State of Tennessee v. Bruce Marvin Vann

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 2, 2015

STATE OF TENNESSEE v. BRUCE MARVIN VANN

Appeal from the Circuit Court for Madison County
No. 13-681 Donald H. Allen, Judge

No. W2014-02119-CCA-R3-CD - Filed August 28, 2015

The Defendant, Bruce Marvin Vann, was indicted and, following a jury trial, convicted of
three counts of rape of a child. See Tenn. Code Ann. § 39-13-522. The trial court
imposed sentences of thirty-five years for each conviction and ordered the sentences to
run concurrently, for a total effective sentence of thirty-five years to be served at 100
percent. On appeal, the Defendant contends (1) that the evidence was insufficient to
sustain his convictions; and (2) that the prosecutor committed misconduct during his
closing argument. Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant
District Public Defender (at trial and on appeal), for the appellant, Bruce Marvin Vann.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; James G. Woodall, District Attorney General; and Brian M. Gilliam,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The evidence at trial established that the victim, D.H.,1 was eleven years old on
August 31, 2013, and the Defendant was her step-father. The victim lived with the
Defendant, her mother, and her three brothers. D.H.’s mother would work nights while
1
It is the policy of this court to protect the privacy of minors and of victims of sexual offenses by
referring to them by their initials.
the Defendant stayed at home with the children. D.H.’s brothers shared a bedroom, the
Defendant and her mother shared the other bedroom, and D.H. would sleep on a daybed
in the living room.

D.H. testified at trial that on August 31, 2013, the Defendant woke her up and took
her to his bedroom. Once the Defendant shut the door, he touched the outside and inside
of her “private part” with his fingers and his tongue. The Defendant then put his “private
part” inside her “private part.” D.H. testified that the Defendant did not threaten her, but
he did hold her down during the attack. When he was finished, the Defendant took a
shower. D.H. testified that she stayed in the bedroom for a few minutes and went back to
the living room while the Defendant was showering. D.H. further testified that she
thought her brothers were asleep and that she did not “call out for” them while the
Defendant was raping her.

D.H. admitted that she did not tell her mother what happened when she returned
home from work at approximately 6:00 a.m. the next morning. D.H. went to school like
normal that Monday without telling anyone about what had happened. All the while, the
Defendant remained in the house with D.H. and her family. At some point, a relative
D.H. referred to as “Uncle Ronnie” came from Nashville to stay with D.H. and her family
for a few days.

One morning while “Uncle Ronnie” was staying with them, D.H. and her mother
got into an argument over how D.H. would wear her hair to school. After her mother left
for work, D.H. wrote a note and gave it to “Uncle Ronnie” with instructions that he give
it to her mother. The note stated as follows, “Ok let’s see will [believe] me on this[,] [the
Defendant,] you so called man[,] f--ked in your bed. Do you [believe] me [now]? And it
was when you went to work.” D.H. admitted that she was mad at her mother when she
wrote the note but denied that she wrote it to hurt her mother’s feelings. D.H. testified
that she was trying to tell her mother that the Defendant had sex with her but admitted
that the note did not say anything about the Defendant touching or raping her.

D.H. testified that when she got home from school that day, the Defendant was
still at her house, but her mother took her to a relative’s house. The next day, her mother
took D.H. to the emergency room, and they went back to their house after she had been
examined. D.H. testified that when they returned from the emergency room, the
Defendant was still at the house. D.H. testified that she eventually spoke to Monica
Goodman, a forensic interviewer, at the Child Advocacy Center in Jackson. D.H.’s
conversation with Ms. Goodman was recorded and played for the jury at trial.

When Ms. Goodman asked D.H. why she was there, she responded that it was
because her mother wanted to know if she was telling the truth about the Defendant.
D.H. told Ms. Goodman that on August 31, 2013, the Defendant had woken her up after
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her mother left for work. The Defendant told D.H. to go to the bathroom, but instead of
taking her to the bathroom, he took her into his bedroom. D.H. stated that she thought
her brothers were asleep while this happened. D.H. recalled that the Defendant was
wearing red and black shorts.

D.H. told Ms. Goodman that, once they were in the bedroom, the Defendant pulled
down his shorts and took off her clothes. The Defendant laid her down on the bed and
stood over her. D.H. stated that the Defendant put his finger inside her “private part” and
held her arms down with his other hand. D.H. also stated that the Defendant kissed her
and put his tongue in her mouth as he did this. After he took his finger out, the
Defendant knelt down in front of D.H and started licking and putting his tongue inside
her “private part.” D.H. told Ms. Goodman that “it kinda hurted” while the Defendant
was licking her.

D.H. stated that the Defendant then stood up and pulled her to the edge of the bed.
D.H. told Ms. Goodman that she was lying on her back and that the Defendant put his
“private part” inside of her, started moving back and forth, and told her to stop moving.
D.H. stated that it felt “watery” and “hurted” when the Defendant did this. D.H. told Ms.
Goodman that the Defendant then tried to make her put his “private part” in her mouth.
D.H. stated that the Defendant sat her up and told her to bend down and put his penis in
her mouth, but she refused.

D.H. stated that when she refused to put the Defendant’s “private part” in her
mouth, he told her not to tell anyone about what happened and to go back to bed. D.H.
told Ms. Goodman that the Defendant took a shower after he was finished and that she
went back to her bed and pulled the covers over her head. D.H. stated that she did not tell
anyone about what the Defendant had done for a few days but that she wrote a note and
had her “Uncle Ronnie” give it to her mother. D.H. admitted that the note did not really
say what the Defendant had done to her. D.H. told Ms. Goodman that the Defendant had
never done anything like this “or different” to her before.

On cross-examination at trial, D.H. admitted that, several months before this
incident, she had given a note to one of her teachers that said the Defendant had sex with
her. D.H. also told one of her friends the same thing. D.H. admitted that what she told
her teacher and friend was not true at the time. D.H. testified that the Defendant had been
touching her chest and “bottom,” that she hated the Defendant for touching her, and that
she had lied to her teacher and friend because she wanted the Defendant “out of the
house” because of the touching. D.H. testified that after giving the note to her teacher,
she was interviewed by a different woman at the Child Advocacy Center and told her that
nothing had happened. D.H. said that she did not know why she did not tell the
interviewer about the Defendant touching her.

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 Ronnie Hampton testified that he lived in Nashville and was related to D.H. and
her mother.2 Mr. Hampton testified that shortly after August 31, 2013, he stayed at the
victim’s house for few days “in one of the kid’s bedroom.” Mr. Hampton recalled that,
one morning, D.H. and her mother got into an argument “about fixing” the victim’s hair.
After D.H.’s mother left for work, D.H. brought Mr. Hampton a note. Mr. Hampton
testified that the victim seemed normal when she gave him the note. Mr. Hampton read
the note after D.H. left for school and then called D.H.’s mother to tell her about the note.

Mr. Hampton testified that the Defendant was asleep in another room and that he
did not tell him about the note. According to Mr. Hampton, D.H.’s mother came home,
and he gave her the note. Mr. Hampton admitted that he had earlier told the police that,
after he read the note, he gave it to the Defendant. Mr. Hampton also admitted that he
told the police that, after reading the note, he initially told D.H.’s mother that D.H.
needed a “whipping.” Mr. Hampton explained that when he first read the note, he
thought D.H. “was being disobedient.”

Doctor Elly Riley testified that she specialized in family medicine and that she
saw D.H. on September 5, 2013. Dr. Riley recalled that D.H. was brought in by her
mother because she “wanted [Dr. Riley] to tell her if [D.H.] had had sex.” Dr. Riley
testified that she spoke to D.H. alone and that D.H. seemed depressed. According to Dr.
Riley, D.H. said that the Defendant “had come into her room and touched her.” Dr. Riley
asked D.H. some more detailed questions, and D.H. told her that the Defendant had
touched her “privates” with his fingers and penis. Dr. Riley determined “that there was
no utility in doing a rape kit” because too many days had passed since when D.H. said it
happened. Dr. Riley testified that she asked D.H. if the Defendant had ever done
anything like that before and that D.H. said that he had not.

Dr. Riley performed a gynecological exam on D.H. and tested her for sexually
transmitted diseases. Dr. Riley testified that D.H. had “a large amount” of “a creamy
white [discharge] that [was] thick from [her] vagina.” Further testing confirmed that
D.H. had trichomoniasis. Dr. Riley explained that trichomoniasis is a “sexually
transmitted protozoan infection” that can cause vaginal discharge and irritation. Dr.
Riley testified that the only way she knew that a female could contract trichomoniasis
was through vaginal intercourse. Dr. Riley opined that a person infected with
trichomoniasis would become symptomatic within a few days of infection.

The Defendant was taken to the Jackson-Madison County General Hospital
emergency room where Kate Cepparulo, a nurse practitioner, tested him for
trichomoniasis. Ms. Cepparulo testified that the Defendant tested positive for

2
It is unclear from the testimony at trial exactly how Mr. Hampton is related to the victim and her
mother.
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trichomoniasis. Ms. Cepparulo further testified that sexual contact was the only way she
knew trichomoniasis to be transmitted. The Defendant entered into evidence a set of
discharge instructions from the hospital regarding trichomoniasis that stated it could be
contracted from “swimming pools or hot tubs.”

D.H.’s mother, T.H.,3 testified that around September 4, 2013, she had a fight with
the victim before she left for work. T.H. testified that the Defendant called her while she
was on her way to work and told her about the note from the victim. T.H. recalled that
when she got home, the Defendant gave her the note and told her that D.H. “needed an
ass whipping.” T.H. also recalled that Mr. Hampton told her that he had given the note to
the Defendant. T.H. testified that when she read the note, she thought it meant that the
victim had woken up in the middle of the night and discovered the Defendant with
another woman.

T.H. testified that D.H. had said that the Defendant “had messed with her before.”
T.H. confronted the victim about the note when she got home from school, but T.H.
claimed that the victim would not tell her anything about the note. T.H. took the victim
to a relative’s house for the night, where the victim told the relative that the Defendant
“was messing with her.” T.H. took D.H. to see Dr. Riley the next day because she
wanted to know if D.H. was telling the truth. T.H. testified that she and the victim went
back home and stayed with the Defendant after they had seen Dr. Riley. According to
T.H., the police came to her work to talk about the victim a few days later. T.H. testified
that she also tested positive for trichomoniasis.

The Defendant’s sister, Geraldine Ware, testified that T.H. showed up at her house
one day with a police officer and showed her the note from D.H. Ms. Ware claimed that
T.H., the victim, and the Defendant pulled up together in the same car. Ms. Ware also
claimed that she went with T.H. and the victim to the emergency room. According to
Ms. Ware, the doctor said that D.H. “hadn’t been messed with” because she “was still
intact.” Ms. Ware further claimed that T.H. and the victim went back to her house after
visiting the emergency room and that T.H. was relieved that the victim had not been
raped. Ms. Ware admitted that, until the trial, she was unaware that the victim had been
diagnosed with trichomoniasis.

The Defendant denied that he ever had any sexual contact with D.H. The
Defendant testified that he lived with D.H. until he was arrested on September 6, 2013.
The Defendant further testified that he was still married to T.H. at the time of the trial.
The Defendant claimed that there was nothing out of the ordinary about August 31, 2013.
The Defendant testified that all of the kids went to bed as usual and that he went to bed

3
In order to further protect the victim’s privacy, we will refer to her mother by her initials.
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“and that was the end of it.” The Defendant also claimed that D.H. did not act
“strangely” around him until she gave Mr. Hampton the note.

The Defendant claimed that he read the note, called T.H., and told her that “she
needed to come home [because] her child had [written] another letter.” The Defendant
testified that he also told T.H. that she needed to “whip [the victim’s] ass.” The
Defendant explained that he said this “[b]ecause that was the second time [D.H.] had”
written a note about him. The Defendant complained that the victim did not “get
disciplined.” The Defendant testified that he used to discipline the children but that he
stopped because T.H. “wasn’t standing behind” him about it. The Defendant opined that
D.H. lied about him because “she didn’t want [him] at the house.”

The Defendant testified that he gave the note to T.H. when she got home and that
she left and picked the victim up early from school. The Defendant further testified that
he did not go with T.H. and the victim when they went to see Dr. Riley. The Defendant
claimed that he went with the victim and T.H. to Ms. Ware’s house and that the police
were “down the street” while T.H. spoke to Ms. Ware. The Defendant testified that he
gave the note to the police. The Defendant claimed that after the victim saw Dr. Riley,
T.H. told him he needed to be tested for trichomoniasis. The Defendant further claimed
that he was shocked when he tested positive for trichomoniasis and that he did not know
how he contracted the disease.

Based upon the foregoing evidence, the jury convicted the Defendant of three
counts of rape of a child: one conviction for the Defendant’s penetration of the victim’s
vagina with his fingers, one conviction for the Defendant’s penetration of the victim’s
vagina with his tongue, and one conviction for the Defendant’s penetration of the
victim’s vagina with his penis. Following a sentencing hearing, the trial court sentenced
the Defendant to thirty-five years for each conviction and ordered the sentences to run
concurrently, for an effective sentence of thirty-five years to be served at 100 percent.
This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his
convictions. The Defendant argues that D.H.’s credibility was questionable and that her
questionable credibility, “coupled with [his] denial of the allegations,” amounts to
insufficient evidence. The State responds that the evidence was sufficient to sustain the
Defendant’s convictions.

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 An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
court has held that circumstantial evidence is as probative as direct evidence. State v.
Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so
strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971)) (internal quotation marks omitted).

Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140
(1954)). To that end, the duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).

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 Rape of a child is defined as “the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if the victim is more than three (3) years of age
but less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a). 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 or of any object into
the genital or anal openings of the victim’s, the defendant’s, or any other person’s body,
but emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7).

Here, D.H. testified at trial that the Defendant penetrated her vagina three separate
times with his fingers, tongue, and penis. This court has previously held that a victim’s
uncorroborated testimony “constitutes sufficient evidence” even in the face of a
defendant’s denial. State v. James Vanover, No. E2005-01192-CCA-R3-CD, 2006 WL
521496, at *4 (Tenn. Crim. App. Mar. 2, 2006). Furthermore, Dr. Riley testified that
when she saw the victim on September 5, 2013, the victim presented with “a large
amount” of vaginal discharge and was diagnosed with trichomoniasis. The Defendant
and D.H.’s mother were also subsequently diagnosed with trichomoniasis.

The fact that the jury accredited D.H.’s testimony and chose not to believe the
testimony of the Defendant and his witnesses “does not cause its verdict to be suspect.”
State v. Leath, 461 S.W.3d 73, 104 (Tenn. Crim. App. 2013). Questions regarding the
credibility of the witnesses are the province of the jury and will not be revisited by this
court. Bland, 958 S.W.2d at 659. Accordingly, we conclude that the evidence was
sufficient to sustain the Defendant’s convictions.

II. Closing Argument

The Defendant contends that the prosecutor committed misconduct during his
closing argument. The Defendant argues that the prosecutor made several statements
designed only “to elicit sympathy for the alleged victim, rather than addressing the
evidence produced at trial.” The State responds that the Defendant has waived appellate
review with respect to two of the three challenged statements because he did not
contemporaneously object to them or include them in his motion for new trial. With
respect to the remaining statement, the State responds that it did not “exceed the bounds
of propriety” and that any error was ultimately harmless given the overwhelming
evidence against the Defendant.

In his brief on appeal, the Defendant cites to three specific statements made by the
prosecutor during his closing argument. The first is as follows:

I mean, I even feel uncomfortable talking about an [eleven] year old girl
and having to ask doctors about this [eleven] year old girl’s vagina. As a

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 grown man - - even in this role, it’s creepy just to talk about an [eleven]
year old girl’s private parts.

The Defendant did not object to this statement.

The next statement the Defendant objects to is as follows:

She’s [eleven] years old. She watches cartoons. She sleeps on a daybed in
the living room. She’s asking for justice. I’m asking on her behalf for you
to give her justice. I can’t give it to her. You’re the only ones that can give
her justice. This girl has got to live with this for the rest of her life. I know
most of you said that you’ve never known anybody who had been sexually
abused or anything like that, but think about the burden this girl now has to
carry with her for the rest of her life.

The Defendant objected to this statement, and the trial court overruled the objection and
did not give any curative instructions to the jury.

The next statement was made immediately after the Defendant’s objection and is
as follows:

For the rest of her life, it’s awkward enough when people talk about their
first sexual experience. I mean, if you’re thinking about your first sexual
experience, it may be something embarrassing or could be something
awkward. For [D.H.], whenever she thinks about her first sexual
experience for the rest of her life, she’s got to think about the time she was
held down on her momma’s bed, against her will forced to have sex with
her step-dad and to boot he infects her with a sexually transmitted disease.

The Defendant did not object to this statement.

A. Statements the Defendant Did Not Object To

As stated above, the Defendant did not object to the first and third statements and
did not raise them in his motion for new trial; therefore, he has waived full appellate
review of the statements. See Tenn. R. App. P. 3(e), 36(a) (stating that full appellate
review is waived when a party fails to contemporaneously object to an error or raise it in
a motion for new trial). As such, we review these statements only to determine if plain
error review is warranted. The doctrine of plain error applies when all five of the
following factors have been established:

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 (a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused must not have waived the issue for tactical reasons; and
(e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

Plain error review is not warranted here because the record does not clearly
establish what occurred in the trial court. Page, 184 S.W.3d at 230. In reviewing the
propriety of a prosecutor’s closing argument, this court considers “the curative measures
undertaken by the trial court.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008). The
Defendant failed to include a copy of the jury instructions in the appellate record;
therefore, the record is incomplete as to whether the trial court instructed the jury
regarding how it was to consider the attorneys’ closing arguments. As the record is
incomplete, we conclude that plain error review is not warranted with respect to the first
and last challenged statements.

B. The Statement Objected to at Trial

Closing arguments “have special importance in the adversarial process,” and the
parties “have an ancient right to make closing arguments.” Banks, 271 S.W.3d at 130.
Closing arguments allow the parties “to present their theory of the case and to point out
the strengths and weaknesses in the evidence to the jury.” Id. Attorneys “should be
given great latitude in both the style and the substance of their arguments.” Id. at 131.
This leeway often results in closing arguments in criminal cases having a “rough and
tumble quality” to them. Id. (quoting State v. Skakel, 888 A.2d 985, 1060-61 (Conn.
2006)). However, while attorneys “may strike hard blows, . . . [they are] not at liberty to
strike foul ones.” Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

“[A] prosecutor’s closing argument must be temperate, must be based on the
evidence introduced at trial, and must be pertinent to the issues in the case.” Banks, 271
S.W.3d at 131. This court has found five general areas of prosecutorial misconduct with
respect to closing arguments, the only one of which at issue in this case, is that the
“prosecutor should not use arguments calculated to inflame the passions or prejudices of
the jury.” State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citing Standards
Relating to the Prosecution Function and the Defense Function §§ 5.8-5.9 Commentary
(ABA Project on Standards for Criminal Justice, Approved Draft 1971)).

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 “A criminal conviction should not be lightly overturned solely on the basis of the
prosecutor’s closing argument.” Banks, 271 S.W.3d at 131. Instead, an improper closing
argument that does not rise to the level of a constitutional violation “will not constitute
reversible error unless it is so inflammatory or improper that it affected the outcome of
the trial to the defendant’s prejudice.” Id.; State v. Jackson, 444 S.W.35 554, 591 n.1
(Tenn. 2014). In reviewing such an allegedly improper prosecutorial argument, this court
considers:

(1) the conduct complained of, viewed in light of the facts and
circumstances of the case; (2) the curative measures undertaken by the
court and the prosecutor; (3) the intent of the prosecutor in making the
improper statement; (4) the cumulative effect of the improper conduct and
any other errors in the record; and (5) the relative strength or weakness of
the case.

Jackson, 444 S.W.3d at 591 n.50.

Prosecutors “may risk reversal by engaging in argument which appeals to the
emotions and sympathies of the jury.” State v. Cribbs, 967 S.W.2d 773, 786 (Tenn.
1998). Here, we hold that the prosecutor’s repeated calls for the jury to give the victim
justice and to think about “the burden this girl now has to carry . . . for the rest of her life”
were improper. See State v. Bigbee, 885 S.W.2d 797, 808-09 (Tenn. 1994) (holding that
“the State’s argument to the jury about the victim . . . and suggesting that holding the
defendant accountable was a way to do justice” was error, but ultimately harmless),
superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d 572, 580-
81 (Tenn. 2004); State v. Jerry W. Tullos, No. E2006-01833-CCA-R3-CD, 2007 WL
2377354, at *8 (Tenn. Crim. App. Aug. 21, 2007) (holding that “it was improper for the
prosecutor to interject ideas of justice and deterrence in his closing argument,” but was
ultimately harmless), perm. app. denied (Tenn. Feb. 4, 2008).

However, in light of the facts and circumstances of the case and the strength of the
State’s case, we conclude that the prosecutor’s improper remarks were ultimately
harmless. D.H. testified at trial that the Defendant penetrated her vagina with his fingers,
tongue, and penis on the night of August 31, 2013. D.H.’s testimony at trial was similar
to what she told Ms. Goodman during her forensic interview at the Child Advocacy
Center. Furthermore, Dr. Riley diagnosed D.H. as suffering from trichomoniasis on
September 5, 2013. The Defendant was subsequently diagnosed with the same sexually
transmitted disease. Given the overwhelming nature of the evidence against the
Defendant, we cannot conclude that the prosecutor’s improper remarks were so
inflammatory or improper that they affected the outcome of the trial to the Defendant’s
prejudice.

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 CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.

_________________________________
D. KELLY THOMAS, JR., JUDGE

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