IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 22, 2003 Session
STATE OF TENNESSEE v. FLOYD “BUTCH” WEBB
Direct Appeal from the Circuit Court for Rhea County
No. 15551 J. Curtis Smith, Judge
No. E2002-01989-CCA-R3-CD
February 3, 2004
The appellant, Floyd “Butch” Webb, was convicted by a Rhea County jury of one count of
aggravated sexual battery, a Class B felony; two counts of sexual battery, Class E felonies; and four
counts of child abuse, Class A misdemeanors. Following a sentencing hearing, the trial court
imposed a total effective sentence of twelve years to be served in the Tennessee Department of
Correction. On appeal, the appellant contends that (1) the trial court erred by admitting evidence of
a fresh complaint by a child victim; (2) the trial court erred by allowing a witness to testify about
medical records of which she was not the custodian; and (3) the sentence imposed by the trial court
was excessive. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.
NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined.
JOSEPH M. TIPTON, J., filed a separate concurring opinion.
B. Jeffery Harmon, Jasper, Tennessee, for the appellant, Floyd “Butch” Webb.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and Will Dunn, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Factual Background
At trial, the fifteen-year-old victim testified that she was born on May 21, 1986. On her
eighth birthday, her mother married the appellant. Initially, the victim “really liked” the appellant,
but as time passed their relationship became “mixed up.” The victim related that before her ninth
birthday, the appellant “started getting a little rough with [her].”
The victim testified that in June 1995, the family lived in a mobile home on Cottonport Road
in Rhea County, Tennessee. The victim stated that one night,
I was in bed asleep and [the appellant] came in my room, it was
around 1:00 or 1:30 [a.m.], right after he got off work, and he came
in and laid down on my bed and he started touching my breasts and
my vagina. . . . I just laid there and acted like I was asleep, hoping he
would just go away.
The victim stated that the appellant was in her room for approximately five to ten minutes. She did
not understand what the appellant was doing to her, but it scared her. The victim related that the next
morning, the appellant told her in a threatening manner not to tell her mother, “that it would just be
between us.” Because the victim believed that her mother loved the appellant and would be
heartbroken if she knew the truth, and because the victim was afraid of the appellant, she did not tell
her mother what had happened.
The victim testified that around July 4, 1995, when she was nine years old, the appellant
again came into her room. According to the victim, when the appellant returned home from work
around 1:30 a.m., he got into the victim’s bed and began rubbing her breasts and vagina. The victim
claimed that the appellant did this “[j]ust about every night through [the] whole month [of July].”
Each night the appellant came into the victim’s room, he stayed approximately five to ten minutes,
and the next morning warned the victim not to tell anyone. The victim related that she once asked
the appellant to stop, but the appellant became angry and gave the victim “a whipping.”
The victim testified that one evening in November 1995, while the appellant’s sister and
brother-in-law were visiting from Alabama, the appellant came into the victim’s bedroom wearing
a Batman mask. The victim testified, “I just started screaming, and [the appellant’s sister] . . . came
in my room and tried to calm me down.” After the appellant’s sister and brother-in-law left and the
victim’s mother went to bed, the appellant returned to the victim’s bedroom. The victim testified
that “[h]e started petting me and telling me he was sorry for scaring me and then he started back in
with the same stuff rubbing my breasts and my vagina.” The victim resisted by pushing the
appellant’s hand away, but the appellant would not stop.
In December 1995, the victim’s mother was homebound due to her pregnancy with the
victim’s sister and was required to stay in bed or on the couch. The victim claimed that while her
mother was homebound, the appellant “would hold me down [o]n my bedroom floor. He would get
me in a headlock. He would act like he was tickling me and then he would just start messing around
and rubbing my breasts and vagina again.” The victim testified that one day the appellant “put his
fingers inside me.”
The victim testified that one morning between January and May 1996, “I woke up . . . and
there was blood all in my bed. . . . [My mother] thought I had started my period early . . . , [but the
appellant] told her no, that I just had real bad bowel problems.” According to the victim, the
appellant had “penetrated [her] for the first time” the previous night and “[i]t really hurt.” The
victim testified that because there were many incidents, she was unable to recall the precise dates
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that the appellant sexually abused her. The victim stated that she had her tenth birthday in May of
1996. At that time, the appellant was her stepfather and she called him “Daddy.”
The victim testified that the family lived in the mobile home on Cottonport Road for
approximately two years. Thereafter, the family moved to Mobile, Alabama. The victim related that
while living in Alabama, the appellant decided that the victim should be homeschooled rather than
attend public school. Her mother did not object. The victim testified that the family lived in
Alabama from “July to Halloween, [1996].” The family then returned to Tennessee.
In May 1998, when the victim was twelve years old, the family lived in a townhouse in the
Hidden Valley Apartments in Dayton, Tennessee. The victim’s mother worked at the Bi-Lo Grocery
Store, generally closing the store at night. The appellant was unemployed. The victim testified that
one day “I was sitting [o]n the floor and [the appellant] told me to . . . get up on his bed and I did.
. . . [H]e got on top of me and he started touching my vagina and he put his penis inside my vagina.”
The appellant pushed the victim’s underwear and shorts to the side in order to penetrate her. The
victim testified that she was scared and asked the appellant to stop, but he told her to “shut up.” The
appellant then began moving back and forth. This continued for approximately five minutes. When
the appellant finished, he went into the bathroom and the victim went downstairs to “clean [herself]
up.” As she cleaned herself, the victim discovered a “[w]hite slimy clear liquid,” but she did not
know what it was. The victim testified that this was the first time the appellant had sexual
intercourse with her. The victim maintained that because the appellant threatened to kill her, her
mother, and himself, she did not tell her mother about these incidents.
The victim testified that the family subsequently moved into a house on Graham Street,
where they lived from 1998 to 2000. The victim attempted to have friends over to visit, but the
appellant would not allow it. The victim testified that her best friend, Amy Yearwood, lived across
the street. However, she stated that visiting Amy was difficult. The victim explained that when she
went to Amy’s house, she was only allowed to go onto Amy’s porch. She further explained that she
was not allowed to be alone with Amy, and the appellant was always nearby.
The victim testified that in March 2000, her mother worked at the state health department.
In order to save money, her mother ate lunch at home, generally around 1:00 p.m. One day at 11:00
a.m., the appellant told the victim to come into his bedroom. The victim related that the appellant
then “started to have sex with me again,” penetrating her with his fingers. Shortly thereafter, the
victim’s mother came home early for lunch and discovered the appellant on top of the victim. The
victim related that her mother looked angry and confused. However, the appellant told the victim’s
mother that he was “just tickling” the victim. The victim got off the bed and went into the kitchen.
The victim testified that she was still afraid to tell her mother about the sexual abuse. The
victim was concerned that her mother would not believe her. The victim testified that by March
2000, the appellant had adopted her. She related that she had been excited about the adoption,
hoping it would change things.
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The victim testified that she eventually confided to Amy Yearwood about “what [she was]
going through,” but told Amy not to tell anyone. Thereafter, Amy often came to the house uninvited
to check on the victim. On one occasion, Amy came over when the victim was in the appellant’s bed
and the appellant was attempting to have sex with her. According to the victim, Amy began beating
on the front door. Finally, the appellant told the victim, “just go answer it.” The victim testified that
she opened the front door wearing a bathrobe. However, because she was upset and afraid, she did
not invite Amy to come inside the house.
The victim testified that on June 1, 2000, her mother finally learned of the abuse. According
to the victim, that evening her mother and the appellant argued about the house. Thereafter, the
victim’s mother took the victim and her sister to their maternal grandparent’s house. On the way to
their grandparent’s house, the victim’s mother stopped at Bobby Riley’s house because she was
concerned about the appellant and wanted Riley, the appellant’s friend, to check on him. While at
Riley’s house, Riley asked the victim if anything was happening between her and the appellant. The
victim testified that she told him, “no,” and went to play. After leaving Riley’s house, the victim’s
mother again asked the victim if anything was happening between her and the appellant, and the
victim told her about the abuse.
The victim testified that her mother was devastated and left the appellant. Approximately
one week later, the victim’s mother took the victim to talk with Dana Morgan of the Department of
Children’s Services (DCS) and with Investigator Chris Sneed. The victim was subsequently
examined by Kathy Spada at the Children’s Advocacy Center (CAC). At trial, the victim
acknowledged that “something . . . happened to [her] when [she was] a small child before [the
appellant] ever came into the family.” However, she insisted that she did not remember the incident.
On cross-examination, the victim acknowledged that there were times she was
“disappointed” in the appellant. However, she admitted that she had told others that she was happy
about the adoption and that if her mother and the appellant ever “broke up,” she wanted to live with
the appellant. The victim acknowledged that prior to the adoption, she was required to talk with a
psychologist and never mentioned any sexual abuse. The victim also conceded that the appellant
was not present on the numerous occasions she told her mother that there was “nothing going on.”
At trial, Pamela Webb, the victim’s mother, testified that she married the appellant in May
1994 and the family moved into a mobile home on Cottonport Road near the home of the appellant’s
mother. Initially, Pamela worked the first shift at Robinson’s Manufacturing and the appellant
worked the second shift at Kayser-Roth.1 Pamela testified that the first years of the marriage were
“real good.” However, as time passed, the relationship between the appellant and the victim did not
appear to be normal. Pamela explained, “It’s just like he would scare her and make her cry. I didn’t
know it at the time, I guess I know now, he was intimidating her.”
1
Because the appellant, the victim, and two witnesses share the last name “Webb,” we have elected to utilize
first names for the purpose of brevity. Additionally, we have elected to use the first names of the minor witnesses. W e
intend no d isrespect to these individuals.
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Pamela testified that in July 1995, the family moved to Alabama where they lived
approximately six months. While in Alabama, the appellant was employed. Because the appellant
did not approve of the schools in Alabama, he and Pamela decided to homeschool the victim who
was in the third grade. Initially, Pamela taught the victim. However, at the end of October the
family moved back to Tennessee, living in a townhouse at the Hidden Valley Apartments. Pamela
related that she returned to work at the Bi-Lo Grocery Store, again working odd hours and often
closing the store. The appellant, who was employed as a maintenance man at the apartments, began
teaching the victim.
Pamela testified that while living in the townhouse, the victim had no visitors and the
appellant did not allow the victim to go outside. Pamela acquiesced because the appellant was “the
head of the household” and, thus, “made the rules.” According to Pamela, the victim’s attitude
toward the appellant changed at this time. The victim began acting as though she were afraid of the
appellant. Pamela testified that she asked the victim “if there was something she needed know,” but
the victim always answered, “No.” Pamela stated that she had no reason to believe that the victim
was not telling the truth.
A year later, the family moved into a house on Graham Street. Pamela testified that the
appellant continued to homeschool the victim, while Pamela worked at various jobs. Pamela stated
that the victim was homeschooled through the eighth grade. Although Pamela often asked the
appellant to allow the victim to return to public school, the appellant “was adamant about home
schooling [sic]” and became angry when she raised the issue. Pamela further testified that the
appellant did not approve of the victim being taken to the doctor. She stated that if something
happened to the victim, she was treated at home, “unless it was something that was really major that
I had to take her to a doctor.” Pamela testified that the appellant did not allow her or the victim to
attend church. She explained, “It was easier to stay home than it was to come home and fuss and
fight.”
Pamela testified that when the victim went outside to play, either she or the appellant had to
be outside with her. Moreover, the victim was only allowed to go outside for short periods of time
and was confined to the yard. Pamela testified that the victim’s friend, Amy Yearwood, lived across
the street. The appellant did not allow the victim to go to Amy’s house for any length of time or to
spend the night with her. Additionally, the appellant did not allow the victim to have friends spend
the night at their home. The appellant occasionally allowed the victim to play ball across the street
with the neighborhood children, but either Pamela or the appellant had to watch the victim while she
played.
Pamela testified that between January and May 1996, the victim “woke up one morning and
she kept hollering for me to come in there and I come in there and there was blood and stuff on the
sheets . . . .” Pamela believed that the victim had started her period. However, the appellant insisted
that the victim was too young to have started her period and probably had an infection “in her
bowels.”
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While the family lived in the house on Graham Street, Pamela began working at the state
health department. Pamela testified that she worked from 8:00 a.m. to 4:30 p.m., taking her lunch
break at 1:00 p.m. In order to save money, she ate lunch at home. On March 9, 2000, Pamela came
home early for lunch. She testified,
[W]hen I walked in the front door our small daughter, Elizabeth, was
on the couch watching TV and I walked on through and start[ed] to
turn to go into the bedroom and [the appellant] was over top of [the
victim] and he kind of looked back at me and he started tickling her.
Although she felt odd, “[l]ike something wasn’t right,” she did not ask the victim about the incident.
During the last year of the marriage, the appellant’s attitude and temperament changed.
Pamela stated that the appellant was “hard” on the victim, claiming that the appellant said that “he
had to keep his thumb on [the victim] so she wouldn’t go bad.” According to Pamela, the appellant
“was in total control.” During this time, Pamela asked the victim “if there was anything I needed
to know,” but the victim always told her, “No.”
Prior to learning of the appellant’s sexual abuse of the victim, Pamela and the appellant had
an argument, although Pamela could not remember why they had argued. She stated that the
appellant was angry and “he broke up a lot of things in the house and the kids were in the bedroom
and they were scared . . . .” Pamela informed the appellant that she was taking their daughters to her
father’s house, and she and the girls left. On the way to her father’s house, Pamela stopped at Bobby
Riley’s house because she wanted Riley to check on the appellant who had been very upset when she
left. While at Riley’s house, Riley spoke to the victim. Both Pamela and Riley asked the victim if
there was anything she needed to tell them. Pamela testified that the victim “just dropped her head
and said, ‘No, I’m going to go play.’”
Pamela testified that when she and her daughters left Riley’s house, she again questioned the
victim. The victim replied, “I don’t want to tell you.” However, the victim finally told Pamela about
the sexual abuse. Pamela testified, “I lost it, I broke down, I cried all the way to [my parents].”
Pamela related that it took her approximately a week to regain her composure, stating, “I couldn’t
believe I give him my kid and he took advantage of her.” On the same night that she learned of the
sexual abuse, she called Riley and told him to tell the appellant that she knew about the abuse.
Pamela testified that she did not go to the police immediately because she “didn’t know what
to do.” She finally called Dana Morgan at DCS after being told by her employer that if she did not
report the crimes, she would be guilty of “upholding” the appellant. Pamela testified that she and
the victim were subsequently interviewed by Investigator Sneed, who took items from her home for
DNA testing. Thereafter, Pamela scheduled a physical examination of the victim. Pamela stated that
as a result of the abuse, the victim had attempted to commit suicide several times and had been
hospitalized at Valley Hospital. She stated that the victim also “scratche[d] herself to get the pain
out.”
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On cross-examination, Pamela acknowledged that as part of the adoption process, the victim
was required to speak with a psychologist. She conceded that the psychologist never notified her of
any sexual abuse of the victim. Pamela denied telling Riley that she would not “press charges” if
the appellant would give her the house, insisting that she only asked Riley to tell the appellant that
she “wanted him out.” She acknowledged that she was intimidated by the appellant, whom she
claimed had become very controlling in the last four years of the marriage.
Investigator Chris Sneed, the chief investigator for the Dayton City Police Department,
testified at trial that on June 13, 2000, he was notified by DCS of the possible sexual molestation of
the victim. Investigator Sneed contacted the appellant in Alabama, and the appellant agreed to return
to Tennessee for an interview. Investigator Sneed and Dana Morgan, a DCS case worker, were
present at the interview on June 19, 2000. In their presence, the appellant signed a waiver and agreed
to provide a statement. At trial, Investigator Sneed read into the record the appellant’s statement,
which had been compiled from the notes taken by Investigator Sneed and Morgan at the interview.
Investigator Sneed testified that the statement as read adequately represented the statement given by
the appellant.
Investigator Sneed testified that he also questioned the victim and her mother. He went to
the family’s house on Graham Street and retrieved a bedspread and sheets, a blanket, a bathrobe, and
a sweatshirt to be sent to the Tennessee Bureau of Investigation Crime Laboratory for DNA testing.
Investigator Sneed conceded that by the time he collected these items, several weeks had elapsed
since the last alleged incident of sexual contact between the appellant and the victim. Moreover,
Investigator Sneed was uncertain if the evidence had been washed prior to testing. In any event, the
test results were negative “for anything that would have been evidence in this case.”
Matt Presley and his sister, Amy Presley, testified at trial. Matt testified that in 2000, he
lived with his parents on Graham Street, two houses down from the Webb family. He saw the Webb
family only “when they would clean out the yard or something.” He stated that in the neighborhood
there were approximately six children who played together. Matt testified that “once in a blue
moon,” the victim would come play with them, but generally the appellant kept her inside the house.
When the victim was allowed to play outside, it was for a short period of time and the door was kept
open so that her parents “could keep an eye on her.”
On cross-examination, Matt conceded that the appellant was not always at home and that at
times the victim was home with her mother. He further acknowledged that he had never been inside
the Webb home and knew nothing about the allegations made by the victim.
Amy Presley testified that she was raised by her grandmother, but often visited her parents
and brother on Graham Street. Amy stated that when she visited her family, she rarely saw the
victim. She related that when she did approach the victim, the appellant told the victim to come back
into the house. Both Matt and Amy testified that on Memorial Day 1999, their parents had a cookout
at their house. Matt, Amy, and Amy Yearwood walked to the victim’s house to invite her to the
party. Matt explained that “we knocked on the door and we didn’t get a response, so we knocked
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again. About 10 minutes later [the appellant] opened the door and we started to ask if [the victim]
could come out, and rudely he said no and slammed the door.”
At trial, Bobby Riley testified that he had known the appellant for twenty-five years and had
often visited the Webb family on Graham Street. Riley stated that on Memorial Day 2000, Pamela,
the victim, and Elizabeth came to his house in Mountain View. Pamela was visibly upset. Riley
testified that he asked the victim “if anything had been going on between her and [the appellant].”
Riley explained that as a result of that question, he went to the appellant’s house. Later that evening,
Pamela called Riley and asked him to talk to the appellant and tell him what had happened. Riley
stated that Pamela also asked him to tell the appellant that “if [the appellant] would get out . . . she
would leave it at that.”
The next day, Riley went to see the appellant at the house on Graham Street. Riley told the
appellant about the previous night and informed the appellant that the victim had told her mother
about the abuse. Riley related that initially the appellant acted shocked, but soon the shock turned
to anger. Riley testified that the appellant asked him what he should do and Riley told him, “If
you’re innocent, . . . [s]tay here and fight it till the end. . . . But if you have something to hide, Pam
is giving you a chance to get out and I would get out.” Shortly thereafter, the appellant went inside
to pack.
Riley testified that after the family moved to Graham Street, he never saw the victim without
the appellant being present. Riley found this to be unusual. He further testified that the police
subsequently asked him to wear a wire to record a conversation with the appellant. Riley agreed;
however, when Riley spoke with the appellant, the appellant said nothing incriminating.
Jamie Yearwood and her family lived on Graham Street across the street from the Webb
family. At trial, Jamie Yearwood testified that the Webb family moved into the house on Graham
Street in 1998. Her daughter, Amy, played with the victim, but the victim was only allowed to stay
for short periods of time and was rarely allowed to go inside the Yearwoods’ house. Once, the
victim was allowed to spend an hour at Amy’s birthday party. On another occasion, the victim was
allowed to come into the house to see Amy’s bedroom; however, the victim stayed only ten minutes,
claiming that “she had to leave or [the appellant] would get mad.” Yearwood estimated that Amy
had been inside the victim’s house approximately twenty times.
Yearwood testified that generally Amy and the victim would sit on the Yearwoods’ front
porch or the Webbs’ front porch to visit. When the victim came to visit on the Yearwoods’ front
porch, the appellant was always nearby. Yearwood could not recall a time when the victim was
allowed to visit without the appellant being somewhere he could “keep an eye on [her].” Yearwood
testified that in June 1999, she had colon surgery and was confined to her house until September
1999. Yearwood stated, “I spent a lot of time on my front porch and I observed almost every day
that when [the victim] was outside [the appellant] was outside and when [the appellant went] in [the
victim went] in.” Yearwood further testified that after catching the appellant staring at her through
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the window in his computer room, she stopped mowing her lawn. She never became friends with
the appellant or Pamela Webb, claiming that the appellant was a “secluded person.”
Amy Yearwood testified at trial that her front porch was only thirty steps from the victim’s
front porch, and the two girls could converse easily from their porches. Amy related that she became
friends with the victim approximately two months after the victim moved into the house across the
street. After approximately five months, Amy began going to the victim’s house, but the victim was
rarely allowed to come to Amy’s house. Amy further related that when she visited at the victim’s
house, “it was usually in the living room and [the victim’s] mom and dad were in the room always.”
When Amy and the victim were allowed to go into the victim’s bedroom, the door remained open
in order for the victim’s parents to hear their conversation.
Amy testified that the victim was allowed to visit on Amy’s front porch, but generally had
to return home within fifteen minutes. Moreover, the appellant was outside watching the victim
while she was at Amy’s house. Amy further testified that the victim was seldom allowed to play
with the children in the neighborhood. When the victim was allowed to play, the appellant told her
to come home after fifteen to twenty minutes. Amy testified that she occasionally saw the victim
roller skating or riding her bicycle, but the victim was not allowed to go around the block.
Amy testified that in the summer of 2000, she went to the victim’s house. Amy stated,
I went to the door and I knocked and knocked and it was like 15
minutes of standing there knocking and I wasn’t leaving, because I
knew she was there, and finally after about 15 minutes of knocking,
[the victim] came to the door and she was very upset. She’d been
crying.
Amy recalled that the victim was wearing a robe when she opened the door. Amy also recalled that
one Memorial Day the Presleys had a barbeque at their house. Amy and the Presley children went
to the victim’s house to invite her to the barbeque. They “knocked and knocked” at the victim’s
door, but there was no answer. Eventually, the appellant opened the door. Amy asked if the victim
could come to the Presley’s barbeque, but the appellant said, “No,” and shut the door in their faces.
Amy related that the appellant acted a little nervous and hostile, “like ya’ll leave me alone.”
The final witness for the State was Kathy Spada, a pediatric nurse practitioner at T.C.
Thompson Children’s Hospital at Erlanger. Spada testified that she was also employed at CAC,
where she treated children who have alleged sexual abuse. Spada explained her procedure for
treating children brought to CAC. Initially, she interviews the child, because “[i]t kind of gives me
an idea of what to look [for] on the medical exam.” Next, Spada conducts a general physical
examination, not emphasizing the “private area.” Finally, Spada conducts a genital examination.
Spada related that she had testified in more than seventy-five cases involving sexual abuse.
Spada testified that on July 3, 2000, the fourteen-year-old victim was brought to CAC by her
mother, Pamela Webb. The victim gave a history of improper touching, sexual intercourse, and oral
and anal penetration by her “stepfather.” Spada testified that the victim was soft-spoken, pleasant,
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and cooperative during the examination. Spada related that a genital examination revealed a “cleft”
on the victim’s hymen. Spada described the cleft as an irregularity that verified that “there had been
some pressure there on her hymen.” However, Spada conceded that she was unable to determine
what had caused the pressure. Spada testified that her findings were consistent with the victim’s
allegations of sexual intercourse.
Over the defense counsel’s objection, Spada was allowed to testify regarding her review of
medical records which contained the results of an examination of the victim by another doctor when
the victim was three years old. Spada testified that her review of the records revealed that at the time
of the examination, “[t]here was some concern about sexually explicit talk at home and evidently
the [m]om had taken the [victim] to be seen by this doctor.” According to the records, the doctor
had examined the three-year-old victim’s genital area, finding the area to be “within normal limits.”
The doctor found no trauma or tears, but noted that the outside of the genital area was “a little red.”
Spada testified that based upon her review of the report, she agreed with the doctor’s conclusion that
there was no evidence of sexual abuse of the three-year-old victim. On cross-examination, Spada
conceded that she was not a specialist in gynecology and that she had examined the victim on only
one occasion.
Viva Lee Webb, the appellant’s mother, testified on behalf of the appellant. Viva Lee
testified that when her son and Pamela married, they moved into a mobile home on Viva Lee’s
property on Cottonport Road. She related that the victim came to her house “all the time.”
According to Viva Lee, she and the victim had a good relationship, and she treated the victim as if
she were her granddaughter. She further testified that the victim often proclaimed that she loved the
appellant and “he was her real dad now.”
Viva Lee testified that the appellant and his family subsequently moved to Alabama, but
returned to Tennessee in the fall of 1996. She stated that she visited the family at Hidden Valley
Apartments, often coming over “unannounced.” Viva Lee testified that she “never saw anything that
bothered her.” She related that the victim was generally doing her chores or studying. The victim
acted normal around the appellant and never appeared to be avoiding him. According to Viva Lee,
the victim tried to “hug on” the appellant, but the appellant was not an affectionate person.
Viva Lee testified that she also visited her son’s family after they moved to Graham Street.
She stated that when she visited, the victim was often outside playing or across the street at her
friend Amy’s house. Viva Lee maintained that when the victim was outside, “no one would be
watching [her].” Moreover, when the appellant and his family lived in the mobile home on
Cottonport Road, the appellant allowed the victim to attend church with Viva Lee. The victim never
told Viva Lee about any sexual abuse.
Robert Wayne Reed, the appellant’s brother-in-law, testified at trial that he was the pastor
of a church in Alabama. He stated that he “really got to know” the appellant twenty-seven years
earlier when he married the appellant’s sister, Darlene. Reed related that he and Darlene attended
the appellant’s wedding and visited the family in Tennessee approximately twice a year.
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Reed testified that he had been with the victim when the appellant was not present. He
further related that he had observed the victim go outside and play without the appellant watching
her. Reed stated that at Thanksgiving, the family gathered to eat dinner and play games. The victim
“blended in,” doing what everyone else was doing. Reed testified that he was a proponent of
homeschooling. He testified that Pamela decided to homeschool the victim, but the appellant was
opposed to the decision.
Reed testified that the victim never appeared to be avoiding the appellant. Moreover, the
victim often told Reed and his wife that she loved the appellant and “always wanted to be with him.”
Reed testified that when the appellant decided to adopt the victim, the victim was excited about the
adoption. According to Reed, the victim had a good relationship with the appellant and never told
Reed or his wife about any sexual misconduct by the appellant. Reed stated that he never witnessed
any suspicious behavior between the appellant and the victim.
At trial, the appellant testified that he met Pamela in 1994 or 1995 and they soon married.
The appellant stated that he was aware of allegations that the victim had been molested when she
was three years old. According to the appellant, the subject was often discussed in the presence of
the victim, and the victim acted as though she remembered the abuse. “It’s been drilled in her so
much it’s like she remembered it all.”
The appellant testified that while he and his family lived in Alabama, his brother-in-law
suggested homeschooling the victim. The appellant and Pamela discussed the subject and Pamela
ultimately decided to homeschool the victim. Although the appellant was “skittish” about the
schools in Alabama, he believed the victim should attend public school.
The appellant testified that initially Pamela taught the victim. However, after the family
returned to Tennessee and Pamela returned to work at the Bi-Lo Grocery Store, the appellant
assumed the responsibility of teaching the victim. The appellant stated that the victim was not a
good student. In fact, because the victim had “slacked up,” the appellant considered having the
victim repeat a grade level. The appellant often restricted the victim’s freedom in an effort to
improve her schoolwork. According to the appellant, the victim had a bad temper and became “very
angry and stand and claw her arms and bite them and stand and shake . . . if I really get on to her.”
The appellant testified that the victim was allowed to go outside alone. The victim often
played basketball with Matt Presley and went shopping with Pamela. The appellant further related
that Pamela and her daughters went to Pamela’s mother’s house without him, occasionally staying
overnight. One year he bought the victim a pair of roller skates for Christmas, and the victim skated
at the apartments and “up and down” Graham Street. However, the appellant explained that when
they first moved to the house on Graham Street, he and Pamela limited the area where the victim was
allowed to play.
The appellant testified that occasionally the victim became angry with him, but generally “she
. . . hung on to me like a leech. . . . She’d come through the house grabbing, hugging.” The victim
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also asked to go places with the appellant and became upset if he did not allow her to go. When the
family lived on Graham Street, the victim’s friends, including Amy Yearwood, came to visit. The
victim also went to Amy’s house. The appellant testified that although he and the victim were often
outside at the same time, he was not “hang[ing] all over” the victim. The appellant explained that
he often worked on the car or in the yard.
The appellant testified that the victim called him “Daddy” even before he and Pamela were
married. Two to three years after they were married, the appellant began to consider adopting the
victim. When he told the victim, she was very excited. The victim never told the appellant that she
did not want to be adopted. The adoption became final in February 2000.
Regarding the incident when Pamela came home early for lunch, the appellant explained that
the victim had prepared and eaten breakfast, then crawled into the appellant’s bed. When he asked
the victim what she was doing, the victim responded that she was sick. The appellant told the victim
that she was not sick. He then rolled her over and told her to “get up.” The appellant claimed that
he tickled the victim around her collarbone and again told her to “get up.” At that time, Pamela
walked into the bedroom. The appellant testified that after the “tickling incident,” Pamela never
acted as though she did not want him around the victim or Elizabeth.
The appellant testified that shortly before the instant allegations, he and Pamela argued about
refinancing the house and opening a checking account for Pamela. Following the argument, the
appellant’s friend, Bobby Riley, came to the house to deliver a message from Pamela. Riley
informed the appellant of Pamela’s accusations, telling the appellant that he could not win and “[i]f
it was me I would get my stuff, get out, let her calm down and let it blow [over].” A few days later,
the appellant went to Alabama to visit his sister. Investigator Sneed contacted the appellant in
Alabama and asked him to return to Tennessee for an interview.
The appellant testified that the interview made him very uncomfortable. He further claimed
that the statement read by Investigator Sneed was not verbatim. The appellant testified that he told
Investigator Sneed and Dana Morgan that he did not commit the alleged acts against his daughter.
He also agreed to DNA testing. The appellant stated that he was arrested two months later.
On cross-examination, the appellant denied “keeping [the victim] captive” or monitoring the
victim’s conversations. He further denied “beating” the victim. The appellant was unable to recall
the alleged Memorial Day incident; however, he denied slamming the door on anyone. According
to the appellant, when the victim was twelve and thirteen years old, she wanted to start dating and
wearing makeup, but he would not allow it. The appellant acknowledged that he told Investigator
Sneed that he did not believe the victim had engaged in sexual intercourse. The appellant testified
that he believed the victim loved him and he did not understand why she made the allegations.
Based upon the foregoing testimony, the jury convicted the appellant of one count of
aggravated sexual battery, two counts of sexual battery, and four counts of child abuse. Following
the sentencing hearing, the trial court imposed an effective sentence of twelve years in the Tennessee
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Department of Correction. On appeal, the appellant contends that (1) the trial court erred by
admitting evidence of a fresh complaint by a child victim; (2) the trial court erred by allowing Kathy
Spada to testify about medical records of which she was not the custodian; and (3) the sentence
imposed by the trial court was excessive.
II. Analysis
A. Fresh Complaint
On appeal, the appellant complains that the trial court erroneously admitted fresh complaint
testimony by the victim. “[I]n cases where the victim is a child, neither the fact of the complaint nor
the details of the complaint to a third party is admissible under the fresh-complaint doctrine.” State
v. Livingston, 907 S.W.2d 392, 395 (Tenn. 1995). However, evidence in the nature of fresh
complaint may be admissible as substantive evidence if it satisfies a hearsay exception, or as
corroborative evidence if it satisfies the prior consistent statement rule. Id. The appellant contends
that neither of these exceptions was satisfied. The State asserts that the victim’s testimony did not
implicate the fresh-complaint doctrine, but instead was a legitimate part of her narrative.
At trial, the victim was allowed to testify over defense counsel’s objection to the following:
State: Did Amy [Yearwood] know what you were going
through?
Victim: Yes, sir.
State: Did you confide in her?
Victim: Yes, sir, I did.
State: Did you tell her not to tell?
Victim: Yes, sir.
We agree with the appellant that the testimony constituted fresh complaint by the child victim and
was improperly admitted into evidence. See State v. William Terrell Hampton, No. E2000-00582-
CCA-R3-CD, 2000 WL 1801859, at *4 (Knoxville, Dec. 8, 2000). However, the victim’s statement
was extremely brief and contained no details regarding the offenses. Moreover, Amy Yearwood did
not testify to what the victim allegedly told her, nor did she testify that she was aware that the victim
was being sexually abused. Under these circumstances, we are unable to conclude that the admission
of the fresh complaint more probably than not affected the outcome of the trial; thus, the error was
harmless. Tenn. R. App. P. 36(b); see also Hampton, 2000 WL 1801859, at *4.
B. Medical Records
The State anticipated that the defense would attempt to demonstrate the victim’s knowledge
of sexual matters by introducing evidence that the victim was sexually abused by someone other than
the appellant when she was three years old. Accordingly, the State asked nurse practitioner Kathy
Spada to review the medical records from an examination of the victim when she was three years
old. Spada was then asked to testify regarding her opinion of the results of the examination.
Defense counsel objected, asserting that Spada was not affiliated with the hospital or the doctor who
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conducted the examination and, therefore, could not lay the proper foundation for the introduction
of the records into evidence. However, the State maintained that it was not seeking to introduce the
medical records, but was only asking that Spada be allowed to “express an opinion based upon what
she . . . read in the report.” The trial court allowed the testimony.
On appeal, the appellant contends that the trial court violated the hearsay rule “by allowing
testimony regarding medical records by someone who was not the custodian or other qualified
witness.” However, our review of the record reveals that the trial court did not admit the testimony
under the business record exception to the hearsay rule. Instead, the trial court allowed Spada to
testify as an expert witness to her opinion, which opinion she based upon information contained in
the medical records. The medical records were not admitted into evidence.
“If scientific, technical, or other specialized knowledge will substantially assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.” Tenn. R. Evid. 702. An expert may base her opinion upon facts or data imparted to or
perceived by the expert prior to or at a hearing, and the facts or data need not be admissible if they
are the type of facts or data reasonably relied upon by experts in the particular field. Tenn. R. Evid.
703. The trial court shall disallow testimony in the form of an opinion if the underlying facts or data
indicate a lack of trustworthiness. Id. “Questions regarding the qualifications, admissibility,
relevancy, and competency of expert testimony are matters left within the broad discretion of the trial
court.” State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). This court will not overturn the trial
court’s ruling regarding the admissibility of expert testimony absent an abuse of discretion. Id.
Spada testified that the report revealed that at the time of the examination, “[t]here was some
concern about sexually explicit talk at home and evidently the [m]om had taken the [victim] to be
seen by this doctor.” The report further revealed that the treating physician found the three-year-old
victim’s genital area to be “within normal limits,” noting no trauma or tears. Spada testified that
based upon the information contained in the report, she agreed with the treating physician’s
assessment that there was no sign that the three-year-old-victim had been sexually abused.
The trial court erred by allowing Spada to testify to the contents of the twelve-year-old report.
However, under Rule 703, Spada was allowed to testify based upon her own experience, her
examination of the victim, and her review of the information contained in the report, that she opined
that the victim had sustained her injuries since the examination at age three. Tenn. R. Evid. 703.
Regardless, an error will not be grounds for reversal unless it affirmatively appears to have affected
the result of the trial on the merits. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). In light of the
overwhelming evidence against the appellant, we are unable to conclude that Spada’s improper
testimony affected the outcome of the trial. Accordingly, the error was harmless.
We note that during Spada’s testimony, the trial court failed to designate Spada as an expert
witness. However, the trial court subsequently instructed the jury regarding expert testimony,
stating, “I believe Mrs. Spada was the only witness that appeared [at] trial that comes under that
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category.”2 Moreover, Spada testified at trial that she had been employed as a pediatric nurse
practitioner at T.C. Thompson Children’s Hospital for seven years and that she also worked at CAC,
examining children who had allegedly been sexually abused. Spada further related that she
“work[ed] at the sexual assault center and assess[ed] adults as well.” Spada testified that she had
a master’s degree in nursing, was a member of the International Forensic Nurse’s Association, and
had taken multiple courses on forensic examination. Based upon this evidence, we conclude that
Spada was qualified to testify as an expert.
C. Sentence
Finally, the appellant contends that the sentence imposed by the trial court was excessive.
When an appellant challenges the length, range, or manner of service of a sentence, it is the duty of
this court to conduct a de novo review with a presumption that the determinations made by the trial
court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this presumption of
correctness 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). If the record demonstrates that the trial court failed to consider the sentencing
principles and the relevant facts and circumstances, review of the sentence will be purely de novo.
Id.
In conducting our review, this court must consider (1) the evidence, if any, received at trial
and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the
arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of the
offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant on his
own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-
35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168. The burden is on
the appellant to show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.
The appellant was sentenced as a Range I standard offender, for which the applicable range
is eight to twelve years for Class B felonies and one to two years for Class E felonies. Tenn. Code
Ann. § 40-35-112(a) (1997). The presumptive sentence for Class B and E felonies is the minimum
within the applicable range if there are no enhancement or mitigating factors. Tenn. Code Ann. §
40-35-210(c). If the trial court finds that such factors do exist, the court must start at the
presumptive sentence, enhance the sentence within the range as appropriate for the enhancement
factors, and then reduce the sentence within the range as appropriate for the mitigating factors. Tenn.
Code Ann. § 40-35-210(e). There is no mathematical formula for valuating factors to calculate the
appropriate sentence. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the
weight to be afforded an existing factor is left to the trial court’s discretion so long as the trial court
2
The app ellant did not object to the trial court’s instruction regarding expert testimony or to the trial court’s
assertion that Spad a had testified as an exp ert witness.
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complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record.” Id. at 475-76.
At the sentencing hearing, the State presented no testimony, relying solely upon the
presentence report. Viva Lee Webb, the appellant’s mother, and Robert Reed, the appellant’s
brother-in-law, testified on behalf of the appellant. The appellant’s mother testified that she had
never had any problems with the appellant. She further related that because she was disabled, she
depended on the appellant to take her to doctor’s appointments and maintain her yard, house, and
vehicle. Reed testified that he had never known the appellant to be in any trouble. Both Reed and
the appellant’s mother testified that the appellant would not be a threat to society upon release.
Based upon the foregoing testimony, the presentence report, and the arguments of counsel,
the trial court applied enhancement factor (15), i.e., the appellant abused a position of public or
private trust. Tenn. Code Ann. § 40-35-114(15) (1997).3 The trial court afforded the factor great
weight, increasing the appellant’s sentence for aggravated sexual battery, a Class B felony, to eleven
years and the sentences for sexual battery, Class E felonies, to two years. The trial court applied
mitigating factors (1), i.e., the appellant’s conduct neither caused nor threatened serious bodily
injury, and (13), i.e., any other factor consistent with the purposes of this chapter. Tenn. Code Ann.
§ 40-35-113(1) and (13) (1997). In applying mitigating factor (13), the trial court found that the
appellant had no criminal history and, except for the instant offenses, had been “a good citizen and
a good son.” Based upon the application of these mitigating factors, the trial court reduced the
appellant’s sentence for aggravated sexual battery to ten years, but did not reduce the appellant’s
sentences for sexual battery. For the child abuse convictions, Class A misdemeanors, the trial court
sentenced the appellant to eleven months and twenty-nine days of confinement. The trial court
ordered the Class E felonies and the Class A misdemeanors to be served concurrently to each other,
but consecutively to the Class B felony, for a total effective sentence of twelve years incarceration.
1. Enhancement Factor (15)
The appellant contends that the trial court afforded “improper weight to the sole enhancing
factor.” However, as previously noted, the weight to be afforded an enhancement factor is left to the
trial court’s discretion so long as the court complies with the purposes and principles of sentencing
and its findings are adequately supported by the record. Boggs, 932 S.W.2d at 475-76.
Enhancement factor (15) provides for the enhancement of a sentence when the defendant abuses a
position of public or private trust in committing the offense. Tenn. Code Ann. § 40-35-114(15)
(1997). Our supreme court has observed that, when an adult perpetrator and a minor victim are
members of the same household, “the adult occupies a position of ‘presumptive private trust’ with
respect to the minor.” State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999). In the instant case, the
3
W e note that, beginning July 4, 2002, “the 2002 amendment [to Tennessee Code Annotated section 40-35-
114] added present [enhancement factor] (1) and redesignated former (1) through (22) as present (2) through (23),
respe ctively.” Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002). Ho wever, for the purposes of this opinion,
we will use the former designations applicable at the time of the appellant’s sentencing.
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appellant and the victim were members of the same household. The appellant was the victim’s
stepfather and subsequently adopted the victim. Additionally, for the majority of his marriage to the
victim’s mother, the appellant cared for and homeschooled the victim while her mother worked.
Accordingly, we conclude that the appellant occupied a position of private trust with respect to the
victim. Thus, the trial court committed no error in applying enhancement factor (15) and affording
the factor great weight.
2. Consecutive Sentencing
Finally, the appellant asserts that the trial court erred by ordering the appellant to serve his
sentence for aggravated sexual battery consecutively to his other sentences. In imposing consecutive
sentences, the trial court found,
[A] number of [these] offenses [were] of a sexual nature, a
stepdaughter situation. . . . I find that there was particularly great
injury, psychological and emotional damage without a doubt.
These offenses occurred over a long period of time. . . . A
significant span of time. The jury found [the appellant] guilty of
offenses that spanned a number of years.
Given the nature of these offenses and the length of time
involved, this [c]ourt finds that it is necessary to protect the public
and the victim from future criminal conduct of [the appellant].
Certainly some consecutive sentencing is warranted here because it’s
reasonably related to the severity of the crime.
On appeal, the appellant argues that by finding that the victim suffered particularly great
psychological and emotional injury, the trial court “made an assumption that the record did not bear
out.” The appellant further contends that the record contained no proof that consecutive sentencing
was necessary to protect the public and the victim from future criminal conduct. Specifically, the
appellant asserts that “there had been no accusation whatsoever that [the appellant] had ever made
improper advances toward anyone other than his adoptive daughter.” The appellant maintains that
a minimum eight-year sentence at one hundred percent would have been “more than adequate” to
protect the victim, because the victim would be twenty-three years old upon the appellant’s release.
Tennessee Code Annotated section 40-35-115(b)(5) (1997) provides that a trial court may
impose consecutive sentences if the trial court finds by a preponderance of the evidence that
[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 or victims, the time span of defendant’s
undetected sexual activity, the nature and scope of the sexual acts and
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the extent of the residual, physical and mental damage to the victim
or victims[.]
In the instant case, the appellant was the victim’s stepfather and subsequently adopted the
victim. The incidents supporting the appellant’s convictions for aggravated sexual battery and sexual
battery spanned a two-year time period from May 1998 to May 2000. Regarding the nature and
scope of the sexual contact, at trial the victim testified to being touched, fondled, and penetrated by
the appellant. Contrary to the appellant’s assertion that the record contained no evidence that the
victim suffered great psychological and emotional injury, we note that the victim’s mother testified
at trial that as a result of the sexual abuse, the victim had attempted suicide, had “scratche[d]
herself,” and had been hospitalized at Valley Hospital. We conclude that these circumstances
warrant the imposition of consecutive sentences under Tennessee Code Annotated section 40-35-
115(b)(5).
III. Conclusion
For the foregoing reasons, we affirm the judgments of the trial court.
___________________________________
NORMA McGEE OGLE, JUDGE
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