State of Tennessee v. Jose Dimas Alvarado

06/27/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 18, 2017 at Knoxville

STATE OF TENNESSEE v. JOSE DIMAS ALVARADO

Appeal from the Criminal Court for Davidson County
No. 2014-C-2531 Steve Dozier, Judge

No. M2016-00378-CCA-R3-CD

The Defendant, Jose Dimas Alvarado, appeals as of right from his conviction for
aggravated sexual battery. See Tenn. Code Ann. § 39-13-504. The Defendant argues (1)
that the trial court erred in admitting the victim’s forensic interview as substantive
evidence; (2) that the trial court erred in allowing the State to present evidence and
argument that the Defendant had characteristics typical of perpetrators of child sexual
abuse; (3) that the trial court erred in allowing the prosecutor to make improper
statements during closing argument that referenced facts outside the record and shifted
the burden of proof to the Defendant; (4) that the trial court erred in instructing the jury
on aggravated sexual battery as a lesser-included offense of rape of a child; and (5) that
the trial court imposed an excessive sentence. Following our review, we affirm the
judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public
Defender (on appeal); and Georgia Simms and Daniel Satterfield, Assistant Public
Defenders (at trial), for the Defendant, Jose Dimas Alvarado.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Alyssa Henning, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION
 FACTUAL BACKGROUND

On September 26, 2014, the Davidson County Grand Jury indicted the Defendant
for one count of rape of a child, involving the eleven-year-old victim, M.A.1 On July 16,
2015, the trial court held a hearing on the State’s intent to use a recording of a forensic
interview.

Pre-Trial Hearing

The trial court held a pre-trial hearing to determine the admissibility of a video
recording of the victim’s forensic interview. At the hearing, counsel for the defense
requested that if the forensic interview was generally admissible, the court order the State
to redact ten specific portions of the interview. The trial court subsequently found that
the video recording of the forensic interview complied with the requirements of
Tennessee Code Annotated section 24-7-123. The trial court granted the State’s motion
to use the recording as substantive evidence at trial, subject to two redactions. The court
reasoned that two statements made by the interviewer, Barbara Tallent, were “overly
prejudicial and barred by Rule 403 of the Tennessee Rules of Evidence.” The following
two statements were redacted:

1. 34:33-34:41- Ms. Tallent: “That’s a lot to worry about. You had a lot of
things to think about.”

2. 36:41-36:50- Ms. Tallent: “That’s a lot of pressure on you and I’m really
sorry that you’ve been carrying that around. He had no right to do that.”

Jury Trial

The Defendant’s jury trial began on July 20, 2015. The victim testified that he
was thirteen years old at the time of the trial. He lived in Nashville with his parents and
his six siblings. The victim identified the Defendant and said that he knew him from
attending the same church. The victim agreed that something happened with the
Defendant one evening during a church service, but he did not remember the exact date.
The victim explained that he was attending an all-night service at his church that began at
7:00 p.m. and lasted until 6:00 a.m. the next morning. The victim stated that there was a
break in the service, and the attendees shared a meal. The victim said that following the

1
It is the policy of this court to protect the identity of minor victims. Therefore, we will use initials for
each minor involved in this case. In furtherance of this policy, we will also use initials for relatives and
family members of the victim.

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meal, the Defendant asked the victim to help him carry leftover food to his car. The
victim agreed and accompanied the Defendant to a dark area of the parking lot.

The victim testified that he was alone with the Defendant and that he had told no
one where he was going. The victim said that he knew the Defendant and had talked to
him at church prior to this night. When asked what happened when he and the Defendant
reached the car, the victim replied,

And then [the Defendant] told me to get in the car and so I did, right.
And like I was scared and then he told me to climb into the back of the car
and then he went to like the driver’s seat, the driver’s seat and then he got
in and he locked all of the doors and then he got in and he locked the
driver’s seat door and I went to the very back because he told me to go
there. And then he went to the back when I went to the back, he told me to
take my clothes off. And I was really scared and like I didn’t know what to
do so I just did what he said and I did, right.

And [the Defendant] was taking his clothes off. I was trying to find
a way out. Like, I was trying to see if like the back door was open or
something, it wasn’t. I was scared. My heart was beating really fast. I
remember he told me to make sure nobody [was] watching or nobody [was]
– or like if nobody [was] nearby and I was like just hoping someone would
be there.

The victim said that he did not see anyone nearby because it was dark, and it was
dark where the Defendant’s car was parked. The victim testified that the Defendant’s car
was red and that it contained “the driver’s seat, the passenger [seat,] and three seats for
like three people in the back, and then [there was] the very back part where you would
like store stuff and it was like a bunch of space.” The victim agreed that the three seats in
the back were in one row and that this row of seats connected with the back part of the
car so that there was not a separate trunk area. The victim asserted that he had not been
in the Defendant’s car before this evening. When asked what happened after the victim
had taken off his clothes and the Defendant had removed his own pants, the victim said
that the Defendant instructed him “to turn around and to like bend over.” The victim said
that he did this and then “remember[ed] just feeling a horrible pain” “in [his] rear end.”
Counsel for the State showed the victim two diagrams of a boy, and the victim circled the
area he was referring to as his “rear end.” When asked if he knew what was causing the
pain, the victim replied, “It was [the Defendant’s] private part” and that the Defendant’s
“private part” was “[i]nside” his anus. Counsel for the State showed the victim a diagram
of a man and asked the victim to circle what he was referring to as the Defendant’s
private part. The victim then identified the penis on the diagram.

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 The victim testified that after he felt the pain, the Defendant “took it out and he
was cleaning something.” When asked what the Defendant was cleaning, the victim said,
“It was my rear end, but I don’t know what it was” that the Defendant was cleaning off.
The victim explained that the Defendant used “his undershirt, like a white one he had” to
clean. The victim said that after cleaning, the Defendant “rolled [the shirt] up and . . . put
it outside.” He said that after that, the Defendant told the victim to “pull up [his] pants
and to get dressed.” The victim said that he got dressed and that the Defendant got
dressed, too. He said that the Defendant put on a different shirt from the one he used to
clean and instructed the victim not to “tell anybody.” The victim testified that he
returned to the church and did not tell anyone about what had happened because he “felt
scared.”

The victim agreed that at some point he did tell someone what happened that
night. He said that several months after the incident he told his mother. When asked
how it came about that the victim told her, he said, “I tried to do something horrible to
my brother.” He asserted that she “walked in on” the victim trying to “do what happened
to [him] to [his brother].” The victim said that his mother walked in “before it
happened[,]” and “a day after” he told her what the Defendant did to him. Counsel for
the State asked the victim what he remembered about that conversation and he responded,

It was a question like: She told me, like has something happened to
you that you’re not – you’re not the same person no more and like, and like
spending time with the family. And she just kept asking me and she was
like has someone done anything to you or has something done something –
like touched you or something. Like you can tell me. And I was like, no.
Like I told her several times, like no, and she was just like mentioning
names of people and she asked me again she was like, has someone done
something to you? And I was like yes. And then she was mentioning
names and then it came up to [the Defendant’s] name and I told her it was
him. And that’s what I told her.

The victim said that the Defendant’s name was not the first name his mother mentioned.
The victim agreed that counsel for the State had shown him “a video of [the victim]
talking to a woman named Barbara [Tallent] about what happened.” The victim agreed
that the woman in the video interviewed him about the incident with the Defendant, he
identified a disc containing the interview that he had previously initialed, and he asserted
that he told the truth during that interview. The disc containing the forensic interview
was entered into evidence and marked as Exhibit 3.

On cross-examination, the victim was asked about several details from the night of
the incident with the Defendant. The victim agreed that he remembered the Defendant’s

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having a red car, and he confirmed that he did not remember the exact date that this
happened. The victim said that “it was warm” outside, and when counsel for the defense
asked if it was summertime, the victim said, “I guess, yeah.” He confirmed that his
church had all-night vigils at approximately “the end of every month[,]” and he agreed
that he “remember[ed] this happening [during] one of the summertime” vigils. The
victim was then asked if he remembered telling Officer Timothy Miller that the
Defendant “tried to kiss [him] on the mouth[,]” and the victim replied, “I don’t remember
saying that.” The victim agreed that he did not tell Ms. Tallent that the Defendant tried to
kiss him on the mouth.

Dr. Verena Brown testified as an expert in child abuse pediatrics and in the field of
forensic examinations. Dr. Brown said that she was employed with Vanderbilt and
several times a month worked with Our Kids Clinic, which specialized in child sexual
abuse. Dr. Brown explained the standard procedure for when she sees a child in
conjunction with Our Kids Clinic:

[E]very child that we see in our program gets seen primarily or
initially by a social worker that will take the history from the parents of
what the allegations are. And then at that point, they will tell the clinician.
So in my case, if it’s my client, they will tell me what the allegations are, so
when I examine the child, I know what sort of things I’m looking for.

And then I will go into the room and talk to the parents or caretakers
about their medical history specifically. Meanwhile, if the child is old
enough to speak, the social worker will be talking with the child. After
that, we will do the physical exam.

Dr. Brown further explained that the parent and the child are interviewed separately.

Regarding the victim in this case, Dr. Brown testified that she performed an exam
on the victim in February 2014. She identified the “Our Kids report” on the victim as a
report generated by her and a social worker for Our Kids Clinic. She said that it
contained “the history that [the victim] gave and the documentation that this was a full
exam.” Dr. Brown read the medical history contained in the report, which included the
following:

When asked to tell [Dr. Brown] what occurred at church, [the
victim] reported, it was like October last year and that his family was
attending the church service that began at 7:00 p.m. and ended at 6:00 a.m.
He state[d] that they were eating and that he was sitting next to a man he
knew from church. He state[d] – quotes, this man was really kind to me, he
gave me candy. He state[d] that the man told him to take the leftover food
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and put it in his car. [The victim] said okay and began walking toward the
car, but it was dark and he became scared. He state[d] that he decided he
was not going to take the food to the car and turned around. He state[d] as
he turned around, the man was coming toward him and he told him to put
the food in the car. [The victim] state[d] he told the man quote I am not
going to go, I am scared end quote. But that the man continued to tell him
to go to the car.

[The victim] stated that when they got to the car, the man told him to
get in and asked – and he asked why. He state[d] that the man kept telling
him to get in and they both got in the car and the man locked the door.
[The victim] stated the man told him to pull down his pants and kept
repeating, quote make sure nobody come[s], end quote.

[The victim] stated, quote I was paralyzed, end quote. He state[d] he
became concerned that the man had a gun and that he did everything the
man told him to do because he did not know what could happen to him.
When asked what happened after the man pulled down his pants, [the
victim] state[d] that the man pulled down his pants and told him to bend
over. When asked what happened next, [the victim] stated quote he put his
private part in my butt, end quote. He state[d] that he was crying because
quote it hurt so bad, end quote. He state[d] the man kept telling him not to
make a sound and that the man continued to put it in his butt and then he
quote took off his shirt and he cleaned himself off and cleaned me off, end
quote.

When asked if he had seen the man put anything on his penis, [the
victim] said no. [The victim] also stated that he did not know what a
condom was. When asked if he saw anything come out of the man’s penis,
[the victim] said he did not know. When asked what he had cleaned off,
[the victim] said he did not know, but that the man told him that he was
going to clean his butt and clean himself.

[The victim] told him at that point the man told him quote you better
not tell anybody, end quote. He said he became concerned that the man
might hurt him or his family. [The victim] state[d] that the man then told
him to quote/unquote get out of the car. [The victim] state[d] that he [was]
not sure where the man went for the rest of the night, but that he does not
remember seeing him.

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 When asked if something like this had ever happened before, [the
victim] said no. When asked if it happened after this, he said no. [The
victim] stated that on another occasion while he was playing outside with
his friends – he th[ought] this occurred in November – the man kept calling
him, quote, [M.A.] come, [M.A. come], end quote. But that he ignored
him. With regard to any previous sexual abuse, [the victim] denies any.

When asked if there was any other contact during the incident, [the
victim] said no. When asked if there was anything else he needed to share,
[the victim] stated no.

Dr. Brown testified that the medical exam was normal, aside from a “little fissure
or a little opening of skin at the 12 o’clock position of the anus.” She explained that this
could be caused by “sexual abuse” or from “passing a large stool or something of that
nature.” She said that the exam was “four months after the incident, so it’s unlikely [the
fissure] was due to th[e] incident” involving the Defendant. When asked if she would
“expect to find an injury after an incident like the one that [the victim] disclosed[,]” she
responded, “Certainly not four months later. In fact, it’s actually unusual to find any sort
of injury at all after such a disclosure.” She further explained that “the anus heals very,
very quickly. And so it’s very[,] very normal to have a normal exam, especially [four]
months later.” She said that a rape kit was not collected due to the passage of time. She
said that a standard time to collect a rape kit from a child was “within three days of an
assault” because “[t]hat’s when you are likely to find evidence of DNA.” She confirmed
that it was “possible for a child to be anally penetrated and there be no medical findings.”

On cross-examination, Dr. Brown confirmed that “only one act of penetration”
was disclosed by the victim and that she was not “looking for any other type of sexual
conduct during that exam.” Dr. Brown also agreed that according to her information, the
“act of penetration occurred in October of 2013.” Dr. Brown agreed that during the
exam, she found no signs of “chronic trauma” and that she did not consider the “anal
fissure either a sign of acute trauma or chronic trauma.”

O.A. testified that she lived in Nashville with her husband and family and that the
victim was her son. She identified the Defendant and stated that she knew him because
he attended “the same church [she and her family] used to” attend. When asked how
long she had known the Defendant, she said “[m]ore than [fifteen] years[.]” She
explained that she “did not remember the exact year that he was there[,]” but the
Defendant had lived “on the other side” of the duplex that she and her family rented. She
said that he lived there “maybe [two], [three] years.” She confirmed that the victim knew
the Defendant through church and said that “[s]ometimes . . . [fifty], sometimes [forty]”
people attended their church. She agreed that the largest number of church attendees was

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“80” but explained that not “everybody goes” “every day[.]” She agreed that the victim
was “around the [D]efendant at church and church related activities.” O.A. confirmed
that on January 16, 2014, she observed her son “exhibiting some odd behavior.” She said
that she saw the victim doing “something suspicious” to another one of her sons, J.A.
She asked J.A. if the victim had done anything to him, and she said that J.A. responded,
“[N]o, he just tried to touch my underwear.”

O.A. said that the next day, she told her nineteen-year-old daughter about the
situation, and her daughter told her “somebody is doing that to him. So you need to ask
him.” O.A. said that she decided to talk to the victim and asked him,

Why did you try to do this to J.A. to try to . . . pull his pants down?
So I said to him, is there someone doing that to you?

So he [was] just turning to look at me. And I kept saying is there
somebody doing this to you? And I told him, you have to tell me the truth.
And he just kept looking at me and crying. And I said . . . tell me who it is.
Is it someone from school, is it a teacher? He said no. And I said is [it]
someone here at home? I said is it one of your uncles? He said no. And I
said then who? And then I said, where, at church? And he said yes. And I
said who? Who? And he said [the Defendant].

She explained that the victim did not give her any specifics, but that he “just kept crying.”
O.A. called her husband and told him “what [she] had discovered.” She said that her
husband called an elder from their church, Ignacio Perez. Mr. Perez came to their home
and spoke with the victim and his parents. O.A. stated that he encouraged them to “not
stay quiet” and “to report this to the police.”

O.A. explained that the following day, she called the victim’s pediatrician, Dr.
Carson. She said that Dr. Carson returned her call, and O.A. told her what happened with
the victim. She said that the doctor referred her “to a counselor to tell [her] what [she]
should do.” O.A. said that she talked to this counselor, who told her that she “needed to
report [the incident] to [the] police.” O.A. said that after speaking with the counselor on
Monday afternoon, she called the police immediately. She said that the police and a
detective came to her home and that she took the victim to see a doctor “the next day or
two days after.”

When asked if she had noticed anything regarding the victim’s behavior about
attending church before the victim told her about the incident, she said, “Sometimes [the
victim] didn’t want to go. And I would tell him go, to go with [his] dad and go to the
church. He [would] say no, I don’t want to go, and I would insist that he should go.” She

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said that this behavior started about six months before the victim told her what had
happened with the Defendant.

On cross-examination, O.A. said that the vigils at her church occurred at the end
of every month. She explained that many people attended, and during a break in the
service, it was common for adult church members and the children to go outside and play
for about thirty minutes. O.A. confirmed that during these services, she had not seen
“anything strange between [the Defendant] and [the victim].” She also agreed that she
had seen no physical signs of abuse on the victim; however, she said that he was “more
quiet and sad and lonely” during the months leading up to January 2014.

J.F.A.C. testified that he was married to O.A. and that the victim was their son.
He explained that he lived with his family in Nashville and that their home was divided
into two units. J.F.A.C. stated that his family lived in one unit and that they rented out
the second unit. J.F.A.C. identified the Defendant and said that he met him at a church in
Nashville in 1997 or 1998. He explained that the Defendant rented the second unit of
their home in either 2007 or 2008 and that he remained there for a “year and a half or two
years.”

J.F.A.C. recalled that on January 17, 2014, his wife called him while he was at
work and informed him that the Defendant had been abusing the victim at the church.
J.F.A.C. said that he went home and called Mr. Perez and that Mr. Perez came to his
home and spoke with J.F.A.C., O.A., and the victim. J.F.A.C. explained that they took
the victim to a clinic and then called the police at the suggestion of personnel at the
clinic. He said that an officer came to their home. He said he and his wife took the
victim to see a physician and that they took “him to a place where they d[id] therapy.”
Regarding the specifics of the incident involving the Defendant, J.F.A.C. said that he
“tried many times to talk to [the victim], but he never wanted to tell [J.F.A.C.]
specifically anything.” He said that the victim met with many people regarding the
incident including treatment providers and the District Attorney. He testified that either
he or his wife took the victim to these meetings. He explained that when the victim met
with a therapist, neither he nor his wife were in the room because “it [was] treatment just
treatment between . . . that person and [the victim.]”

J.F.A.C. explained that prior to the victim’s allegations, his relationship with the
Defendant was “very good.” When asked to explain his family’s relationship with the
Defendant, he responded, “Spiritually speaking, it was a relationship through the church.
It was a spiritual relationship that [grew].” He said that as a member of the church, the
victim spent time with the Defendant. He agreed that the church regularly held nighttime
vigils and that both the victim and the Defendant attended these services.

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 J.F.A.C. also testified that he placed a telephone call to the Defendant that was
recorded for the police. He explained that a detective set up the recorded call and
remained with J.F.A.C. while he spoke to the Defendant. J.F.A.C. said that he and the
Defendant spoke Spanish during the call. He said that he called the Defendant to discuss
the incident with the victim. J.F.A.C. said that he asked the Defendant if he attacked the
victim and that the conversation lasted approximately twenty to thirty minutes. When
asked about his impression after the telephone call, J.F.A.C. said, “At the end of the call,
after making so many questions for him to tell me, he told me that, yes . . . that he had
done it and that if that would make me feel better, he accepted that he did that.”

On cross-examination, J.F.A.C. confirmed that he spoke with the church elder, Mr.
Perez. He agreed that two days later he took the victim to a clinic and called the police
after speaking with a doctor. J.F.A.C. said that after he called the police, Officer Miller
came to his home and spoke with him and his family in English. He agreed that he
translated some of Officer Miller’s questions for O.A. He said that after speaking with
the family together, Officer Miller spoke with the victim separately in a different room.
J.F.A.C. agreed that after the victim told his parents about the incident with the
Defendant, he and his family quit attending the church. He also confirmed that “if [he]
had known anything was wrong before [the victim] told [him] about this, [he] would have
quit going to church a long time before that.”

J.F.A.C. was also questioned about the overnight vigils at the church. He agreed
that the vigil would last from 6:00 p.m. to 6:00 a.m. He confirmed that he did not
remember “any service where [the victim] disappeared.” However, he explained that it
was “very hard to tell because [he] was an elder in the church and [he] would be focused
on working on what was needed for the service of the church.” J.F.A.C. agreed that he
did not observe the victim and the Defendant leave the church together, but he said that
he did see something “strange happen between [the victim] and [the Defendant].”
J.F.A.C. explained that the Defendant “was very friendly with children. He would buy
them candy.”

When asked about the recorded telephone conversation with the Defendant,
J.F.A.C. agreed that throughout the discussion, the Defendant told him “no, no, no, . . .
this did not happen.” He said that it was at the end of the conversation when the
Defendant told J.F.A.C. that he had touched the victim and “accept[ed] the situation.”

On re-direct examination, J.F.A.C. testified that the children of the church liked
the Defendant. He claimed that when the Defendant “would walk into the church, the
children would follow him.” When asked “isn’t it correct that also being active in the
church the [D]efendant would go on trips with other members of the church, including
children, members of the church, isn’t that correct?” he replied, “Yes, it’s true.”

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 Sergeant John Farrell testified that he was employed as a detective in the sex
crimes unit of the Metropolitan Nashville Police Department (MNPD) in January 2014.
He identified the Defendant and agreed that he conducted an investigation into
“allegations of child sexual abuse involving the [D]efendant.” He explained that during
such an investigation, it was not typical for a responding officer to interview children
who made allegations of sexual abuse because they were not trained to do so. Sergeant
Farrell said that he responded to the scene in this case but that he did not interview the
victim.

He explained that the protocol for this type of situation was as follows:

[W]hen a child makes a . . . disclosure of sexual abuse to, say, a
parent or some type of guardian, and/or whoever, a teacher maybe, they
might call the police or notify [the Department of Children’s Services
(DCS)]. Once we get the information, we will go usually speak to the
person or people that that child disclosed that information to. In the
meantime, we will be in contact with DCS. And usually DCS or sometimes
our unit will set up what we call a forensic interview to have that child
interviewed at what we call a child advocacy center. So that’s kind of how
the child gets interviewed and you know the interviewers at the child
advocacy center are highly trained to do this type of interview.

He explained that the interviewers at the child advocacy center are trained differently
than patrol officers and said that “they go through many courses to learn how to do this.
This is what they do day in and day out.” Sergeant Farrell stated that another reason he
did not interview the victim when he responded to the scene was because the officers
tried “to keep the amount of interviews of the victim to a minimum.”

Sergeant Farrell said that when he arrived at the family’s home, he was not the
first officer to respond to the scene. He explained that when he arrived, he spoke to the
patrol officer to determine “what was going on and what the allegations were.” He said
that he spoke to the parents of the victim. Sergeant Farrell explained that he spoke in
English with the parents and that the victim’s father “communicate[d] pretty well” and
was “interpreting what [the victim’s mother] was saying.” He confirmed that there was
no official translator on the scene.

Sergeant Farrell agreed that he suggested that the victim’s father assist him in
obtaining a recorded telephone conversation with the Defendant. He explained that “[the
victim’s father called the [Defendant] . . . on the telephone. And basically talked to him
about these allegations. While speaking with him, we record[ed] the call in hopes of
gaining some sort of confession or admission.” Sergeant Farrell said that he encouraged

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J.F.A.C. to “tell [the Defendant] that [J.F.A.C.] knew about these allegations and . . .
confront him about it and ask him to explain himself[.]” He said that J.F.A.C. agreed and
that the recorded telephone conversation occurred in Spanish. Sergeant Farrell testified
that he did not speak Spanish, so he was not able to understand the conversation as it was
taking place. However, he said that during the telephone call, he observed that J.F.A.C.
was “upset and emotional” and “at one point he may have been crying.” He agreed that
he gave J.F.A.C. directions regarding the recorded conversation before the telephone call
took place and that he did not give directions throughout the telephone conversation. On
cross-examination, Sergeant Farrell agreed that he sent the “recorded [tele]phone call to
other officers for interpretation” because he did not speak Spanish. A transcript of the
English translation of the conversation was entered into evidence, and it was read
individually by all of the jury members.

Sergeant Farrell agreed that he became aware during an interview that the victim
made a disclosure about “the [D]efendant[’s] using some sort of shirt to clean [the victim]
and himself.” He testified that he did not execute a search warrant during his
investigation to collect this shirt or other evidence because the incident had occurred
several months before the victim made a disclosure. He said that it was not likely
officers would find “specific DNA like spermatozoa.” Sergeant Farrell also said that
when evidence is “a clothing item,” “it can [be] easily laundered. And generally
speaking people wash their clothes.”

Barbara Tallent testified that she was a forensic interviewer at the Nashville
Children’s Alliance. She explained that the Nashville Children’s Alliance was “a
nonprofit agency in Davidson County where a CPIT [child protective investigative team]
meets.” She said that it was where meetings were held for “all [who were] involved in
investigating and follow-up, and prosecution, and treatment and therapy, play therapy,
things like that.” When asked about the protocol for interviewing a child, she explained,

It’s neutral if we are not trying to – that we ask non-leading
questions. Non suggestive questions. It [had] a lot of open-ended
questions. We have to take into consideration the child’s age and
developmental abilities as well as any kind of special things that might need
to be addressed or taken into consideration. And we are trained in how to
follow that – it’s . . . structure[d] but it’s flexible and there are a lot of
step[s] that we follow that we have the [flexibility] to kind[] of move those
steps around a little bit.

She further explained that the purpose of the interview was not “to create a scenario” but
to “listen an[d] ask the right questions so that a child is able to tell information” or “give

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a disclosure regarding abuse[.]” Ms. Tallent confirmed that the Nashville Children’s
Alliance strictly followed protocols.

Ms. Tallent agreed that she interviewed the victim in this case at the Nashville
Children’s Alliance. The State played a redacted version of the video recording of this
interview for the jury. In response to questions from Ms. Tallent, the victim explained
that the Defendant “raped” him and that is why he was at the Nashville Children’s
Alliance speaking with Ms. Tallent. The victim explained that during an all-night church
service, the Defendant asked the victim to accompany him to help load food into his car.
The victim told Ms. Tallent that it was very dark outside in the parking lot and there were
very few lights. He said that the Defendant’s car was red. Ms. Tallent asked the victim if
it was warm outside that evening, and he said that “it was summertime.” The victim said
that he became frightened and “tried to run away, but the Defendant stopped” him. He
explained that the Defendant told him to get in the car. The Defendant got in the car also
and “locked all the doors from the inside.” The victim said that the Defendant instructed
him to “take his pants down” and then the Defendant “stuck his thing in my butt.” The
victim said that the Defendant’s “thing was his private part.” The victim explained that it
“hurt a lot” and he “felt something wet and weird on his skin.” The victim said that the
Defendant took off his shirt and used it to clean the victim. The victim stated that the
Defendant instructed him not to tell anyone and that he was “scared and embarrassed and
worried that something bad might happen to his family.” The victim explained that the
Defendant instructed him to “get out of the car” and that the victim “got out and ran
really fast back into the church and acted like nothing had happened.” The victim said
that he did not tell anyone about the incident because he was afraid but that be eventually
told his mother after she “repeatedly asked him if something had happened to him.”

Counsel for the Defendant called Officer Timothy Miller, who testified that he
worked with the MNPD. When asked to describe how he was trained to conduct
preliminary investigations, he responded, “[F]irst of all, make sure the scene you are
going to is safe, identify who is the victim, who is the suspect. Identify any witnesses, try
to separate parties . . . , [obtain] individual statements.” Officer Miller explained that he
was trained to do “field site crime scene interviews” and said that these interviews were
for the purpose of “gather[ing] pertinent information” but were not the same as
“advance[d] interviewing” done by “a detective[.]” He confirmed that he took notes
during preliminary interviews and then completed a report that included “what the victim
told [him] . . . victims, witnesses, any other suspects[,] pertinent information or people[,]”
and parents if [the victim is] a juvenile[.]” He also included “a synopsis of what the
victim told” him.

Officer Miller testified that on January 11, 2014, he went to the victim’s home to
“investigate[] the alleged rape” of the victim. He said that after arriving at the home, he
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spoke with the victim and his father. Officer Miller explained that because the victim
was a juvenile, he “tried to speak mainly to his father, but [the victim] was there and
[Officer Miller] did have interaction with both [the victim and his father] at the same
time.” When asked if the victim told him anything about the Defendant’s “trying to kiss”
the victim, Officer Miller replied, “According to the report, [the Defendant] began trying
to kiss [the victim] on the mouth and [the victim] struggled to stop him based on [the
victim’s] statements.”

On cross-examination by the State, Officer Miller confirmed that he was a patrol
officer and routinely responded to 911 calls. He agreed that on January 11, 2014,
responding to the call regarding the victim “was more than likely one of many calls that
[he] responded to as part of [his] shift[.]” Officer Miller agreed that after leaving the
scene at the victim’s home, he “never had anything else to do with this case.” He also
confirmed that when he took notes at a scene during an interview, he was “not actually
putting that information into the report at that time.” He confirmed that he “would go
later and put that information into [his] report” and that “sometimes mistakes are made
when [he was] inputting information into an incident report.” Officer Miller agreed that
the likelihood of his making a mistake increased if he was “speaking to more than one
individual.” He agreed that he spoke with the victim and J.F.A.C. on the front porch of
their family home and that he became aware that J.F.A.C.’s first language was not
English. Officer Miller confirmed that he did not speak Spanish but agreed that he was
able to successfully communicate with J.F.A.C. He agreed that at some points during the
conversation, both the victim and J.F.A.C. would speak simultaneously. Regarding his
police report, Officer Miller assented that “some of the statements that [he] wrote down
where [he] would start with [the victim] stated blank could have been information that the
father . . . gave to [him] that [he] then wrote down as [the victim] stated[.]” Officer
Miller agreed that he did not record the interview with the victim and J.F.A.C. and that he
did not record direct quotations in his police report.

On redirect examination, defense counsel asked Officer Miller the following
questions:

Q. The District Attorney asked you or was saying that you were using
[the victim’s father] and [the victim] interchangeably[.] [I]f we look at
your report on page four of that report, the second full paragraph, eight
lines down from the top, I want to make sure I’m saying this right, you
wrote, [the victim] stated that [the Defendant] asked him to go outside the
church and retrieve something from [the Defendant’s] vehicle, stop, did I
read that correctly?

A. Yes.

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 Q. [T]hen on the third paragraph you wrote according to [the victim’s]
statements about the incident, [the Defendant] began trying to kiss him on
the mouth while he struggled to stop him, did I read that correctly?

A. Yes.

Q. And finally in the [fourth] paragraph, you wrote: [the victim] stated,
he and [the Defendant] went back inside the church after the incident, did I
read that correctly?

A. Yes.

At the conclusion of the trial, the jury convicted the Defendant of the lesser-
included offense of aggravated sexual battery.

Sentencing Hearing

After the Defendant’s jury trial, the trial court conducted a sentencing hearing,
which proceeded as follows. The victim testified that in addition to the incident at the
church, there were other incidents involving the Defendant that made the victim feel
uncomfortable. The victim explained that he went on a church trip with the Defendant
and said,

We were going to Kansas, like the whole church like in the van that
they have, and like we were at the back with the other kids and [the
Defendant] was back there, too. And I just remember he was like really
close to me, and when he was there, he was like touching me. So I got
scared, so I moved to like the front – like the one before me. And then he
moved there too again. And then we came to where we were going to stop,
the place where we were going[.]

When asked what part of his body the Defendant was touching, the victim
responded, “My behind.” The victim testified that this incident occurred before the
incident at the church.

Augustine Menge testified on behalf of the Defendant. She said that she had
known the Defendant since approximately 2010, when she joined the same church he
attended. Ms. Menge explained that there were church services on “Mondays,
Wednesdays, Fridays, Saturdays[,] and Sundays.” She said that she saw the Defendant
“in church and [her] husband and [the Defendant] would work together.” She said that
she and her husband “visit[ed] him in his house” and saw him “very often.” When asked
about the Defendant’s reputation at work, Ms. Menge replied, “Everybody really loves
-15-
him.” Ms. Menge testified that the Defendant was “very responsible” and that he often
volunteered to drive for church road trips. She explained that she and her husband had
children who went on these trips and that other children from the church went on these
trips. When asked why the Defendant was often asked to drive on these trips, Ms. Menge
said, “Because we [were] aware of his ability of driving long distances and he [was] also
very capable and responsible[.]” She further explained that the church van held fifteen
people and that “there were children in this van, so [church members] really want[ed] to
confide in somebody who could actually get [them] there safely and bring [them] back
safely.” Ms. Menge testified that the Defendant was “very good with [her] kids.”

Salvador Perez testified that he first met the Defendant in El Salvador when Mr.
Perez “was about 18 years old.” Mr. Perez testified that the Defendant moved to
Nashville in 2000. He explained that he knew the Defendant to be “a very good person.”
Mr. Perez said that after the Defendant moved to Nashville, “[h]e [was] a very
hardworking person. He [was] very dedicated, [was] always working. And he [had]
worked in several different fields.” Mr. Perez testified that the Defendant had three
daughters who lived in El Salvador and were approximately ages twenty, eighteen, and
seventeen. When asked what kind of father the Defendant was, Mr. Perez replied, “He
ha[d] been a very good father. He [was] very responsible and very hardworking for his
children.” Mr. Perez agreed that the Defendant sent his daughters money and that “[h]e
always communicated with his children and he help[ed] his parents because they [were]
elderly[.]” Mr. Perez concluded that he knew the Defendant as “an excellent person” and
that he helped “anybody who [had] ever come to him for help[.]”

Mario Hernandez testified that he is the Defendant’s brother. He said that after
coming to the United States, the Defendant worked in construction and “was a good
worker.” He said that the Defendant had a “very good” relationship with the community.
When asked what kind of brother the Defendant was, Mr. Hernandez replied that he was
“very good.” Mr. Hernandez agreed that the Defendant had a family and was “a good
father.” He explained that the Defendant had three daughters living in El Salvador and
that the Defendant had “always been responsible” as a father. Mr. Hernandez testified
that “one of [the daughters was] studying and she had to stop her studies due to the lack
of financial support from her father” after he was arrested.

After the final witness testified, counsel for the Defendant also asked the trial
court to take note that several members of the Defendant’s church-family and friends
were present to offer their support. At the conclusion of the sentencing hearing, the trial
court sentenced the Defendant to serve an eleven-year sentence at one hundred percent
with the Tennessee Department of Correction.

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 The Defendant filed a motion for a judgment of acquittal and a motion for a new
trial. The trail court denied both motions, and the Defendant filed a timely appeal with
this court.

ANALYSIS

I. Forensic Interview

The Defendant argues that the trial court erred in admitting the video recording of
the forensic interview as substantive evidence. First, the Defendant contends that the
video recording was not generally admissible pursuant to Tennessee Code Annotated
section 24-7-123 and “that the trial court abused its discretion in admitting the recording
in this case because it improperly bolstered the testimony of the alleged victim.” The
Defendant asserts that the interview “served only to bolster the testimony of the alleged
victim[] and created the danger of allowing the jury to be influenced to decide the case on
the repetitive nature of the interview instead of trial testimony.” The Defendant argues
that neither Tennessee Code Annotated section “24-7-123 nor State v. McCoy, 459
S.W.3d 1, 10 (Tenn. 2014), support automatic admissibility of forensic interviews as
substantive evidence” and contends that the trial court abused its discretion by admitting
the video recording. Moreover, the Defendant argues that the video recording should
have been excluded under section 24-7-123(b)(2)(K) as “any other factor deemed
appropriate by the court” because the video recording improperly bolstered the victim’s
testimony.

Alternatively, the Defendant contends that should the video recording be generally
admissible, the trial court erred in not redacting portions of the interview that were
irrelevant and unduly prejudicial. The State responds that the trial court properly
exercised its discretion in admitting the recording of the victim’s forensic interview as
substantive evidence pursuant to Tennessee Code Annotated section 24-7-123.

A. General Admissibility

Tennessee Code Annotated section 24-7-123(a) states that

a video recording of a child by a forensic interviewer containing a
statement made by the child under thirteen years of age describing any act
of sexual contact performed with or on the child by another is admissible
and may be considered for its bearing on any matter to which it is relevant
in evidence at trial of the person for any offense arising from the sexual
contact if the requirements of this section are met.

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Tennessee Code Annotated section 24-7-123(b) provides that a video recording of a
forensic interview may be admitted if:

(1) This child testifies, under oath, that the offered video recording is a true
and correct recording of the events contained in the video recording and the
child is available for cross[-]examination;

(2) The video recording is shown to the reasonable satisfaction of the
court, in a hearing conducted pre-trial, to possess particularized guarantees
of trustworthiness. In determining whether a statement possesses
particularized guarantees of trustworthiness, the court shall consider the
following factors:

(A) The mental and physical age and maturity of the child;

(B) Any apparent motive the child may have to falsify or distort the event,
including, but not limited to, bias or coercion;

(C) The timing of the child’s statement;

(D) The nature and duration of the alleged abuse;

(E) Whether the child’s young age makes it unlikely that the child
fabricated a statement that represents a graphic, detailed account beyond the
child’s knowledge and experience;

(F) Whether the statement is spontaneous or directly responsive to
questions;

(G) Whether the manner in which the interview was conducted was
reliable, including, but not limited to, the absence of any leading questions;

(H) Whether extrinsic evidence exists to show the defendant’s opportunity
to commit the act complained of in the child’s statement;

(I) The relationship of the child to the offender;

(J) Whether the equipment that was used to make the video recording was
capable of making an accurate recording; and

(K) Any other factor deemed appropriate by the court[.]

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Id. § 24-7-123(b) (emphasis added). If the court determines that the video recording is
not trustworthy, the inquiry ends, and the evidence will not be admitted. See id. § -
123(b)(2). Ultimately, discretion regarding the admissibility of the evidence remains
with the trial court. See id. § -123(a).

The Defendant relies on State v. Herron, 461 S.W.3d 890 (Tenn. 2015), to argue
that the forensic interview was improperly admitted to bolster the victim’s testimony.
See id. at 904 (holding that “the trial court abused its discretion by admitting [the
victim’s] recorded forensic interview during her direct examination”). The victim in
Herron was sixteen years old at the time of her forensic interview. In State v. Travis
Smith, No. W2015-02360-CCA-R3-CD, 2017 WL 1959500, at *15 (Tenn. Crim. App.
May 11, 2017), the defendant similarly argued that under State v. Herron, the trial court
improperly admitted a recording of the victim’s forensic interview to bolster the victim’s
trial testimony. However, this court held that the defendant in Smith mistakenly relied on
Herron because “Herron specifically noted that [Tennessee Code Annotated section 24-7-
123] did not apply because the victim in that case was above the age required by the
statute at the time she was interviewed.” Smith, 2017 WL 1959500, at *15. The Travis
panel concluded that the victim’s forensic interview was properly admitted under
Tennessee Code Annotated section 24-7-123 because “the statutory requirements were
met.” Id.

Similarly, the Defendant in this case has mistakenly relied on Herron to support
his contention that the victim’s forensic interview was improperly admitted. Here, the
trial court held a pre-trial hearing to determine the admissibility of the forensic interview
in accordance with Tennessee Code Annotated § 24-7-123(b). The record reflects that
the trial court considered this statute in making its determination regarding the
admissibility of the video recording. The victim testified under oath that the video was a
true and correct recording of the events, and he was subjected to cross-examination by
defense counsel. See § -123(b). The forensic interviewer testified, and the trial court
determined that she met the requirements of Tennessee Code Annotated section 24-7-
123(b)(3). The trial court also determined that the video recording had particularized
guarantees of trustworthiness. See id. § 24-7-123(b)(2). Furthermore, the Defendant
does not contend that the requirements of subsection (b) were not met. We conclude that
the statutory requirements are met and that the victim’s forensic interview was properly
admitted.

B. Portions of Interview Not Properly Redacted

Alternatively, the Defendant argues that even if the forensic interview was
generally admissible, several statements from the interview should have been redacted
because they violate various Tennessee Rules of Evidence. The Defendant contends that

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the following statements from the victim’s forensic interview should have been redacted
because they were “irrelevant and unduly prejudicial”:

- [25:45-26:15] Ms. Tallent: That makes a lot of sense . . . you know
that this isn’t your fault. You did not do anything to deserve that. [The
Defendant] shouldn’t have done that and it was his bad choice, and I’m so
sorry.
- [29:59-21:20] Ms. Tallent: Had [the Defendant] done anything
before that made you feel funny or weird, or different?
 Victim: “[The Defendant was] always with other men. It’s
really weird that he’s always with this other man. It’s
awkward.
- [35:47-35:49] Ms. Tallent: I’m so sorry.
- [37:40-37:45] Ms. Tallent: You said your heart was pounding, which
makes sense.
- [41:10-41:16] Ms. Tallent: You know that [your parents’] anger and
being upset is not because of anything you’ve done, right? . . . It shouldn’t
have happened to you[,] but you didn’t do anything wrong. [The
Defendant] did.
- [48:11-49:03] Ms. Tallent: Do you know if [the Defendant has] done
something to anyone else?
 Victim: I don’t know. . . . I heard that he used to have men
over and women and do stuff to them . . . but I don’t know if
that’s true. That’s what I heard.
- [50:10-52:15]: The victim describes an incident at school involving
another student in his class. He explained that the student kicked open the
door to the bathroom stall that the victim was using and that the victim
closed the door back and informed his teacher about the incident.

This court has held that Tennessee Code Annotated section 24-7-123

does not “remove the discretion of a trial judge in making determinations of
logical or legal relevancy.” State v. Mallard, 40 S.W.3d 473, 483 (Tenn.
2001). Rather, the statute provides that a recording of a forensic interview
“may be considered for its bearing on any matter to which it is relevant....”
Tenn. Code Ann. § 24-7-123(a) (emphasis added). A trial court may
exclude a recording if it finds that it is not relevant to the issues at trial.
Moreover, even if the video recording satisfies the statutory prerequisites in
section 24-7-123, the trial court is afforded the discretion to determine that
the recording is nevertheless inadmissible. See Tenn. Code Ann. § 24-7-
123(b) (providing that the “video recording may be admitted”)
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State v. Marvin Davis, No. W2013-00656-CCA-R3CD, 2014 WL 1775529, at *8 (Tenn.
Crim. App. May 1, 2014).

The general admissibility of evidence is governed by Tennessee Rules of Evidence
401 and 403. Under these rules, the trial court must determine, first, whether the
evidence offered is relevant. Tenn. R. Evid. 401. Evidence is deemed relevant if it has
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. Although relevant evidence is generally admissible, see
Tennessee Rule of Evidence 402, it “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence[.]” See Tenn. R. Evid. 403; State v. Banks, 564
S.W.2d 947, 950-51 (Tenn. 1978). The term “unfair prejudice” has been defined as “[a]n
undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Banks, 564 S.W.2d at 950-51. This court has also stated
that “[p]rejudice becomes unfair when the primary purpose of the evidence at issue is to
elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v.
Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of
Federal Evidence, 182-83 (2d ed. 1986)).

The Tennessee Rules of Appellate Procedure provide for harmless error review in
such cases. See Tenn. R. App. P. 36(b). Improperly admitted evidence is reviewed under
a non-constitutional harmless error analysis. State v. Jeff Carter, No. 2009-02399-CCA-
R3-CD, 2010 WL 5343212 at *13 (Tenn. Crim. App. Dec. 16, 2010) (citing State v.
Powers, 101 S.W.3d 383, 397 (Tenn. 2003)). In determining whether non-constitutional
errors are harmless, “Tennessee law places the burden on the defendant who is seeking to
invalidate his or her conviction to demonstrate that the error ‘more probably than not
affected the judgment or would result in prejudice to the judicial process.’” State v.
Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (quoting Tenn. R. App. P. 36(b)). While
substantial evidence of the defendant’s guilt makes it difficult for “the defendant to
demonstrate that a non-constitutional error involving a substantial right more probably
than not affected the outcome of the trial,” harmless error inquiry “does not turn upon the
existence of sufficient evidence to affirm a conviction or even a belief that the jury’s
verdict [wa]s correct.” Id. at 372. Rather, “the crucial consideration is what impact the
error may reasonably be taken to have had on the jury’s decision making.” Id.

Here, even if the statements challenged by the Defendant were improperly
admitted under the Tennessee Rules of Evidence, any error was harmless. None of the
statements in the video were so prejudicial that they more probably than not affected the
jury’s decision making. The victim’s story regarding the incident in the bathroom at
-21-
school was not relevant; however, it had nothing to do with the Defendant. Moreover,
the trial court did redact two of Ms. Tallent’s comments to the victim that were overly
prejudicial; yet, the trial court did not find any of the statements the Defendant
challenged to be overly prejudicial. Although the victim talked about other behavior by
the Defendant, such behavior did not involve children, and the victim stated that he was
unsure if the allegations involving others were true. Additionally, men spending time
with other men has no inherent negative sexual connotation. The other statements by the
interviewer were simply statements of empathy. We conclude that any error in admitting
the above statements was harmless.

II. Behavioral Characteristics Typical of Perpetrators of Sexual Abuse

The Defendant argues that the trial court erred in allowing “the State to present
evidence and argument suggesting that the Defendant displayed behavioral characteristics
typical of perpetrators of child sexual abuse.” The State responds that the testimony
challenged by the Defendant “did not constitute proof suggesting the Defendant exhibited
behavior typical of child predators or propensity evidence.” Furthermore, the State
contends that this issue is waived because the Defendant failed to object to the comment
in question and that the Defendant has failed to demonstrate plain error. We agree with
the State.

The following testimony during defense counsel’s cross-examination of the victim
at trial gave rise to the Defendant’s argument on appeal:

Q: And you never saw anything strange happen between [the
victim] and [the Defendant]?

A: Yes, I would say that [the Defendant] was very friendly with
children. He would buy them candy.

The following colloquy occurred during the State’s redirect examination of the
victim’s father:

Q: [J.F.A.C.], [defense counsel] asked you about . . . the situation
with her about the [D]efendant being friendly with the children of the
church?

A: Yes.

Q: And did the – to you knowledge did the children of the church
like the defendant?

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 A: On, yes. He would walk into the church, the children [would]
follow him.

Q: You told us . . . that he would give them candy –

At this point, counsel for the Defendant requested a bench conference out of
hearing of the jury. Counsel for the State explained that he was asking the victim’s father
to clarify what he was talking about when he stated that the Defendant gave the kids
candy. Defense counsel responded that there was nothing to clarify about the statement
but failed to make an objection or request the court strike the statement. The prosecutor
did not ask the witness anymore questions regarding the Defendant’s giving the children
candy.

Although the issue was raised by the Defendant on appeal, any error was
unattended by a contemporaneous objection at trial. See Tenn. R. Evid. 103 (stating that
a timely objection “stating the specific ground of objection” is necessary to preserve
claim of erroneous admission of evidence); see also State v. Robert Simerly, No. E2002-
02626-CCA-R3-CD, 2004 WL 443294, at *5 (Tenn. Crim. App. Mar. 11, 2004).
Accordingly, the Defendant has waived our consideration of this claim. See Tenn. R.
App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”). It is thus reviewable only
for plain error. See Tenn. R. App. P. 36(b) (stating that this court may notice an error as
plain error if the error affected the substantial rights of an accused and if notice of the
error is necessary to do substantial justice).

In determining whether plain error review is appropriate, the following factors
must be established:

(a) the record ... clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641–42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of
establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.
-23-
2007) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The appellate court
need not consider all five factors if any single factor indicates that relief is not warranted.
Smith, 24 S.W.3d at 283.

Here, a witness testified that the Defendant “gave all the kids candy.” This
statement was in response to a question by defense counsel during cross-examination.
On redirect, the witness was asked to clarify, and following a bench conference, was not
asked anymore questions about candy. We note that the effect of giving children candy is
not necessarily indicative of sexual predators. Thus, the Defendant has failed to show
that a clear and unequivocal rule of law has been breached. Moreover, the Defendant has
failed to show that a substantial right of the accused has been breached. The comment
was not overly prejudicial, and the State used it to help establish the Defendant’s
relationship with the victim. Therefore, he is not entitled to plain error relief.

III. Closing Argument

The Defendant argues that he is entitled to a new trial due to prosecutorial
misconduct during closing argument. Specifically, he argues that the State committed
prosecutorial misconduct when “the prosecutor improperly argued matters outside the
record, speculating that the [D]efendant’s motivation for having a sexual encounter with
a child was to avoid ‘strings’ that come with adult relationships.” The Defendant also
contends that the prosecutor “effectively shifted the burden of proof to the [D]efendant,
arguing that ‘the [D]efendant is the reason that everyone had to come into this
courtroom.’” The State responds that the prosecutor’s comments during closing
argument did not constitute misconduct. We agree with the State.

The prosecutor’s specific comments to which the Defendant objects occurred
during closing argument and are as follows:

And of the [J.F.A.C.’s] questions [during the recorded phone call] –
one of [J.F.A.C.’s] questions is very relevant to your analysis. He say
[Defendant], please have the courage to tell me why. Why, [Defendant],
having older women and older men, why [Defendant], why have you done
that to my son.

And the answer to that question is in the question. Because the
answer is the [D]efendant did this [to] [J.F.A.C.’s] son because [the victim]
is not an older man or an older woman. Because what comes with older
women or older men? What comes with that? Strings. He didn’t want to
have a relationship.

....
-24-
 This phone call tells you everything you need to know. You had
enough when you had the child statement alone, you had the testimony
from the child. You’ve had more than enough proof in this case, but this is
all you need to know. [The victim] was an [eleven]-year-old child. [The
victim] had something taken from him that he can never get back. The
[D]efendant is the reason that everyone had to come into this courtroom.

Defense counsel specifically objected to each of the previously referenced statements by
the prosecutor, but the trial court overruled these objections.

Our supreme court has consistently opined on prosecutorial misconduct regarding
closing arguments as follows:

The basic purpose of closing argument is to clarify the issues that
must be resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn.
2008). While “argument of counsel is a valuable privilege that should not
be unduly restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975),
“such . . . arguments must be temperate, based upon the evidence
introduced at trial, relevant to the issues being tried, and not otherwise
improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn.
Crim. App. 2003); Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.
1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999).
Because closing argument affords an opportunity to persuade the jury, 11
David L. Raybin, Tennessee Practice: Criminal Practice and Procedure §
29.2, at 97 (2008), leeway should be given regarding the style and
substance of the argument. Banks, 271 S.W.3d at 131; State v. Cauthern,
967 S.W.2d 726, 737 (Tenn. 1998). Hence, counsel may employ “forceful
language in their closing arguments, as long as they do not stray from the
evidence and the reasonable inferences to be drawn from the evidence.”
Banks, 271 S.W.3d at 131.

State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012).

The court has also advised that 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 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57
S.W.3d 411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument
does not automatically warrant reversal)). “An improper closing argument 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. (citing State v. Thacker, 164

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S.W.3d 208, 244 (Tenn. 2005) (appendix); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn.
1998)); see also State v. Reid, 164 S.W.3d 286, 321 (Tenn. 2005).

As explained by our supreme court in Sexton, there are five general areas of
potential prosecutorial misconduct related to closing argument:

(1) It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw. (2) It is
unprofessional conduct for the prosecutor to express his personal belief or
opinion as to the truth or falsity of any testimony or evidence or guilt of the
defendant. (3) The prosecutor should not use arguments calculated to
inflame the passions or prejudices of the jury. (4) The prosecutor should
refrain from argument which would divert the jury from its duty to decide
the case on the evidence, by injecting issues broader than the guilt or
innocence of the accused under the controlling law, or by making
predictions of the consequences of the jury’s verdict. (5) It is
unprofessional conduct for a prosecutor to intentionally refer to or argue
facts outside the record unless the facts are matters of common public
knowledge.

Sexton, 368 S.W.3d at 419 (citing Goltz, 111 S.W.3d at 6 (citations omitted)); see also
American Bar Association, Standards Relating to the Prosecution Function and the
Defense Function §§ 5 .8-5.9 (1970).

During closing arguments in this case, the State relied on facts entered into
evidence. During the recorded phone call with the Defendant, the victim’s father asked
the Defendant, “Why [Defendant] having older women and older men? . . . Why have
you done this to my son?” A transcript of this statement was entered into evidence
without objection from the Defendant; therefore, the prosecutor did not argue facts
outside the record. The prosecutor’s inference regarding why the Defendant sexually
assaulted the victim was not unreasonable. Furthermore, the trial court had instructed the
jury that “statements, arguments and remarks of counsel . . . are not evidence.”
Additionally, the Defendant has failed to show that the comment “the reason that
everyone had to come into this courtroom[]” shifted the burden of proof to the Defendant.
The victim identified the Defendant as the man who sexually assaulted him, and the State
had the burden of proving beyond a reasonable doubt that the Defendant was the
perpetrator. This statement did not change or shift that burden. The prosecutor’s
comments do not constitute misconduct; thus, the Defendant is not entitled to relief on
this issue.

IV. Jury Instruction

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 The Defendant argues that the trial court erred in instructing the jury on
aggravated sexual battery as a lesser-included offense of rape of a child under Tennessee
Code Annotated section 39-13-522. He argues that aggravated sexual battery is not a
lesser-included offense of rape of a child “because it contains two different elements.”
The Defendant also argues that aggravated sexual battery is not a statutory lesser-
included offense of rape of a child under Tennessee Code Annotated section 40-18-110
“because it was not specified as such at the time of the offense in this case, and part (b) of
the test outlined in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), did not survive the 2009
amendments to section 40-18-110.” The State responds that the trial court properly
instructed the jury on aggravated sexual battery as a lesser-included offense of rape of a
child. We agree with the State.

Our Supreme Court specifically addressed this issue in State v. Howard, 504
S.W.3d 260, 263 (Tenn. 2016) and held that “aggravated sexual battery is, in fact, a
lesser-included offense of rape of a child.” In State v. Burns, our Supreme Court “set
forth the test for determining whether a criminal offense constitutes a lesser-included
offense of a charged offense[.]” Id. at 263. This court explained that under the test
articulated in Burns, an offense is lesser-included if:

(a) all of its statutory elements are included within the statutory elements of
the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it
contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of
culpability; and/or
(2) a less serious harm or risk of harm to the same person,
property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise
meets the definition of lesser-included offense in part
(a) or (b); or
(2) an attempt to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part
(a) or (b); or
(3) solicitation to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part
(a) or (b).

See Burns, 6 S.W.3d at 466-67.

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 The 2009 amendments to Tennessee Code Annotated “codified Burns parts (a) and
(c) but excluded part (b).” Howard, 504 S.W.3d at 264. However, despite the exclusion,
the court held that “the statute did not abrogate part (b) of the Burns test.” Id. The court
explained that “[l]esser-included offenses are to be determined by referring to the express
provisions of [Tennessee Code Annotated section 40-18-110], and if not specifically
mentioned therein, by further applying the guidance of Burns part (b).” Id. at 263-64.
The Howard court analyzed the issue as follows:

“Rape of a child is 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” means “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.” Id. § 39-13-501(7). As applicable
to this case, a defendant commits the offense of aggravated sexual battery
when he or she engages in “unlawful sexual contact with a victim” and
“[t]he victim is less than thirteen (13) years of age.” Id. § 39-13-504(a)(4).
The statutory definition of “sexual contact” contemplates that the
“intentional touching can be reasonably construed as being for the purpose
of sexual arousal or gratification.” Id. § 39-13-501(6).

The primary difference between the two criminal offenses is that rape of a
child requires “unlawful sexual penetration,” while aggravated sexual
battery is accomplished by “unlawful sexual contact.” Because aggravated
sexual battery requires that the touching be reasonably construed as being
for the purpose of sexual arousal or gratification, which is not an element of
child rape, it cannot be considered a lesser-included offense in this case
under Burns part (a).

Pursuant to Burns part (b), however, unlawful sexual contact involves a less
serious risk of harm to the person, Burns, 6 S.W.3d at 466-67, and a
defendant’s “intent to touch a victim’s intimate parts for the purpose of
sexual arousal constitutes a mental state reflecting a lesser degree of
culpability than the reckless, knowing, or intentional commission of sexual
penetration for any reason,” State v. Greer, No. M1998-00789-CCA-R3-
CD, 2000 WL 284180, at *7 (Tenn. Crim. App. Mar. 17, 2000).
Accordingly, we hold that aggravated sexual battery is a lesser-included
offense under part (b) of the Burns test and that the trial court properly
instructed the jury as to this offense.
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Howard, 504 S.W.3d at 274-75.

Accordingly, aggravated sexual battery is a lesser-included offense of rape of a
child. Thus, the Defendant is not entitled to relief on this issue.

V. Length of Sentence

The Defendant contends that his sentence of eleven years’ confinement at one
hundred percent was excessive. Specifically, he argues that the trial court erred in
determining that he had a prior history of criminal behavior under Tennessee Code
Annotated section 40-35-114(1) and that the trial court failed to “recognize his positive
work and family history as a statutory mitigating factor under” Tennessee Code
Annotated section 40-35-113(13). The Defendant also argues that his sentence is
“greater than that deserved for the offense committed” and “is not the least severe
sentence necessary to achieve the purposes for which the sentence is imposed” in
violation of Tennessee Code Annotated sections 40-35-103(2) and (4). The State
responds that the Defendant’s sentence was proper because it was “within the applicable
range of punishment and the trial court’s reasons are supported by the proof and
consistent with the purposes and principles of sentencing.” We agree with the State.

The Sentencing Reform Act was enacted in order “to promote justice” by ensuring
that every defendant “be punished by the imposition of a sentence justly deserved in
relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to
implement the purposes of the Sentencing Reform Act, trial courts must consider several
sentencing principles. The sentence imposed for an offense “should be no greater than
that deserved for the offense committed” and “should be the least severe measure
necessary to achieve the pruposes for which the sentence is imposed.” Tenn. Code Ann.
§ 40-35-103(2), (4). Thus, before a trial court imposes a sentence upon a convicted
criminal defendant, it must consider: (a) the evidence adduced at the trial and the
sentencing hearing; (b) the presentence report; (c) the principles of sentencing and
arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal
conduct involved; (e) evidence and information offered by the parties on the
enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-
35-113 and 40-35-114; (f) any statistical information provided by the Administrative
Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any
statement the defendant wishes to make in the defendant’s own behalf about sentencing.
Tenn. Code Ann. § 40-35-210(b).

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
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standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). 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.” Bise, 380
S.W.3d at 709-10. Moreover, under such circumstances, appellate courts may not disturb
the sentence even if we had preferred a different result. See State v. Carter, 254 S.W.3d
335, 346 (Tenn. 2008). The burden of showing that a sentence is improper is upon the
appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also
State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

In determining the Defendant’s sentence, the trial court reasoned as follows:

The Court recalls this trial and looking back through my notes regarding the
testimony there and heard the testimony here today, [I am aware] of the
purposes for sentencing, sentencing considerations under 40-35-102 and
103, some of them have been – some of those statutory laws have been
mentioned here today.
....
In terms of enhancing factors, the court does find that some apply.
In terms of – there is no question in the court’s mind that the abuse – that
[the Defendant] abused a position of trust applies. I mean, the incident that
we are talking about occurred at the family’s and [the Defendant’s] church.
I don’t know what position he holds in terms of whether that’s some
elected, nominated position, but he does have a position in the church in
terms of driving the individuals[,] including children[,] on trips. But . . . the
enhancing factor doesn’t require that he be in some elected position. It just
requires that that position of trust there where this incident occurred has
him, [the Defendant’s] exercising authority in this trusted place. A place
where most people would think there is safety involved. He, [the
Defendant] only comes into – only has the ability to be around the victim
because of that trusted, safe place, that church, that relationship that exists
between [the Defendant] and the young child here, which . . . [led] him, [the
Defendant] to be instructing or ordering [the victim] around and doing
things for him on that particular occasion which [led] to them being at a
location where other[s] were not around. So that enhancing factor is
present and the [c]ourt places significant weight on it.

In terms of the criminal behavior, thankfully, we are not talking
about other acts of rape of a child or significant trauma perpetrated on this
young child but I think the [c]ourt can consider the fact that [the

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Defendant], according to this young child, has initiated contact, sexual
contact with him in the past.

In terms of the notice, I mean, [the Defendant] is aware of, and the
attorneys are well aware . . . that was an allegation. I mean, we addressed it
in terms of redactions from the medical records and the phone call
transcript, so yes he’s aware that this young child has made claims that this
– not as sever[e], but conduct like this has occurred in the past. And
obviously that can be brought up at a sentencing hearing, but not before the
jury, so I don’t think there is any due process violations in terms of notice.
I mean . . . [the Defendant] references the Kansas trip in the phone
call and makes accusations against a young child about touching him [on]
multiple occasion[s], some of which was on that particular Kansas trip.
And those accusations also were in and around the referenced vigil, this
special church outing that was occurring in the situation where the jury
heard. I mean, [the victim] makes references of [the Defendant’s] touching
him under the table many times and references Kansas prior that that as
well. So, like I said it’s not some situation where multiple prior acts of
child rape have occurred, it’s a situation where [the Defendant], for
whatever reason has made advances towards this young child and then it
[led], according to the jury, to the aggravated sexual battery that they heard
about.

So [the Defendant] here, . . . could have been questioned more than
he was[] about the prior accusations that [the vicitm] is making, and there
has been nothing to contradict it submitted proof wise. And like I said, [the
Defendant] mentions that situation [during] the phone conversations with
the young child’s father. So those enhancing factors apply.

In terms of mitigating – and the State was arguing that [the
Defendant] did not accept responsibility. I have [mentioned], there is no
enhancing factor that the Court [is] aware of that . . . I can consider or
enhance a sentence because a defendant did not accept repsonsibility . . . .
But that’s not applicable here because [the Defendant] is not arguing that
that’s a mitigating factor because he [has] not acknowledged anything in
terms of [a] statement he’s made in the presentence report. There were
some statements made as I mentioned in a phone call in terms of taking
repsonsibility but it didn’t arise to penetration, didn’t go that far,
understands that, but that’s not [an] enhancing factor nor do I find it’s a
mitigating factor under the catchall provisions and further I don’t find that
any other mitigating factors apply.
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 So based on that and the statutes the Court’s mentioned previously,
the [c]ourt will impose an [eleven-]year sentence at [one hundred] percent
to serve with the statutory requriements upon his release.

In this case, we hold that the trial court did not abuse its discretion in applying
enhancement factor number one, “the defendant has a previous history of . . . criminal
behavior.” Tenn Code Ann. § 40-35-114(1). The victim testified at the sentencing
hearing that he attended church trips with the Defendant and that on one of these trips,
the Defendant touched him in such a way that made him uncomfortable. The trial court
also referenced several such accusations by the vicitm in the recorded phone call and his
medical records. At the hearing, the Defendant put on no proof that these allegations
were false. Additionally, the Defendant does not question the trial court’s application of
enhancement factor number fourteen, “the defendant abused a position of public or
private trust.” Tenn Code Ann. § 40-35-114(14). The trial court, as was its perogative,
declined to take into account any of the Defendant’s mitigating evidence such as his work
history and “family history.” The Defendant has failed to show that the sentence was
improper, and he is not entitled to relief on this issue.

VI. Cumulative Error

Finally, the Defendant argues that cumulative errors committed during his trial
entitle him to a new trial on all charges.2 Under the cumulative error doctrine, our
supreme court has stated,

[T]here may be multiple errors committed in trial proceedings, each of
which in isolation constitutes mere harmless error, but which when
aggregated, have a cumulative effect on the proceedings so great as to
require reversal in order to preserve a defendant’s right to a fair trial.

State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). Therefore, necessarily, “[t]o warrant
assessment under the cumulative error doctrine, there must have been more than one
actual error committed in the proceedings.” Id.

Here, there was not “more than one actual error committed in the proceedings.”
See Hester, 324 S.W.3d at 76. Accordingly, we hold that the Defendant is not entitled to
relief on the basis of cumulative error.

2
We note that the Defendant does not raise cumulative error as a separate, sixth issue. Rather, he
includes this as part of his argument regarding prosecutorial misconduct.

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 CONCLUSION

Based upon consideration of the foregoing and the record as a whole, we affirm
the judgment of the trial court.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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