State of Tennessee v. Luis Jorge Diaz

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs in Knoxville July 21, 2015

STATE OF TENNESSEE v. LUIS JORGE DIAZ

Appeal from the Criminal Court for Davidson County
No. 2012B1673 J. Randall Wyatt, Jr., Judge

No. M2014-01685-CCA-R3-CD – Filed September 18, 2015
____________________________

Appellant, Luis Jorge Diaz, was convicted of six counts of aggravated sexual battery. The
trial court sentenced appellant to ten years for each conviction and aligned two of the
convictions consecutively, for a total effective sentence of twenty years. Appellant now
challenges his convictions, arguing that: (1) the evidence was insufficient to support his
convictions; (2) the trial court erred in allowing the State to use leading questions during
the State‟s direct examination of the victim; and (3) the trial court erred in sentencing.
Following our review of the briefs, the parties‟ arguments, and the applicable law, we
affirm the judgments of the trial court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which CAMILLE R. MCMULLEN
and ROBERT L. HOLLOWAY, JR., JJ., joined.

Joshua L. Brand (on appeal), Nashville, Tennessee; and Paul J. Walwyn (at trial),
Madison, Tennessee, for the Appellant, Luis Jorge Diaz.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Victor S. Johnson III, District Attorney General; and Sharon Reddick and Kristin
Elizabeth Menke, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

OPINION

This case concerns a stepfather‟s intimate touching of his six-year-old step-
daughter. As a result of this behavior, appellant was indicted for five counts of
aggravated sexual battery and one count of rape of a child. The rape of a child indictment
was amended to aggravated sexual battery. Appellant‟s trial began on October 7, 2013,
and he was convicted of all six counts of aggravated sexual battery.

I. Facts

Angela,1 the victim‟s grandmother, listed each of her daughter‟s thirteen children
by name and age and stated that she had aided her daughter, Carrie, in the children‟s care
by allowing the family to live with her periodically and by paying for clothing, school
supplies, and various bills. Angela explained that appellant and Carrie met in 2008 and
that appellant, Carrie, and three of the children, including the victim, stayed with her
from May 1, 2010 to July 8, 2010. During the family‟s stay, Angela observed that
appellant interacted “pretty well” with the children but that appellant focused most of his
attention on the victim. The three children slept in the same room as appellant and Carrie
when they stayed in Angela‟s home. Angela explained that when appellant and Carrie
began their relationship, six of Carrie‟s sons lived with a family friend, Ms. Irene Reed,
who adopted one of the sons, and that this arrangement was mainly due to Carrie‟s lack
of housing or a job. However, Ms. Reed returned three of Carrie‟s sons ― Jake, Nicolas,
and Carlos ― while the family was living with Angela in 2010. Each of these sons was
under the age of eighteen at the time.

After the family moved out of Angela‟s home, Angela continued to notice that
appellant seemed “really obsessed” with the victim. Appellant limited the victim‟s
activities with other people, including Angela and the victim‟s brothers. Angela
explained that she became concerned when she discovered that appellant bathed the
female children and that Carrie bathed the male children and that this routine was still
occurring when the victim was six years old. Angela described the family‟s nomadic
living situation, in which the family moved from her home, to apartments, to the home of
appellant‟s mother, sometimes leaving one or more of the older boys with Angela.
Angela described one of the apartments in which the family resided, stating that the
apartment had two bedrooms and that appellant, Carrie, and the younger children slept in
one bedroom and the older boys slept in the other bedroom. After living in this
apartment, Carrie and the children again moved in with Angela around Halloween 2011,
but Angela did not allow appellant to live in her home. After the family moved in with
her and while Angela was out of town, one of the older sons called Angela and told her
that the victim had made allegations of sexual abuse against appellant. When Angela
returned home, Carrie and the younger children, including the victim, were gone. Angela
discovered that appellant had also left with Carrie. A day or two later, the victim called
Angela and told Angela that she was going to Mexico to visit her biological father.

1
It is the policy of this court to protect the identity of minors who were the victims of sexual
crimes; as such, we will refer to the victim as “the victim” and will refer to her immediate family
members by their first names only. In doing so, we mean no disrespect.
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However, a couple of days later, Carrie called Angela and told her that she was lost.
Along her drive, Carrie saw signs for Illinois, Indiana, and Kentucky. Eventually, the
family returned to Angela‟s home, and Carrie made an official report concerning the
victim‟s allegations. Angela recalled that during the investigation of the child abuse,
appellant called and told her that “things” were occurring in her home and that if she
knew about them, she would evict Carrie and her family; however, appellant did not
elaborate on this statement. Angela also testified that during the investigation, Carrie
continued to allow appellant to be near the victim, specifically describing three separate
instances in which the victim and appellant were in contact. As a result of this contact,
the seven children that were residing with Carrie were placed in Angela‟s custody. At the
time of trial, Angela shared custody of the four smaller children with Carrie and the older
boys were in Carrie‟s custody. However, Carlos, one of the victim‟s brothers, still
resided with Angela.

During cross-examination, Angela testified that when the older boys initially
started living with Carrie and appellant, the boys interacted well with appellant but that
the relationship later deteriorated after appellant refused to allow the victim to play with
her older brothers. Angela specifically recounted one instance of appellant‟s discipline of
the victim, explaining that the victim had gone to the mall with Angela after the victim
told appellant and Carrie that she did not want to go to the store with them. The next day
Angela returned home to find the victim crying because appellant had taken three of her
siblings to the park and to get candy but had told the victim that she was not allowed to
go because she had not gone with him the prior day.

The victim testified that she was eight years old at the time of trial and that she
was in the third grade in school. The victim identified appellant and explained that when
he lived with her, she referred to him as “Daddy,” although she knew that appellant was
only her younger brother Joseph‟s biological father. The victim testified that the
incidents in question occurred at the family‟s old apartment and at Angela‟s house.

Regarding the incidents that occurred in the apartment, the victim explained that
she, appellant, Carrie, and three of her siblings slept in one bedroom together. Carrie and
the three siblings shared the bed while appellant and the victim slept on the floor. The
victim described one instance in which she and appellant were sleeping on the floor and
appellant turned her to face him and began pushing his genitalia against the victim‟s
genitalia “really hard.” When asked if appellant‟s body was staying still or moving when
it was pushed against her, the victim stated that appellant‟s body was moving, although
she was unable to describe the movement. Both the victim and appellant were clothed
during this encounter. The victim described another incident that occurred in the
bedroom in the apartment while appellant and the victim lay in the floor, stating that
appellant grabbed her hand, placed her hand on his unclothed penis, left his hand resting
over her hand, and counted to ten or twenty while making her hand “go up and down.”
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The victim stated that during this occurrence, she felt “something wet” while her hand
was on appellant‟s genitalia. The victim also recounted a third incident in which she
awoke with her hand in appellant‟s pants touching appellant‟s penis, and the victim felt
“something wet.” The victim explained another encounter that occurred in the living
room of the apartment in which appellant lay on the couch behind the victim and
removed her pants and underwear. Appellant then touched the “outside” of the victim‟s
genitalia with the tips of his fingers. The victim also recounted another occurrence in the
kitchen of the apartment in which appellant picked the victim up and sat her on the
counter while standing in front of her. However, the victim could not recall what
occurred next. The victim also remembered appellant‟s asking her to touch his testicles
while they were in the bedroom of the apartment, although she could not remember the
other surrounding circumstances of the incident.

Regarding the incident that occurred in Angela‟s home, the victim testified that
appellant retrieved a glass of milk and then took the victim to the bathroom, locking the
door after they had entered. Appellant then sat on the toilet, pulled down his pants, drank
some of his milk, and then moved his hand “up and down” on his “private.” Appellant
then grabbed the victim‟s hand and “[did] the same thing and milk came out of his
private.” The victim explained that she had to wash her hands afterward to remove the
liquid.

The victim testified that after these incidents, she told her mother and grandmother
about the encounters with appellant. The victim explained that sometime after she told
her mother about the sexual abuse, Carrie took her to talk to appellant. During the
conversation, Carrie questioned appellant about the victim‟s accusations, and appellant
responded that he was asleep during the incidents. The victim stated that if not for the
abuse, she would have liked living with appellant and asserted that her brothers had not
asked her to make false allegations against appellant.

During cross-examination, the victim recalled that she once played a game with
her older brothers and that appellant became angry. The victim testified that she slept on
the floor of the bedroom because there was insufficient space to sleep on the bed with her
siblings. The victim asserted that she never heard her older brothers threaten appellant.

Carlos, one of the victim‟s older brothers, testified that he was fifteen at the time
of trial. He stated that the summer prior to trial, he and his brother Nicholas had been
charged with robbery and that he had pleaded guilty in juvenile court and was on
probation. Carlos explained that he had known appellant for about five years and that he
met appellant while he was living with Ms. Reed. However, he did not get to know
appellant until he moved into Angela‟s home while appellant, Carrie, and some of his
siblings were residing there. Carlos testified that he initially liked appellant and that
appellant seemed to treat his siblings “[p]retty well.” However, over time, Carlos
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observed that appellant began “bonding” more with the victim than with the other
children. During that time, appellant began ignoring Carlos and his older brothers and
then, eventually, began telling Carrie that her teenage sons were too old to hug her.
Appellant also accused Nicolas of looking down his mother‟s shirt. Appellant told the
victim that she could not hug or play with her older brothers.

Carlos described an incident that occurred on Halloween 2011, when he was
thirteen years old, explaining that at the time, he, his mother, and the four young children
were living with Angela but that appellant was residing elsewhere. He, Carrie, and the
four younger children went to the home of appellant‟s mother to retrieve appellant so that
appellant could accompany them trick-or-treating. When they arrived, Carlos went trick-
or-treating at the surrounding apartments, and when he returned to appellant‟s mother‟s
home, Carrie and appellant were arguing in the front yard while the younger children
stood nearby. Carlos heard appellant ask why Carrie had brought “that [expletive],”
referring to Carlos, with her, and Carrie slapped appellant. Carlos testified that
appellant‟s mother got involved in the argument and that appellant pinned Carrie against
the car and began choking her. Carlos testified that he pulled appellant away from his
mother, but appellant‟s adult brother, who had been videotaping the incident, intervened.
Thereafter, appellant and his brother began hitting Carlos while appellant‟s other two
brothers, who were also adults, began hitting Carrie and “pulling her hair out.” Carlos
explained that the fight continued until a group of unknown men got out of a car and
intervened. After the fight ended, Carlos, his mother, appellant, and the younger children
got in the car and left. Carrie drove her children home, dropped them off, and then left
with appellant. A couple of weeks after this incident, Carlos learned that the victim had
made allegations of sexual abuse against appellant. Carlos remembered that one of his
brothers informed their grandmother of the allegations and that he believed it was
important to tell their grandmother because he did not believe that their mother would
take further action. Carlos denied telling his sister to make up these allegations.

During cross-examination, Carlos testified that he and his brothers returned to live
with his mother of their own volition. Carlos explained that the four younger children
always slept in a room with Carrie and appellant. Carlos explained that any time there
was an argument around appellant‟s family members, the family members would record
the argument using their cellular telephones.

Nicholas, the victim‟s older brother, testified that he was sixteen at the time of trial
and that the previous summer he had pleaded guilty to aggravated robbery. Nicholas‟s
testimony was substantially similar to Carlos‟s testimony. Nicholas added that he moved
back from Alabama so that he could be with his mother. Nicholas explained that around
2011, he moved with his mother and appellant to the home of appellant‟s mother because
he wanted to stay with his mother. Nicholas stated that initially he got along well with
appellant but that over time, his opinion of appellant changed because appellant became
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controlling of Carrie and the younger children, explaining that appellant did not want
Nicholas and his mother to hug or want the younger children to play with him. Nicholas
explained that he became concerned by appellant‟s giving the victim baths while the door
to the bathroom was locked. Nicholas also recalled an incident in which appellant
accused Nicholas of looking down his mother‟s shirt, which Nicholas denied doing.
Nicholas testified that other than the above behaviors, he never saw appellant
inappropriately touch the victim. During cross-examination, Nicholas stated that he
never had any serious conflict with appellant prior to the victim‟s allegations. Nicholas
also acknowledged that in addition to his aggravated robbery conviction he also had a
conviction for felony vandalism.

Jake, the victim‟s older brother, testified that he was eighteen years old at the time
of trial. Jake‟s testimony was substantially similar to the testimony of Carlos and
Nicholas. Jake added that after he found out about the victim‟s allegations, he called his
grandmother and informed her about the abuse. Jake denied telling the victim to make
false allegations against appellant.

Jill Howlett testified that she worked as a social worker for Our Kids Center, an
outpatient clinic that conducts forensic medical examinations of children when
allegations of sexual abuse are made. Her primary responsibility was to collect
information about the child‟s medical and social history from the child. Ms. Howlett
explained that the information she collects is used to determine which tests the medical
professionals should conduct and how the tests are performed. Ms. Howlett testified that
she interviewed the victim in December 2011. Using the report generated immediately
after the interview, Ms. Howlett stated that the victim had just turned seven shortly before
the interview. Ms. Howlett testified that during the interview, the victim stated that
appellant touched her genital area and behind with his “private part” on multiple
occasions and that the contact occurred “over her clothes.” The victim also told Ms.
Howlett that on one occasion, appellant touched the inside of her genital area with his
fingers. The victim also reported that appellant had put her hand on his penis and
“moved it back and forth” and that appellant made her “squeeze” his testicles while
appellant held his penis. The victim told Ms. Howlett that appellant made her hug and
kiss him every morning and night and that appellant would lick her teeth when she kissed
him. Ms. Howlett testified that this information was given to the medical personnel that
examined the victim following the interview.

Lori Littrell, a physician‟s assistant at Our Kids Center, testified that prior to a
physical examination, she interviews a child‟s caregiver and a social worker interviews
the child to receive information about the child‟s medical history and presenting history.
Ms. Littrell explained that this information helps determine the extent of the physical
examination. Ms. Littrell testified that she examined the victim in December 2011. Using
the report generated immediately after the examination, Ms. Littrell explained that the
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victim‟s examination was normal. However, Ms. Littrell testified that normal results
were not unexpected given the length of time since the victim‟s last contact with
appellant ― three to four weeks prior to the examination ― and the type of contact that
the victim described, which Ms. Littrell explained was unlikely to cause physical injury.
Ms. Littrell also agreed that injuries to the genital area heal very quickly. During cross-
examination, Ms. Littrell agreed that the results from the victim‟s physical examination
neither proved nor disproved that the victim suffered sexual abuse.

Metro Nashville Police Detective John Ferrell testified that he and another
detective worked on this case and that he was present for appellant‟s interview. The State
introduced a video of appellant‟s interview into evidence and played the video for the
jury. During the interview, appellant stated that he had a good relationship with his
family until his wife‟s three older sons moved in with them. Appellant explained that
after the three sons moved in, the boys exposed the younger children to sexually explicit
information and left condoms in plain view throughout the house. Appellant alternatively
either stated or implied that the victim‟s allegations were a product of: (1) the victim‟s
brothers‟ influence; (2) Carrie‟s anger in response to appellant‟s telling her that their
relationship was over; and (3) the victim‟s anger towards him in response to the fight that
occurred between appellant, Carrie, and Carlos on Halloween 2011. Appellant also
alleged that while the boys were living in Alabama, the boys were involved with
allegations of sexual abuse, which were investigated by the Alabama police. After the
video was played, Detective Ferrell testified that appellant‟s assertions that some of the
older boys were involved with allegations of sexual abuse while they were in Alabama
did not prove true after officers contacted Alabama law enforcement and children‟s
services. Detective Ferrell explained that after appellant‟s initial interview, appellant
contacted law enforcement alleging that he had Carrie‟s cellular telephone and that he
had discovered that Carrie had been sending nude pictures of herself to other men. He
did not allege that the victim had seen these pictures.

During cross-examination, in response to defense counsel‟s question asking what
appellant could have done during the interview to change Detective Ferrell‟s opinion that
appellant was guilty, Detective Ferrell stated that appellant‟s reactions would have had to
have been different. Detective Ferrell stated that appellant was “stoic” during the
interview and that he would expect an innocent person to be on the “very borderline of
aggressive” in an attempt to convince the detectives of innocence; however, Detective
Ferrell conceded that different people react differently. Detective Ferrell stated that he
did not investigate the Alabama incidents but that he assumed the other investigating
detective found nothing because there was no information about the incidents in the case
file.

Following this testimony, the State made the following election of offenses: Count
One, aggravated sexual battery, appellant pressed his private parts against her private
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parts “really hard” while lying on the floor of the bedroom; Count Two, aggravated
sexual battery, appellant put the victim‟s hand on his private area and made her hand “go
up and down” as he “counted to 10 or 20” while lying on the floor of the bedroom; Count
Three, aggravated sexual battery, the victim awoke to find that appellant had placed her
hand in his pants, touching his private area, and she felt something wet; Count Four,
aggravated sexual battery, appellant put the victim‟s hand on his unclothed private area
after drinking milk and moved her hand “up and down until „the milk came out‟”; Count
Five, aggravated sexual battery, appellant made the victim “touch and squeeze his
testicles” in the bedroom; Count Six, aggravated sexual battery, appellant touched the
victim‟s private area “with the „tips of his fingers‟ on the skin.” The State then rested its
case-in-chief.

Appellant called Carrie, the victim‟s mother, to testify in his defense. Carrie
testified that she was appellant‟s wife and that she and appellant married in 2008. Carrie
testified that she met appellant at Krystal, a fast food restaurant, where both she and
appellant worked. Carrie explained that the first year of their marriage was good but that
eventually appellant became controlling of her and the victim, refusing to allow the
victim to visit a friend‟s house and protesting Carrie‟s or the victim‟s visiting Carrie‟s
mother. She further explained that appellant did not want any of the children to be
around her family members. Carrie explained that appellant did not like her older
children and that she and appellant‟s relationship suffered as a result. Due to the ensuing
arguments, appellant moved in with his mother while Carrie and her children moved in
with her mother. Two weeks after the separation, the victim began telling Carrie about
the incidents with appellant. Carrie explained that over several days, the victim told her
small parts of what occurred. When Carrie asked the victim why she had not told Carrie
sooner, the victim explained that appellant had told her that if she told anyone he would
find out. The victim also told Carrie that she was afraid that Carrie would be angry with
her. Carrie testified that even after the victim made allegations against appellant, Carrie
continued to talk to and see appellant, even taking the children and appellant with her to
see the holiday lights at Opryland Hotel. Carrie admitted that she also wrote appellant
letters while he was in jail. Carrie explained that appellant asked her to write a letter
saying that the victim had lied in making the allegations against him. Defense counsel
entered a letter into evidence in which Carrie wrote, “[P]lease forgive me[.] [M]om[] will
hate me for the rest of her life if they find out we made [the victim] to[sic] lie about you
raping her[.] I wish I never told to[sic] say those things against you.” However, Carrie
asserted that she was sure that appellant had sexually abused the victim because appellant
had done similar things to her.

During cross-examination, Carrie testified that after the victim made these
allegations against appellant, she, appellant, and the younger children, including the
victim, left Nashville, intending to go to Mexico so that appellant could avoid legal
proceedings and so that she could be with appellant. Carrie conceded that in the
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beginning of the legal proceedings against appellant, she attempted to protect appellant.
Carrie asserted that the letter entered by appellant was not a statement that she had told
the victim to lie but rather an explanation that her mother would hate her if she now said
that she had asked the victim to make false allegations. During re-direct examination,
Carrie explained that when she, appellant, and the younger children left to go to Mexico,
they drove around for a few days. However, after Carrie asked the victim if she felt safe
and the victim responded that she would be okay as long as appellant stayed in bed with
Carrie and did not get in the victim‟s bed, Carrie realized that she could not go to Mexico
with appellant. The next day the group returned home.

Socorro Moreno Torres, appellant‟s mother, testified that during part of
appellant‟s and Carrie‟s marriage, the family lived with her. She asserted that appellant
loved Carrie‟s children and that he treated all four of the younger children the same. Ms.
Torres explained that sometimes Carrie‟s older children stayed in her home as well. Ms.
Torres stated that after the older children arrived, appellant and Carrie began arguing. Ms.
Torres asked appellant and Carrie to leave her home due to Carrie‟s older children‟s
behavior. Ms. Torres explained that at some point, appellant moved back into her home
without the rest of the family. She asserted that appellant was very upset because the
children were not with him. Ms. Torres described the incident that occurred on
Halloween 2011, stating that she was inside her home when she heard children crying
outside. Ms. Torres went outside and saw Carrie grabbing appellant‟s head. When Ms.
Torres attempted to remove the children, Carrie pushed Ms. Torres, and Ms. Torres fell to
the ground. Ms. Torres stated that she saw one of Carrie‟s sons punching appellant. Ms.
Torres had no further memory of the incident because she fainted and had to be taken to
the hospital. Ms. Torres testified that Carrie told her that if appellant ever left Carrie, she
was going to “get even with him.”

Appellant testified in his own defense that he met Carrie while they were working
at Krystal. They were married, and Carrie later gave birth to two children, one of whom
was appellant‟s biological child. Appellant admitted that after Carrie‟s older children
came to live with him and Carrie, he would lock the doors to some of the rooms but
asserted that sometimes it was an attempt to gain privacy so that he could rest and other
times it was to keep the younger children from being exposed to bad language and
inappropriate content that Carrie‟s older sons were viewing electronically. Appellant
explained that due to Carrie‟s older sons‟ behavior, numerous arguments ensued between
appellant and Carrie and between appellant and Carrie‟s sons. Appellant stated that
Carrie and two of her sons threatened to kill him on multiple occasions. Appellant
explained that after he moved to his mother‟s house and Carrie and her children moved to
her mother‟s house, he spent the night with Carrie at a motel and then in the morning,
told Carrie that he wanted to end their relationship. In response, Carrie threatened to call
the police and tell them that appellant had raped her. Carrie also told appellant that he
was either going to be “hers or nobody else‟s.” Appellant asserted that shortly thereafter,
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Carrie called him asking for money, but when he told her that he was busy, Carrie called
him a rapist and told him the victim had made allegations against him.

Appellant described the incident that occurred on Halloween 2011, stating that
Carrie arrived at his mother‟s house demanding that he give her money and that he leave
with her. Appellant explained that after Carrie had already hit him, Carrie threatened to
kill his family if he did not comply with her demands and that when Carrie started
walking towards his mother, he grabbed Carrie to stop her. Appellant testified that
Nicolas intervened in the struggle, forcing appellant to the ground. After the fight
calmed, appellant left with Carrie because he was concerned for his family‟s welfare.
Appellant asserted that Carrie continued to make threats against his family and that after
they took Carrie‟s children to her mother‟s home, Carrie threatened to have appellant‟s
citizenship papers revoked. Appellant responded that as long as he did not do “anything
bad,” she could not interfere with his citizenship. Appellant testified that Carrie replied,
“„Well, just watch [your] a**.‟”

Appellant testified that the victim was lying during her testimony and that he
would never hurt her. Appellant asserted that he did not favor the victim and that he tried
to spend time with all of the children. Appellant agreed that he sometimes slept on the
floor and that sometimes the victim also slept on the floor. Appellant stated that after
Carrie‟s older sons moved in with them, due to the size of their apartments and the
number of occupants, some of the children always had to sleep in his and Carrie‟s room.
Appellant testified that he had given all of the younger children baths, including the
victim, but that he never locked the door. Appellant also said that the incident in the
bathroom with the milk was untrue and that he did not drink milk. Appellant asserted
that the other allegations were also untrue.

During cross-examination, appellant admitted that he did not tell the investigating
detectives about some of the specific allegations of Carrie‟s sons‟ bad behavior that he
alleged at trial. Appellant agreed that he believed Carrie made up the sexual abuse
allegations because he refused to give her money; however, he admitted that he did not
tell that information to the detectives. Appellant asserted that initially he believed that
Carrie‟s sons had persuaded the victim to make false allegations but that after receiving
Carrie‟s letter in jail, he believed that Carrie was responsible for the false allegations.
Appellant stated that he did not sleep with the victim in the floor as the victim described
but that he slept in the bed with his wife.

After considering the evidence presented, the jury found appellant guilty of all six
counts of aggravated sexual battery. The trial court sentenced appellant to ten years for
each conviction, aligning the sentences concurrently except that Count One and Count
Two were aligned consecutively, for a total effective sentence of twenty years. Appellant
now challenges his convictions and sentences.
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 II. Analysis

Appellant argues that: (1) the evidence was insufficient to support his convictions;
(2) the State erroneously asked the victim leading questions about material facts of the
case; and (3) the trial court erred in determining the length and alignment of his
sentences. The State responds that the evidence was sufficient to support appellant‟s
convictions, that the trial court properly allowed the State to ask leading questions during
the victim‟s testimony, and that the trial court properly sentenced appellant.

A. Sufficiency of the Evidence

The standard for appellate review of a claim challenging the sufficiency of the
State‟s evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, appellant must demonstrate that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
319. This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
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 Aggravated sexual battery is defined, in part, as the “unlawful sexual contact with
a victim by the defendant or the defendant by a victim accompanied by any of the
following circumstances: . . . (4) The victim is less than thirteen (13) years of age.” Tenn.
Code Ann. § 39-13-504(a). Sexual contact is defined as the “the intentional touching of
the victim‟s [or] the defendant‟s . . . intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim‟s [or] the defendant‟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). Aggravated sexual battery is a class
B felony. Id. § 39-13-504(b).

The State relied on six instances of conduct to support appellant‟s aggravated
sexual battery convictions. Viewing the evidence in the light most favorable to the State,
we will recount each incident in the order elected by the State.

 The victim testified that appellant and the victim were lying on the bedroom floor
of their apartment and that the defendant turned her to face him and began pushing
his clothed genitalia against the victim‟s clothed genitalia “really hard.” The
victim explained that appellant was moving his body during this encounter.

 The victim testified that appellant put her hand on his unclothed penis, left his
hand resting over her hand, and counted to ten or twenty while making her hand
“go up and down.” The victim stated that during this occurrence, she felt
“something wet” while her hand was on appellant‟s genitalia. Ms. Howlett also
testified that during the victim‟s interview at Our Kids Center, the victim stated
that appellant had put her hand on his penis and “moved it back and forth.”

 The victim explained that she awoke with her hand in appellant‟s pants touching
appellant‟s penis, and the victim felt “something wet.”

 The victim testified that appellant retrieved a glass of milk and then took the
victim to the bathroom, locking the door after they had entered. Appellant then sat
on the toilet, pulled down his pants, drank some of his milk, and then moved his
hand “up and down” on his “private.” Appellant then grabbed the victim‟s hand
and “[did] the same thing and milk came out of his private.” The victim explained
that she had to wash her hands afterward to remove the substance. Nicholas also
said that he remembered appellant locking the bathroom door while appellant and
the victim were inside.

 The victim remembered appellant asking her to touch his testicles while they were
in the bedroom of the apartment. Ms. Howlett also testified that during the
victim‟s interview at Our Kids Center, the victim reported that appellant made her
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 “squeeze” appellant‟s testicles while appellant held his penis.

 The victim recounted an incident in the living room of the apartment in which
appellant lay on the couch behind the victim and removed her pants and
underwear. Appellant then touch the “outside” of the victim‟s genitalia with the
tips of his fingers.

This information was sufficient for a reasonable jury to determine that there was intimate
contact between the victim and appellant. The victim was six to seven years old when
she reported these incidents, which satisfies the aggravating circumstance that the victim
be under thirteen years of age when the contact occurred.

Appellant alleges that the victim‟s uncorroborated testimony regarding these
incidents was insufficient to support his convictions and that there was insufficient proof
to show that the touching was for the purpose of sexual arousal or gratification. However,
the law does not require that a minor victim‟s testimony be corroborated to support a
conviction. State v. Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000) (stating that a
twelve-year-old victim‟s testimony regarding incidents of aggravated sexual battery need
not be corroborated). Furthermore, there was sufficient evidence of sexual arousal or
gratification. The victim testified that during each incident, appellant was either moving
his genitalia against her, that she felt “something wet” during the incidents of intimate
contact, that “milk” came out of appellant‟s private, or that appellant was touching her
unclothed genitalia while lying on the couch. Regarding the first incident in which the
victim and appellant were clothed, their clothed state does not negate that the contact was
for the purpose of sexual arousal and gratification under the circumstances of the contact.
See id. at 106 (finding sufficient evidence of sexual arousal and gratification even though
the victim and appellant were clothed during the contact). Based on this information, a
reasonable jury could infer that the sexual contact was for the purpose of sexual arousal
or gratification. Therefore, after viewing the evidence in the light most favorable to the
State, a reasonable jury could find the essential elements of aggravated sexual battery
were proven beyond a reasonable doubt.

B. Leading Questions

Appellant also challenges the State‟s use of leading questions while questioning
the eight-year-old victim. Specifically, appellant challenges the following colloquy that
took place after the victim had testified about appellant pressing his private area against
her private area while both parties were clothed:

Q: Okay. Was there another time that something happened on the floor in
that room that you can tell us about?

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 A: Umm, I know there is something, but I can‟t remember.

Q: Was there a time on the floor in that room when --

....

Q: Was there a time on the floor in that room when, you told us that he
touched your body, your private with his private, was there a time on the
floor in that room when you, when he wanted you to touch his private with
your hand?

A: Yes.

Q: Can you tell us what you remember about that?

A: Can I write it down?

Q: Yes, you can.

....

[Defense counsel objected to the form of the question, and the trial court
overruled the objection. The trial court allowed defense counsel to lodge a
standing objection to any further leading questions.]

A: First he would grab my hand and then he would put my hand on his
private and then he would count to 10 or 20.

Tennessee Rule of Evidence 611(c)(1) states, “Leading questions should not be
used on direct examination of a witness except as may be necessary to develop the
witness‟s testimony.” However, it is well-settled law that leading questions may be
utilized during the direct examination of a child victim of sexual abuse. Swafford v.
State, 529 S.W.2d 748, 749 (Tenn. Crim. App. 1975); State v. Timonty P. Guilfoy, No.
M2012-00600-CCA-R3-CD, 2013 WL 1965996, at *11 (Tenn. Crim. App. May 13,
2013) (citations omitted). “The propriety, scope, manner and control of examination of
witnesses is within the trial court‟s discretion and will not be interfered with in the
absence of an abuse of discretion.” State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992)
(citations omitted).

The victim was six years old, almost seven, when she initially told someone about
the sexual abuse, and she was eight years old at the time of trial. We note that even from
a cold transcript, it is clear that the victim was having difficulty testifying about the
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details of her encounters with appellant due to memory lapses, nervousness, and
embarrassment. We also note that the leading questions did not unduly prejudice
appellant because after the questions, the victim agreed that such encounters occurred and
then added further detail about the incidents from her own memory. See State v. William
Dearry, No. 03C01-9612-CC-00462, 1998 WL 47946, at *10-11 (Tenn. Crim. App. Feb.
6, 1998) (upholding a prosecutor‟s question asking the victim, “[D]id you touch him with
your mouth somewhere?”); State v. Craig Allen Lewis, No. 01C01-9307-CC-00232, 1995
WL 10509, at *7 (Tenn. Crim. App. Jan. 12, 1995) (upholding leading questions to an
eight-year-old victim even when all questions were leading and the victim‟s responses
were mostly one or two words). Due to the victim‟s age and the circumstances, we
conclude that the trial court did not abuse its discretion in allowing the State to use
leading questions during the victim‟s direct examination.

C. Sentencing

Appellant also argues that the trial court erred in: (1) applying the sentencing
enhancement factor that the victim‟s personal injuries were particularly great; (2) failing
to consider any mitigating circumstances, and (3) aligning two of appellant‟s sentences
consecutively. The State responds that the trial court properly sentenced appellant.

1. Facts from Sentencing Hearing

At the sentencing hearing, appellant‟s presentencing report and the victim impact
statement were admitted into evidence. Appellant also entered multiple letters regarding
his character into evidence.

Angela, the victim‟s maternal grandmother, testified that since the victim reported
appellant‟s sexual abuse, the victim had become “real sensitive to things, especially if
you corrected her for anything or if mom corrected her, she was real easy to tune up and
cry.” After noticing this sensitivity and in preparation for possible testimony at trial,
Angela helped enroll the victim in counseling. The victim attended counseling for a year
and a half, and Angela opined that counseling had helped the victim. Angela testified
that she expected the victim to need further counseling in the future. During cross-
examination, Angela testified that the victim‟s sensitivity began before the victim‟s
mother moved out of Angela‟s home, leaving the victim with Angela, and persisted after
her mother had moved out.

Daniel Diaz Moreno, appellant‟s brother, testified that he and appellant worked
together about ninety percent of the time. Mr. Moreno testified that at work appellant
was considered to be responsible and a good worker. Regarding appellant‟s family, Mr.
Moreno asserted that appellant was patient and non-argumentative. Mr. Moreno
described appellant as very attentive to the children, explaining that appellant always
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cared for the children and treated them all the same. Mr. Moreno stated that even after
the victim made these allegations, appellant continued to work, explaining that appellant
wanted to join the Army.

Inez Palacios Galan, appellant‟s sister-in-law, testified that appellant always took
care of Carrie‟s children and treated all of the children the same. Ms. Galan asserted that
appellant was a hard worker. Ms. Galan asked the judge to consider the least restrictive
punishment for appellant.

Appellant testified he grew up in Monterey, Mexico, and came to the United
States when he was fourteen years old. Appellant had lived in Nashville, Tennessee,
since 1999. Appellant explained that he did not attend school because he had to work but
that he later received his GED. Appellant asserted that he wanted to become an electrical
engineer and that he read books and worked toward that goal. Appellant also stated that
he wanted to join the Army and had tried to enlist multiple times; however, due to his
citizenship status and situation, he was unable to join. Appellant stated that he was fluent
in English and Spanish. Appellant asserted that he had never used alcohol, tobacco, or
illegal drugs, even though he had been exposed to those things. Appellant explained that
he became a United States permanent resident in 2010. Appellant admitted that he had
been arrested “a couple of times” for driving without a license and that he had one
conviction for driving without a license. However, after appellant obtained permanent
residency, he obtained a driver‟s license. Appellant explained that due to this felony
conviction, he would most likely have his citizenship status revoked and be deported.
Appellant agreed that he was willing to fulfill the requirements of the Sex Offender
Registry and Lifetime Community Supervision after his release from prison. Appellant
apologized for what the victim was going through.

Following the presentation of this evidence, the trial court applied two
enhancement factors ― that the personal injuries to the victim were particularly great,
Tenn. Code Ann. § 40-35-114(6), and that appellant abused a position of public or private
trust in committing the crimes, Id. § 40-35-114(14) ― and concluded that none of the
mitigating circumstances were applicable. The trial court also determined that
consecutive sentencing was appropriate. The trial court sentenced appellant to ten years
at 100% release eligibility for each conviction of aggravated sexual battery and aligned
two of the convictions consecutively, for a total effective sentence of twenty years.

2. Standard of Review

In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
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evidence and information offered by the parties on mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Tenn. Code Ann. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
Tenn. Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain
“advisory sentencing guidelines” that are not binding on the trial court; however, the trial
court must nonetheless consider them. See id. § 40-35-210(c). Although the application
of the factors is advisory, a court shall consider “[e]vidence and information offered by
the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The
weighing of mitigating and enhancing factors is left to the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving
applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-
9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial
court‟s weighing of the various enhancement and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v.
Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim.
App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

When an accused challenges the length and manner of service of a sentence, this
court reviews the trial court‟s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in
passing sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Id. at 709. This court will uphold the trial court‟s sentencing
decision “so long as it is within the appropriate range and the record demonstrates that
the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Id. at 709-10. Moreover, under such circumstances, appellate courts may not
disturb the sentence even if we had preferred a different result. See Carter, 254 S.W.3d
at 346. 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
Comm‟n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

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 3. Enhancement and Mitigating Factors

Appellant argues that the trial court inappropriately applied the enhancement
factor that the personal injuries inflicted upon the victim were particularly great and that
the trial court erred in not applying any mitigating circumstances.

In analyzing the challenged enhancement factor, the trial court stated:

The Court finds that the testimony of the victim‟s grandmother, as
well as the victim impact statement, support the application of this factor.
[Angela] testified that the victim has not been the same since these
offenses, and that the victim has undergone and will have to continue to
undergo psychological treatment. The victim also stated in the victim
impact statement that she feels angry, scared and sad, and that this ordeal
has affected her relationships with men. However, the Court also
acknowledges that no expert testimony was presented as to the victim‟s
psychological injuries in comparison to those of other victims of sexual
battery. While this type of testimony is not required, it would aid the Court
in determining whether the injuries inflicted upon the victim were
“particularly great.” See State v. Arnett, 49 S.W.3d 250, 260 (Tenn. 2001)
(“[A]pplication of this factor is appropriate where there is specific and
objective evidence demonstrating how the victim‟s mental injury is more
serious or more severe than that which normally results from this offense.”)
Therefore, the Court will consider this factor, but will place more weight on
the third enhancement factor discussed below.

We agree with the trial court‟s analysis that while there was some evidence that
the victim‟s injuries were particularly great, the evidence was unclear without additional
expert testimony. However, even if the application of this enhancement factor was error
as appellant asserts, the trial court also properly applied the enhancement factor that
appellant abused his position of trust as the victim‟s stepfather to perpetrate the offenses.
The trial court also placed greater weight on this properly applied enhancement factor.
Regarding the mitigating circumstances, the trial court stated that it considered the
evidence presented and concluded that none of the mitigating circumstances were
applicable. As stated above, even if a trial court misapplies an enhancing or mitigating
factor in passing sentence, said error will not remove the presumption of reasonableness
from its sentencing determination as long as the sentence is within range and otherwise
complies with the sentencing guidelines. Bise, 380 S.W.3d at 709. Therefore, because
the trial court properly considered the evidence offered by the parties, stated on the
record what enhancement and mitigating factors were considered, and gave appellant a
within range sentence, the trial court did not abuse its discretion in enhancing appellant‟s
sentence.
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 4. Consecutive Sentencing

Appellant also argues that the trial court improperly aligned two of appellant‟s
convictions consecutively. Prior to 2013, on appellate review of sentence alignment
issues, courts employed the abuse of discretion standard of review. See State v. Hastings,
25 S.W.3d 178, 181 (Tenn. Crim. App. 1999). Our supreme court has since extended the
standard of review enunciated in State v. Bise, abuse of discretion with a presumption of
reasonableness, to consecutive sentencing determinations. State v. Pollard, 432 S.W.3d
851, 862 (Tenn. 2013); State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (modifying
standard of review of within-range sentences to abuse of discretion with a presumption of
reasonableness). Thus, the presumption of reasonableness gives “deference to the trial
court‟s exercise of its discretionary authority to impose consecutive sentences if it has
provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b).” Pollard, 432 S.W.3d at 861. The
procedure used by the trial courts in deciding sentence alignment is governed by
Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant to
a trial court‟s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be “no greater than that deserved
for the offense committed.” Id. § 40-35-103(2). The court may order consecutive
sentences if it finds by a preponderance of the evidence that one or more of seven
statutory criteria exists, one of which is that:

The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
victim or victims, the time span of defendant‟s undetected sexual activity,
the nature and scope of the sexual acts and the extent of the residual,
physical and mental damage to the victim or victims[.]

Id. § 40-35-115(b)(5). The Pollard court reiterated that “[a]ny one of these grounds is a
sufficient basis for the imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862
(citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court
properly articulates reasons for ordering consecutive sentences, thereby providing a basis
for meaningful appellate review, the sentences will be presumed reasonable and, absent
an abuse of discretion, upheld on appeal.” Id.

In considering whether consecutive sentencing was appropriate, the trial court
stated:

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 In this case, the Court finds that the Defendant was convicted of six (6)
counts of aggravated sexual battery against the minor victim, whose age
ranged from four (4) to six (6) years old when these offenses occurred. The
Court finds that the Defendant used his relationship with the victim to
perpetrate the offenses. The Court finds that the abuse lasted for an
extended period of time; the proof indicated that the abuse was ongoing for
two (2) years or more. The Court finds that the nature of the sexual acts
was especially egregious given the very young age of the victim. The
Court also finds based on the testimony of [Angela] and the victim‟s
statements in the victim impact statement that the victim has suffered
extensive residual and mental damage due to these offenses, and that she
will be required to undergo treatment for some time. In light of all of these
circumstances, the Court finds that consecutive sentences are appropriate in
this case.

We cannot conclude that the trial court abused its discretion in this regard. There
is sufficient evidence supporting the trial court‟s determination that consecutive
sentencing was justified, and the trial court articulated its reasoning on the record. As
such, the trial court did not abuse its discretion in aligning two of appellant‟s six
convictions consecutively.

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we affirm the
judgments of the trial court.

_________________________________
ROGER A. PAGE, JUDGE

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