless it appears from the record that the trial court abused its discretion. State v. Blanton,
926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).
During the pretrial hearing, the court heard arguments as to the admissibility of the
defendant’s prior convictions for impeachment purposes:
[DEFENSE COUNSEL]: . . . I would direct the Court’s attention to the motion in
limine regarding the use of my client’s prior convictions for impeachment purposes
and my move or my motion to eliminate that evidence pursuant to Rule 609 of the
Rules of Evidence.
My client has several convictions, I believe four. Of particular concern, are
the two convictions for aggravated sexual battery. Incidently [sic] 6 of the 12 counts
of the indictment that we are here on trial for today are for aggravated sexual battery.
I think it is clear that under the Rules the probative value of those convictions as it
relates to my client’s veracity is clearly outweighed by the risk of unfair prejudice.
And so I would ask the Court for a ruling to direct the District Attorney not to ask
about those convictions.
[THE STATE]: Your Honor, the State will concede that.
THE COURT: All right. That does that.
[THE STATE]: The State would submit that it is proper, that if the defendant
testifies that we be permitted to question him about other felony convictions. One
is the possession of a weapon by a convicted felon. The other is a possession or
concealment of stolen property. But those are not related to this type of offense, and
so there is no risk of unfair prejudice.
[DEFENSE COUNSEL]: Judge, my response to that would be that I think clearly
the conviction for concealing stolen property, I think it’s receiving stolen property.
To be candid with the Court, I think that does go to veracity, and so I’m not going to
object to that.
However, the possession of a weapon I don’t think that goes directly to
veracity, and certainly I think the prejudicial value of it would outweigh any
probative value it would have with respect to my client’s truthfulness.
THE COURT: What is the date of the weapon’s [sic] conviction?
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[THE STATE]: Your Honor, I have a copy of the judgment. It is June the 29th of the
year 2000.
THE COURT: Well at this point in time, I don’t think there is any way that the Court
could tell with regard to this matter, because I don’t know what the testimony is. I’ll
have to wait and see what the testimony is with regard to this matter. And at the
proper time before the State attempts to ask any questions, I would have to know.
I would say preliminarily though, I think the State would have the right to ask it.
[DEFENSE COUNSEL]: Judge, there is one more motion.
The trial court took no further action on the motion and made no findings on the record
concerning the probative or prejudicial value of the prior firearm conviction. The only mention of
the conviction at trial was when defense counsel asked the defendant on direct examination if he had
been convicted of receiving stolen property and possession of a firearm by a convicted felon, to
which the defendant responded affirmatively. The State did not ask about the convictions on cross-
examination.
On appeal, the defendant argues that the trial court erred when it “failed to rule on the Motion
and defense counsel was forced to inquire as to the conviction as a matter of strategy lest the
prosecution be able to bring it out on cross-examination.”
Although prior to his testimony, the defendant was on notice that the court was of the
opinion, “preliminarily,” that evidence of the conviction was admissible for impeachment purposes,
it was apparent that the trial court had not made a final ruling on this issue. However, without asking
that the court do so, the defendant was asked about this conviction during his direct examination.
Most importantly, even if we were to conclude the court erred in not ruling on the motion or in
admitting the conviction, we conclude the error was harmless. We note especially the lack of
similarity to the offenses charged. Considered in light of the entire proceedings and the proof
presented at trial concerning the multiple sexual acts committed by the defendant upon the victim,
it is not reasonable to suppose that this brief reference to a prior weapon conviction had any impact
on the jury’s verdicts. See Tenn. R. Crim. P. 52(a); see also Tenn. R. App. P. 36(b).
III. Sentencing
As to sentencing, the defendant contends the trial court erred in ordering consecutive
sentences. Additionally, the defendant asks us to review the trial court’s application of enhancement
factors, as well as the consecutive sentences, in light of Blakely v. Washington, 542 U.S. __, 124 S.
Ct. 2531 (2004).
When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
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(2003). This presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the trial court's
determination of controverted facts as the trial court's determination of these facts is predicated upon
the witnesses’ demeanor and appearance when testifying.
In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001).
The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S .W.2d at 169.
The only testimony at the sentencing hearing was from the defendant, who indicated he
wanted to “address the Court”:
Well, I just wanted, I know this is the time where I supposed to maybe ask for
leniency and things of that nature. I won’t do that. But I will ask that the Court take
into consideration the miss, the persecutory [sic] misconduct which carried on in the
courtroom by witness tampering, when the prosecution during recess engaged in a
lengthy conversation after examination with [B.W.] before the defense had the
opportunity to cross examine her. And I think if the Court, which I’m sure the Court
was not aware of this was going on, but you and I and Ms., the prosecutor is aware
of. I want to bring this and make sure it be [sic] on record, so.
At the conclusion of the sentencing hearing, the parties agreed that the defendant was a
Range II, multiple offender. The trial court applied the following enhancement factors to Counts 2,
3, 6, and 7: (2), the defendant has a previous history of criminal convictions or criminal behavior
in addition to those necessary to establish the appropriate range; (14), the felony was committed
while on any of the following forms of release status if such release is from a prior felony conviction:
probation; and (16), the defendant abused a position of public or private trust. See Tenn. Code Ann.
§ 40-35-114(2), (14)(C), (16) (2003). On Counts 1 and 5, Class B felonies, the court applied no
enhancement factors and sentenced the defendant to twelve years, the minimum within the range.
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On Counts 2 and 3, Class A felonies, the court began at the midpoint in the range and enhanced both
sentences to thirty-six years. On Counts 6 and 7, Class B felonies, the court began at the bottom of
the range and enhanced both sentences to fifteen years. The trial court ordered Counts 2 and 3 to be
served consecutively and all other counts to be served concurrently.
The defendant initially asserts on appeal that the trial court erred in imposing consecutive
sentences on Counts 2 and 3, rape of a child. We disagree.
In ordering consecutive sentencing, the trial court stated, “I don’t know when [the defendant]
would not be a threat to the community,” and then agreed with the State that two of the criteria listed
in Tennessee Code Annotated section 40-35-115(b) applied:
(2) The defendant is an offender whose record of criminal activity is extensive;
(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 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[.]
Tenn. Code Ann. § 40-35-115(b)(2), (5) (2003).
As to criterion (2), the defendant’s presentence report indicates he has the following
convictions in Tennessee: criminal trespassing, possession of drugs, child neglect, two counts of
aggravated child abuse in 1998, and two counts of aggravated sexual battery in 1988. Further, the
defendant pled guilty in 2000 to receiving stolen property and possession of a firearm by a convicted
felon in Kentucky. Additionally, as to criterion (5), the defendant was convicted of six statutory
offenses arising from two separate occurrences with his stepdaughter, a minor. These undetected
sexual encounters occurred over a span of five years between the time the victim was in kindergarten
until she was in fifth grade. According to the victim’s testimony and her statements to other
witnesses, she said that the abuse included vaginal intercourse, fondling of her breasts, oral sex, and
masturbation of the defendant. The vaginal intercourse made the victim’s vagina and stomach hurt
and made her feel “kind of sick.” Additionally, the victim was afraid to tell anyone because the
defendant threatened to hurt or kill her or her mother, and she was still undergoing therapy at the
time of sentencing. The record fully supports the trial court’s determination as to the imposition of
consecutive sentencing.
In a supplemental brief, the defendant also asks us to review the application of enhancement
factors as well as the imposition of consecutive sentencing in light of the recent landmark United
States Supreme Court decision in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).
However, subsequent to the briefs being filed in this matter, our supreme court determined that
Blakely is not applicable to Tennessee’s sentencing procedures. See State v. Gomez, __ S.W.3d __,
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slip op. at 27 (Tenn. 2005) (“Tennessee’s sentencing structure does not violate the Sixth
Amendment.”).
Accordingly, we conclude the Blakely decision does not affect the length or manner of
service of the defendant’s sentences, which, we conclude, are supported by the record.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the defendant’s convictions
and sentences.
___________________________________
ALAN E. GLENN, JUDGE
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