State of Tennessee v. Jerry Wade Sherrill

11/08/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 15, 2018 Session

STATE OF TENNESSEE v. JERRY WADE SHERRILL

Appeal from the Circuit Court for Wayne County
No. 15691 Robert Jones, Judge

No. M2017-00643-CCA-R3-CD

The Defendant, Jerry Wade Sherrill, was convicted by a Wayne County Circuit Court
jury of two counts of rape, Class B felonies, and two counts of incest, Class C felonies.
See T.C.A. §§39-13-503 (2014) (rape), 39-15-302 (2014) (incest). The trial court
sentenced the Defendant to five years for the incest convictions and to eight years for the
rape convictions, with all sentences to be served concurrently. On appeal, the Defendant
contends that (1) the evidence is insufficient to support his convictions, (2) the trial court
erred in denying his claim pursuant to Brady v. Maryland based upon the State’s failure
to disclose alleged incentives offered to the codefendant, (3) the trial court erred in
denying his motion to dismiss pursuant to State v. Ferguson based upon lost evidence, (4)
the trial court erred in denying his motion to dismiss based upon alleged prosecutorial
misconduct, and (5) he is entitled to a new trial due to cumulative errors in the conviction
proceedings. The State raises an additional allegation of error based upon the trial court’s
reduction of the Defendant’s rape sentences from ten to eight years. We affirm the incest
judgments and the rape convictions, but we remand for entry of amended judgments for
the rape convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part; Amended in Part; Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Lee E. Brooks, Columbia, Tennessee, for the appellant, Jerry Wade Sherrill.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Brent A. Cooper, District Attorney General; Beverly White, Assistant
District Attorney General, for the appellee, State of Tennessee.
 OPINION

The Defendant’s convictions relate to two occasions on which his wife, Jennifer
Sherrill, and their eighteen-year-old intellectually disabled son had sexual intercourse.
The Defendant was convicted on a theory of criminal responsibility.

At the Defendant’s trial, Mrs. Sherrill testified that she had pleaded guilty but had
not yet been sentenced for her participation in the offenses. She said she had not received
any sentencing offers from the State which depended upon her testimony against the
Defendant. She said she and the Defendant had been married for twenty-one years. She
said that she attempted to obtain a divorce but that the Defendant refused to consent to
the divorce. She said her attorney “put it on hold because I got incarcerated.” She said
they had two sons, the victim, who was born April 19, 1996, and the victim’s brother,
who was born June 16, 1998. Mrs. Sherrill testified that she graduated from high school
with a special education diploma. She said that her marriage to the Defendant had been
happy initially but that the Defendant became jealous after the victim’s birth because the
Defendant “wasn’t the main attraction.” She said the relationship continued to
deteriorate after the Defendant’s mother became ill. She said the Defendant became
verbally abusive, calling her a “bitch” and saying she was “nasty.” She said the
Defendant poured water on her and falsely accused her of sending inappropriate
photographs to people. She said he had been “very mean” during the time they lived in a
rental house.

Mrs. Sherrill testified that, on June 3, 2014, she had sexual intercourse with the
victim. She said the Defendant and the victim had been watching a “dirty movie” in the
living room. She said the Defendant had wanted the victim to watch the movie with the
Defendant. She said she did not agree with this but had “tried to keep the ‘mosity’ down”
because she was concerned the Defendant would “do something to” her. She said that the
Defendant and the victim came into the bedroom, where she was, and that the Defendant
said they were “going to make [the victim] turn into being a man.” She said that she
begged the Defendant not to do this and that the Defendant told her she was going to do it
because she was the Defendant’s wife. She said that she walked away but that the
Defendant threatened to hit and kill her.

Mrs. Sherrill testified that she complied with the Defendant’s demands. She said
the victim undressed and lay on the bed and that the Defendant told her to get on top of
the victim. She said the victim was aroused. She said she undressed and complied. She
said the Defendant stood beside the bed. She said the Defendant instructed her that she
“better make [the victim] feel good” and that the victim “better enjoy it.” She said the
Defendant whispered in her ear, asking if she enjoyed the sex and making comments
about the victim being a larger size than the Defendant. She said the victim’s penis was
in her vagina and that she “was doing the movements.” She said the Defendant instructed

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the victim to fondle her breast “because that’s what a woman likes.” She said she went to
the bathroom when she saw that the victim was about to ejaculate. She said she dressed,
went outside, and cried because she was ashamed. She said that after “things had kind of
calmed down,” the Defendant and the victim went into the living room, and she cooked
dinner.

Mrs. Sherrill testified that she had been confused and “didn’t really enjoy” the
June 3 encounter. She acknowledged that she told Investigator Tommy Goetz that she
enjoyed part of it.

Mrs. Sherrill testified that, two days later, on June 5, 2014, she was preparing to
take a bath when the Defendant entered the bathroom and wanted her to have sex with the
victim again. She said that she refused. She said that as she sat on the side of the bathtub
after her bath, the Defendant pushed her into the tub. She said that she hit her head as a
result of being pushed and that the Defendant smiled and said, “[Y]ou’re going to do it
again.” She said the Defendant stated he wanted to show the victim that “he is going to
be a man,” that the victim “can be a man,” and that “this is the way that it is supposed to
be for a man.” She said that she, the Defendant, and the victim went into the bedroom
and that she and the victim had intercourse with the victim on top of her. She said that
the Defendant instructed the victim regarding “how to move and to make it feel good for
a woman.” She said the Defendant was on the bed with her and the victim during the
sexual encounter. She said she looked at the wall because it was degrading. She said the
victim ejaculated on her leg. She said that while she and the victim had sex, the
Defendant was beside them filming their activities with a cell phone. She said that the
Defendant told her he wanted to keep the recording and that “[h]e said he wanted to keep
it so he could remember what a special time this was because he said that he liked to
watch stuff like that.”

Mrs. Sherrill said that after the victim left the room, the Defendant said it was “his
turn,” and that the Defendant asked if she had enjoyed the encounter. She said that she
told the Defendant, “no, not really” but that she had done what he told her to do. She said
she and the Defendant had sex, which she did not enjoy.

Mrs. Sherrill testified that the victim had “special needs,” which she had known
since the victim was in kindergarten. She said the victim “was mentally retarded”1 and
had “ADHD” and dyslexia. She said that she and the Defendant had lived together from
the time of their marriage until she left the marital home about a week after this incident.
She said the victim had graduated from high school and that he was “supposed to” have a

1
Hereafter, we will refer to this diagnosis as intellectually disabled. See Van Tran v. State, 66 S.W.3d 790, 795
(Tenn. 2001) (noting “the nationally recognized fact that every person who is mentally retarded has significant and
serious impairments to intelligence and everyday functioning”).
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diploma. She said she attended “IEP” meetings at the victim’s school.2 She said the
purpose of the meetings was to advise her about how the victim was progressing in
school and about “reading scores and . . . stuff like that.” She said that the Defendant
took her to the victim’s school for the IEP meetings but that he did not go inside to attend
them. She said that the victim began receiving a Social Security Disability check soon
after the victim started school and that the Defendant knew the victim received a
disability check.

Mrs. Sherrill testified that she had sex with the victim because she thought the
Defendant would kill her if she did not. She said the Defendant stated he would kill her
if she did not comply. She said the Defendant told her, “[T]hat’s what a woman is
supposed to do. She is supposed to obey her husband.” She said she had not been able to
stand up to the Defendant on June 3, 2014, because she was scared of him. She said the
Defendant had beaten her son, although she did not specify whether she was referring to
the victim or the victim’s brother.

Mrs. Sherrill testified that she was interviewed once by Investigator Goetz3 and
that she learned from her attorney the interview had not been recorded. She later said she
talked to Investigator Goetz twice, both times before her arrest. She said she went to talk
to him because she “wanted all this to end.” She said that she had testified consistently
with what she told Investigator Goetz. She acknowledged that she made a comment in
the interview about her surprise at the size of the victim’s penis but denied she had said
she became sexually aroused by the sight of the victim’s penis. She recalled telling
Investigator Goetz, “I might could [sic] have prevented it,” but she said she was scared of
the Defendant, whom she said had done things she was “not allowed to talk about now.”
She acknowledged that she had told the investigators that she had sex willingly with the
victim and that she had enjoyed it, but she stated she said this because she had been “very
nervous.” She said she had gone to Investigator Goetz of her own volition because she
wanted to end the abuse and wanted the Defendant to leave her children and her alone.
When asked about a statement to Investigator Goetz that the first sexual encounter had
been an “experiment,” she said, “Yes, because we had agreed on it, that it was just going
to be one time. Because he kept wanting me to do things that was [sic] not appropriate,
and I’m not going to say what they are, sir.” She said the Defendant had urged her “to do
stuff like that before” and that she had refused repeatedly. She said the Defendant urged
her to do it once and that she thought she would only have to do it once. She said, as
well, that the Defendant had stated previously that he wanted her “to be turned into a
whore” because he “wanted to make money off” her.

2
Other evidence showed that IEP was an acronym for Individualized Education Program.
3
Other evidence showed that Lawrence County Investigator Laws was present, as well.
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 Mrs. Sherrill testified that when she decided to leave the Defendant shortly after
the incidents, she told the Wayne County authorities “who came and got” her that the
Defendant had been abusive, had hit the left side of her face, and had pointed a gun at
her. She said she had not mentioned the gun on direct examination because she and the
prosecutor had decided they were not going to talk about it. She said she left the
Defendant on the particular evening because he had said he was going to kill her and the
children that night. She said she was taken to a hospital for x-rays.

Mrs. Sherrill described the Defendant’s gun as a silver and black “JUDGE”
handgun, which she said the Defendant had purchased at “Lawson’s.” She agreed that
the report regarding the handgun was in 2014, when she left the Defendant, and she said
that Investigator Goetz had not been there when this report was made. She said she told
the officers who assisted her when she left the Defendant that the Defendant had been
beating her, forcing her to have sex with her son, and “doing other things” to her and the
children. She said that she told Investigator Goetz in 2015 about the gun and that she told
him in 2015 that she had previously reported these matters to law enforcement.

Mrs. Sherrill testified that the Defendant had a gun during the second incident,
which had occurred on June 5, 2014. She said he had not had a gun during the first
incident, which had occurred on June 3, 2014, “because it was an experiment.” She said
that on June 5, the Defendant brought out the gun and said, “[I]f you don’t do this for me,
. . . I’m going to shoot you in the head and let the kids watch you bleed.”

Mrs. Sherrill testified that she told Investigator Goetz that the Defendant had a cell
phone when she had sex with the victim but that she had not known whether the
Defendant had recorded the events. She said the Defendant had tried to hide the cell
phone. She agreed that when Investigator Goetz asked if she would have noticed if the
Defendant had been recording, she had responded, “[Y]es, I would have noticed it.”

Mrs. Sherrill testified that she had been happy when she was interviewed by
Investigators Goetz and Laws because she had been away from the Defendant for almost
a year. She said she and the children were able, at that time, to do things such as have
friends and attend events that the Defendant had not allowed her to attend. She said that
because she was happy at the time of the interview, she had not mentioned that she had
been afraid of the Defendant. She then said she had been nervous and afraid to mention
the Defendant’s threats to kill her in the interview because she and her children were
trying to move on, and the Defendant would not let them. She said she had not
mentioned the gun because she “thought it was already in the records.”

Mrs. Sherrill denied that she had a boyfriend after she left the Defendant and
moved with the children to Lawrence County. She said the person had been a friend.
She denied having sex with her friend. After she was asked if she had told police

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investigators that she had sex with her friend, she said she had sex with him, but she
stated her children had not been present.

Mrs. Sherrill testified that the Defendant said things to her several times when they
were in bed about his desire for her to have sex with the victim. She said the Defendant
said he thought it would be “cool.” She said the Defendant’s insistence reached the point
at which he told her he was going to kill them and burn the house if she did not comply.

Mrs. Sherrill acknowledged that at a prior court appearance, she apologized to the
Defendant because she had been “mean.” She said she had to “fight for” her children and
do what was right for them. She said she told the Defendant that they should be cordial
for their children’s benefit. She said that she and the Defendant could be friends but that
she wanted a divorce.

A portion of Mrs. Sherrill’s recorded statement was played for the jury. The trial
court instructed the jury that out-of-court statements were not to be considered as
substantive evidence but could be considered in determining the truthfulness of in-court
statements. The court advised the jury, “[T]he first part of [the statement] is missing and
no one can explain what happened to it, some sort of computer defect, and this is all
we’ve got. It’s all either side has.”

It is apparent that the recording begins mid-interview. In the recording, Mrs.
Sherrill said that she, the Defendant, and an unidentified woman had a three-way sexual
encounter until one of her sons entered the room. She said the unidentified woman told
her that the woman was going to “get” Mrs. Sherrill’s children. Mrs. Sherrill thought the
Defendant and the woman were seeing each other “behind [her] back.” She said that she,
the Defendant, and the children watched pornography together once but that she “put a
stop to it.”

In the recorded statement, Mrs. Sherrill said that she had sex with the victim on
two occasions and denied any additional encounters with him. She said she told the
Defendant she did not want to have intercourse with the victim and agreed she refused
when the Defendant wanted her to perform oral sex on the victim. She said the
Defendant hit her when she refused to perform oral sex. She said she cried and begged
the Defendant because she did not want to have intercourse with the victim. She said she
agreed to do it. She said she had pretended to enjoy the sexual activity with the victim
because the Defendant told her she “was going to enjoy it.” She said the Defendant told
her he would kill her if she did not do it.

In the recorded statement, Mrs. Sherrill said that she did not enjoy the first
encounter but that she participated in the second one because the Defendant pushed her
and that she thought he would have hit her if she had refused. She thought the Defendant

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would have held her and the children against their wishes if she had not agreed. She later
said she enjoyed the first encounter because she had thought about someone else during
it. She said she was ashamed of what she had done.

Mrs. Sherrill said in the recorded statement that the Defendant had, at an
unspecified time, taken the victim’s brother into the bathroom to show him how to
pleasure himself manually.

Mrs. Sherrill acknowledged in the recorded statement that she had a sexual
encounter with a male friend, but she said the victim and the victim’s brother did not
watch her have sex with the man.

Mrs. Sherrill’s arrest was documented in the recording. She was charged with two
counts of incest, two counts of rape, and two counts of aggravated rape by an authority
figure.

After the recording was played, Mrs. Sherrill testified that her memory was better
on the day of the Defendant’s trial than it had been at the time of the recording because
she was “away from his crap.” She said that she had “memory lapses” and that she was
scared when she gave the statement. She said the Defendant had told her that if she went
to law enforcement, “he was going to come and get” her. She said that at the time of the
statement, the Defendant had “started coming around wanting to see the kids,” even
though he was not supposed to come to her home. She said the Defendant had threatened
to take the victim’s brother from her. She acknowledged that her trial testimony was not
entirely consistent with the recorded statement but said she remembered what had
happened “like it was yesterday.” She said her trial testimony was truthful. She said that
she knew having sex with the victim was wrong but that she had done it because she
thought her life and that of her children were in danger. She said that she would not have
had sex with her child absent the Defendant’s insistence.

Thomas Harrison, a Wayne County school psychologist, testified that he worked
with the special education department. He said he had known the victim since the victim
was in kindergarten. He said that he gave the victim a WISC-IV IQ test in 2011, when
the victim was in ninth grade, which showed that the victim had a full-scale intelligence
score of 48. Mr. Harrison said that a score of 70 or less was an indicator of potential
intellectual disability. He said that after he obtained this test result, he conducted an
adaptive behavior interview with Mrs. Sherrill and that the scores were consistent with
the test administered to the victim. Mr. Harrison did not recall having ever met the
Defendant. Mr. Harrison said that, at various times, the victim completed other
intelligence tests. He agreed that the victim scored 66 on the KABC test and that the
victim scored 58 and 46 on two administrations of the VMI test. Mr. Harrison said the
victim had an attention deficit hyperactivity disorder (ADHD) diagnosis from an

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unidentified source outside the school system. Mr. Harrison testified that the victim
“definitely” had an intellectual disability, which Mr. Harrison characterized as “within
the mild/moderate range.” Mr. Harrison said the victim functioned cognitively and
adaptively as an elementary school student, rather than a high school student.

Mr. Harrison said that, in his opinion, the victim had the ability to understand right
and wrong. He said, however, that people with intellectual disabilities were “susceptible
to authority figures” and tended to want to please people in authority. He said people
with intellectual disabilities might be able to identify whether an action was right or
wrong but might have difficulty explaining why it was right or wrong. Mr. Harrison
thought that if someone in authority told the victim to do something, the victim might do
it, even if the victim did not think the action was right. In Mr. Harrison’s opinion, the
victim “has a very strong sense of wanting others to see him in a good light.” Mr.
Harrison said that the victim was “very much a pleaser” and that the victim would echo
things to a person that he thought the person wanted to hear.

Twenty-Second Judicial District Attorney General’s Investigator Tommy Goetz
testified that he became involved with the Defendant’s case after the district attorney
general’s office received a call from Erica Prince, a Department of Children’s Services
employee, regarding a report that Mrs. Sherrill had sexual intercourse with the victim.
He said he understood, as well, that the Defendant had alleged that Mrs. Sherrill had sex
with her boyfriend in front of the victim and the victim’s brother. Investigator Goetz said
that as a result of the call, he went to Kid’s Place, a children’s advocacy center. He said
Kid’s Place conducted forensic interviews of children and intellectually disabled
individuals who were alleged victims of abuse. Investigator Goetz said that, at Kid’s
Place, he observed the forensic interview of the victim.

Investigator Goetz testified that after he observed the victim’s forensic interview,
he conducted a video-recorded interview of Mrs. Sherrill at the Lawrenceburg Police
Department. He said, however, “[T]here was a glitch in the system and the first half of
the video was just lost. It has to be a problem with the software.” He said he had not
realized the issue existed until the district attorney’s office brought it to his attention. He
said he attempted to have information technology personnel retrieve the entire video but
that the first half could not be recovered.

Investigator Goetz said that on July 8, 2015, the morning after Mrs. Sherrill’s
interview, the Defendant appeared voluntarily for an interview. Investigator Goetz said
Ms. Prince had called the Defendant and asked him to come to the sheriff’s department
for an interview. Investigator Goetz said the Defendant waived his Miranda rights and
agreed to speak with him. Investigator Goetz said he advised the Defendant that
depending on the course of the investigation, Investigator Goetz might want to “seize”
the Defendant’s cell phone. Investigator Goetz said the Defendant claimed he had lost

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his cell phone in the time since he had been called at 10:30 the previous evening about
coming for an interview. Investigator Goetz said the Defendant consented for the police
“to go ping over his phone and search for the cell phone.” Investigator Goetz said that
when he advised the Defendant of the complaint that had been lodged, the Defendant
said, “[T]hat’s the first I’ve heard of that, I want a lawyer.” Investigator Goetz said he
did not question the Defendant after the Defendant requested an attorney.

Investigator Goetz testified that he, Deputy Jeff Dunn, and one or two other
Lawrence County Sheriff’s deputies searched the Defendant’s home and the area outside
the home after the Defendant signed a consent form. Investigator Goetz said they found a
cell phone charger in the living room but did not find a cell phone in the house. He said
they searched a field, the driveway, and a truck for the cell phone. He said, “[I]t was a
track phone so we could not ping it.”

Investigator Goetz testified that Mrs. Sherrill stated she had reported having sex
with her children to “her legal aid and her counselor.” He did not recall, however, her
saying she had reported it to law enforcement before he interviewed her. He said that if
sexual abuse had been reported to a law enforcement agency, the agency would have
been required to investigate it. He said the dates of the incidents were identified by
referring to the date Mrs. Sherrill had left the marital home, which occurred a few days
after the incidents.

Investigator Goetz testified that he thought he interviewed the Defendant at the
Lawrenceburg Police Department, although he said the interview might have occurred at
the Lawrence County Sheriff’s Department. He said that if the interview had occurred at
the Lawrenceburg Police Department, a video recording would have been made using
their equipment and that if the interview had occurred at the sheriff’s department, he
would have used his digital audio recorder to record the interview. He said, “I can’t
fathom that I would interview him and it not be recorded.” He agreed there should be a
recording of the interview.

The victim testified that he was twenty years old. He said he was enrolled at
Waynesboro High School. He said he attended school in Lawrenceburg previously, that
he graduated, and that “they let [him] go back to school and learn about a lot of stuff.”
He said he would graduate in Waynesboro, although he did not know when.

The victim testified that he had lived in Collinwood with his father, his mother, his
brother, and his dog when “[b]ad things happened.” He said his father was upset and
mad at him and his mother, that his father threw things at him and his mother, and that his
father was mad at his mother for going out with her friends.

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 The victim said that his father told him and his mother “to do something really
bad.” He said his father told him to take off his shirt. He said he sat between his parents
on the bed. He said he kissed his mother goodnight. He said that his mother was going
to sleep and that he and his father went to the kitchen because they were hungry. He
agreed that this was not the same version of events he had reported in a video recording
made at Kid’s Place Child Advocacy Center. He said he had been truthful in his
testimony and at the Child Advocacy Center and that these events had occurred on
different days. When asked about what he had said at the Child Advocacy Center, he
said he had been watching a movie in bed with his mother and that they fell asleep.

The victim agreed he had sex with his mother and said it occurred two times. He
said the first incident occurred in his parents’ bedroom. He said he went in the room to
say goodnight to his mother. He said his mother was fully clothed and in bed. He said
that his parents started arguing and that he told his father to stop. The victim said he was
embarrassed and that he took off his clothes at his mother’s instruction. He said his
father was “[j]ust standing there.” He said he got into the bed. He said his mother
disrobed and got into bed with him. He said he and his mother had sex and that he did
not like it. He said the sexual activity embarrassed his mother. He said his mother was
on top. When asked which of their body parts touched, he replied, “Everything.” He said
his “thing” went inside his mother’s female part. He said his mother moved up and
down. He said the activity lasted about six minutes. He said his father was in the bed
with them and that his father was asleep. He then said his father was in the bathroom
while he and his mother had sex and that his father stated he did not like it. He said his
father was mad and said “bad things” to his mother, accusing her of being “a horrible
person” and “going out with different guys.” The victim thought the sexual activity had
been his mother’s idea, but he then said he did not know. He said they stopped having
sex, dressed, and went to bed. The victim said his mother was upset and cried during the
sexual activity and that his father did nothing to stop the activity. He said that when his
father was in the bathroom “fussing at” his mother, his father was using a cell phone to
send text messages.

The victim testified relative to the second incident that he went into his parents’
bedroom to tell his mother goodnight. He said that both parents were in the room and
that his father wanted him to have sex with his mother. He initially said he did not recall
why he took off his clothes but said he had not wanted to undress. He later agreed that
his father told him to remove his clothes. He said his mother undressed. He said he and
his mother were embarrassed. When asked why they engaged in the activity despite their
embarrassment, he said, “I have no clue.” He said they had sexual intercourse on the bed
with his mother on top. He said that his male part went inside her female part but that
there was no movement. He said his mother was upset and crying. He said the incident
lasted about five hours. He said his father “came back,” but he did not state where his
father had been. He later testified that his father had not been in the room during the

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second encounter but that he could hear his father in the bathroom. He thought his father
got into the bed with him and his mother, and he said his father told him goodnight.

The victim acknowledged that he told a female “Buffalo River Valley” employee
that his father “didn’t have anything to do with this.”

The Defendant did not offer proof. The jury found the Defendant guilty of two
counts of incest and two counts of rape. Each of the jury’s findings of guilt was based
upon a theory of criminal responsibility.

I

Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his convictions
because (1) the victim’s testimony failed to show that the Defendant was in the room
when the offenses occurred and (2) the State failed to show that the Defendant was aware
of the degree of the victim’s intellectual disability. The State responds that the evidence
is sufficient to support the convictions. We agree with the State.

In determining the sufficiency of the evidence, the standard of review 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); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’“ State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

A. Rape

As relevant to this case, “Rape is unlawful sexual penetration of a victim by the
defendant or of the defendant by a victim [where] . . . [t]he defendant knows or has

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reason to know that the victim is mentally defective, mentally incapacitated or physically
helpless[.]” Id. § 39-13-502(a)(3). “‘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) (2014). “‘Mentally defective’ means that a person suffers from a mental
disease or defect which renders that person temporarily or permanently incapable of
appraising the nature of the person’s conduct[.]” Id. § 39-13-501(3).

“Criminal responsibility, while not a separate crime, is an alternative theory under
which the State may establish guilt based upon the conduct of another.” State v.
Dorantes, 331 S.W.3d 370, 386 (Tenn. 2011) (quoting State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999)).

A person is criminally responsible for an offense committed by the conduct
of another, if:

...

(2) Acting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits,
directs, aids, or attempts to aid another person to commit the offense[.]

T.C.A. § 39-11-402 (2014). For a defendant to be convicted of a crime under the theory
of criminal responsibility, the “evidence must establish that the defendant in some way
knowingly and voluntarily shared in the criminal intent of the crime and promoted its
commission.” Dorantes, 331 S.W.3d at 386; see State v. Maxey, 898 S.W.2d 756, 757
(Tenn. Crim. App. 1994).

The Defendant’s argument focuses on the victim’s testimony, which the
Defendant argues failed to show that the Defendant was in the room when the offenses
occurred, and on the sufficiency of the State’s proof that the Defendant was aware of the
degree of the victim’s intellectual disability. Our review encompasses all of the
evidence, which included Mrs. Sherrill’s testimony about the offenses in addition to that
of the victim. Viewed in the light most favorable to the State, the evidence shows that
the Defendant demanded that Mrs. Sherrill have sex with the victim on or about June 3,
2014. Mrs. Sherrill testified that when she tried to walk away, the Defendant threatened
to hit and kill her. She said the Defendant stood beside the bed and told her that she
“better make [the victim] feel good” and that the victim had “better enjoy it.” She said
the Defendant asked if she enjoyed the sex and made comments about the victim’s size.
She said the Defendant instructed the victim how to touch her “because that’s what a
woman likes.” She said the victim’s penis penetrated her vagina.

-12-
 The victim testified relative to the first incident that he went into his parents’
bedroom and that his parents argued. He said he took off his clothes at his mother’s
instruction, that his father was “[j]ust standing there,” that his mother disrobed, and that
they had sex with his mother on top. He said his “thing” went inside his mother’s female
part. Although he stated that his father was “standing there” when this occurred, he later
said his father was in the bathroom “fussing at” his mother and sending text messages.
He said that his mother was upset and cried during the sexual activity.

Relative to the second incident on or about June 5, 2014, Mrs. Sherrill testified
that she initially refused the Defendant’s demand that she have sex with the victim, that
the Defendant pushed her into the bathtub, causing her to hit her head, that the Defendant
told her she was “going to do it again,” and that she complied. She said she went into the
bedroom and had sex with the victim on top. She said the Defendant filmed the incident
with a cell phone. Mrs. Sherrill said the Defendant had wanted her to have sex with the
victim in order to instruct him in how to be a man and please a woman.

The victim testified relative to the second incident that the Defendant wanted him
to have sex with his mother. He said that his father told him to undress and that he did so
against his wishes. He said that he and his mother were embarrassed and that they had
sexual intercourse on the bed with his mother on top. He said his male part went inside
her female part. He said that the Defendant “came back” into the room and that he could
hear the Defendant in the bathroom during the sexual encounter. He said his mother was
upset and crying during the encounter.

Pertinent to the incidents generally, Mrs. Sherrill testified that she would not have
had sex with her child absent the Defendant’s insistence. She said, as well, that the
victim was intellectually disabled and had ADHD, that he had an IEP plan at school, that
the Defendant knew the victim received a Social Security Disability check, and that the
Defendant took her to the victim’s school for the IEP meetings.

Mr. Harrison testified that the victim had tested as intellectually disabled on
several occasions. Mr. Harrison said the victim functioned cognitively and adaptively on
the level of an elementary school student. Mr. Harrison said that individuals with
intellectual disabilities such as the victim’s were susceptible to authority figures and
wanted to please authority figures.

Because the victim testified, the jury had the opportunity to evaluate, from a
layperson’s perspective, the extent to which his intellectual disability would have been
apparent to the Defendant. The victim and the Defendant lived in the same household
until shortly after the offenses. The Defendant was the victim’s father, and the victim,
who was eighteen at the time of the offenses, had received Social Security disability

-13-
payments since around the time he started school. The Defendant took Mrs. Sherrill to
the victim’s school for IEP meetings related to the victim’s intellectual disability and
school progress.

The State acknowledges that the victim’s testimony was not clear in some
respects, which it attributes to his intellectual disability. Mrs. Sherrill’s testimony,
however, was more precise, and the victim’s testimony provides sufficient corroboration
of her account of the offenses. See, e.g., State v. Fowler, 373 S.W.2d 460, 463 (Tenn.
1963) (“[T]here must be some fact testified to entirely independent of an accomplice’s
testimony, which, taken by itself, leads to the inference, not only that a crime has been
committed, but that the defendant is implicated in it, and the corroboration must consist
of some fact that affects the identity of the party accused.”). The victim’s testimony
provided corroboration of Mrs. Sherrill’s account of the Defendant’s promotion,
encouragement, and coercion of the offenses and of the Defendant’s identity.

We conclude that the evidence is sufficient to support the Defendant’s rape
convictions. The proof shows that Mrs. Sherrill and the victim engaged in sexual
penetration, that the victim was mentally incapacitated by his intellectual disability to an
extent that he was incapable of consenting, that the victim’s cognitive and adaptive
deficits were significant and apparent, that the Defendant lived in the same home, and
that the victim was susceptible to influence from authority figures. The proof also shows
that the Defendant promoted the commission of the offenses by directing and
intimidating Mrs. Sherrill into engaging in sexual activity with the victim. Thus, the
evidence supports the jury’s conclusions that the Defendant is criminally responsible for
the rapes of the victim.

B. Incest

As pertinent to this appeal, “A person commits incest who engages in sexual
penetration as defined in § 39-13-501, with a person, knowing the person to be, without
regard to legitimacy: . . . The person’s natural parent, child, grandparent, grandchild,
uncle, aunt, nephew, niece, stepparent, stepchild, adoptive parent, adoptive child[.]”
T.C.A. § 39-15-302(a)(1).

Viewed in the light most favorable to the State, the evidence shows that Mrs.
Sherrill engaged in two acts of sexual intercourse with the victim, who was her natural
child. The evidence likewise shows that she did so at the insistence of the Defendant,
who threatened her and, on the second occasion, assaulted her. The evidence is sufficient
to support the Defendant’s convictions of incest under a criminal responsibility theory.

Because the evidence is sufficient to support the convictions, the Defendant is not
entitled to relief on this basis.

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 II

Brady Issues

The Defendant contends that the trial court erred in denying his claim pursuant to
Brady v. Maryland based upon the State’s failure to disclose (1) an alleged incentive of a
30% release eligibility, rather than 100%, offered to Mrs. Sherrill as part of the plea
agreement, in exchange for her testifying against him and (2) her charge and subsequent
plea agreement in a neighboring county to an offense involving sexual conduct with the
victim’s brother. The Defendant also contends that the court erred in concluding that a
Brady violation occurred but nevertheless denying relief on the basis of “harmless error.”
The State contends that the court did not err in denying relief. We agree with the State.

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).
As a result, the State has a constitutional duty to furnish a defendant with exculpatory
evidence pertaining to his guilt or lack thereof or to the potential punishment faced by a
defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963).

In order to show a due process violation pursuant to Brady, the defendant must
prove by a preponderance of the evidence that (1) he requested the information, unless it
is obviously exculpatory, (2) the State must have suppressed the information, (3) the
information must be favorable to the accused, and (4) the information must be material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Favorable evidence includes that
which “challenges the credibility of a key prosecution witness.” Johnson, 38 S.W.3d at
56-57 (internal quotation marks and citation omitted). Evidence is material when “‘there
is a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.’” Id. at 58 (quoting Edgin, 902 S.W.2d at
390).

Evidence that provides value for impeachment of a state’s witness is within the
purview of Brady. State v. Jackson, 444 S.W.3d 554 (Tenn. 2014); see United States v.
Bagley, 473 U.S. 667, 767 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972).

The critical inquiry remains, though, whether the evidence was material. In this
regard, the inquiry is whether a reasonable probability exists that “had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Kyles
v. Whitley, 514 U.S. 419, 435 (1995); see Edgin, 902 S.W.2d at 391 (op. on pet. for
reh’g).

-15-
 In Kyles, the Supreme Court observed:

[The] touchstone of materiality is a “reasonable probability” of a different
result, and the adjective is important. The question is not whether the
defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence. A “reasonable
probability” of a different result is accordingly shown when the
government’s evidentiary suppression “undermines confidence in the
outcome of the trial.”

Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678); see Jackson, 444 S.W.3d at
595.

The Defendant was charged in Wayne County with the offenses related to the
victim that are the subject of this appeal. Mrs. Sherrill was similarly charged in Wayne
County with offenses involving the victim, and she reached a plea agreement with the
State relative to disposition of these charges and which contemplated her truthful
testimony at the Defendant’s trial. Mrs. Sherrill was also charged with Lawrence County
offenses related to the victim’s brother. The Defendant was not charged with any
Lawrence County offenses related to the victim’s brother. The Defendant claims he was
unaware of a plea agreement the State and Mrs. Sherrill entered into relative to the
Lawrence County offenses.

Evidence regarding the charges and the existence and terms of the plea agreements
was received at the hearing on the motion for a new trial. Investigator Goetz testified that
he was told initially that DCS had received a referral regarding an allegation that Mrs.
Sherrill was having sex in front of the victim and the victim’s brother but that DCS
employee Erica Prince called Mrs. Sherrill, who said she had engaged in sexual activity
with the victim and the victim’s brother. He said both the victim and the victim’s brother
participated in a forensic interview before Mrs. Sherrill’s police interview. He said that
the victim’s brother “was really all over the place during the interview” and that he did
not recall if the victim’s brother made any statements about sexual acts. Investigator
Goetz said that he did not think the victim’s brother comprehended what was going on
but that the victim was able to corroborate Mrs. Sherrill’s statement to Ms. Prince that
Mrs. Sherrill had engaged in sexual activity with the victim in the Defendant’s presence.

Investigator Goetz testified that the report he prepared about the interview of Mrs.
Sherrill was consistent with what she said in the recording. The report was received as an
exhibit. The report contains the following relative to sexual conduct involving the
victim’s brother:

-16-
 During the interview[, Mrs. Sherrill] stated that some months before
[the June 3 and 5, 2014 incidents with the victim,] that she was lying in bed
and her youngest son, [the victim’s brother] was lying on her left arm and
[the Defendant] on her right side. [The Defendant] began playing with her
breast and had [the victim’s brother] get between her legs and that [the
Defendant] help[ed] show [the victim’s brother] how to get an erection and
told [the victim’s brother] to put it in his mother and she stated that [the
victim’s brother] did go inside her but after a minute she pushed him off
and stated this isn’t right and went outside.

Investigator Goetz testified that the only home address for the Sherrill family
listed in his report was in Wayne County. He said Mrs. Sherrill was not charged with an
offense involving the victim’s brother in Wayne County because the offense she
described involving the victim’s brother occurred in Lawrence County. He said he was
able to “somewhat corroborate” Mrs. Sherrill’s statement about the incident with the
victim’s brother because she said the police had been called on the same night to a home
in Lawrence County in which the family was living at the time. He said he was able to
determine the date and time that the police had responded. He said no offense had been
presented to the Lawrence County Grand Jury regarding the Defendant because he had
been unable to corroborate Mrs. Sherrill’s statement that the Defendant had been present
during the sexual activity between Mrs. Sherrill and the victim’s brother in Lawrence
County.

Investigator Goetz agreed that, as a result of the investigation, two people were
indicted in Wayne County and one in Lawrence County. He said the address identified in
his report was the Sherrill marital home in Wayne County. He said that the Lawrence
County offense involving Mrs. Sherrill and the victim’s brother was corroborated as to
Mrs. Sherrill’s involvement because she said it had occurred on the same night as law
enforcement officers were called to the marital home in Lawrence County regarding a
domestic disturbance and that he was able to determine the date and nature of the police
response to the home. He agreed that the Defendant had been arrested for domestic
assault and said that, to the best of his recollection, the report filed relative to the incident
did not mention Mrs. Sherrill having had sex with the victim’s brother.

Assistant Public Defender Hershell Koger, who was Mrs. Sherrill’s defense
counsel, testified that Mrs. Sherrill was charged with aggravated rape, a Class A felony,
which required a fifteen to twenty-five-year sentence to be served at 100% but that
everyone involved in the plea agreement believed that the offenses to which Mrs. Sherrill
pleaded guilty meant the greatest individual sentence she would receive was twelve years
at 30%, although she still faced the possibility of consecutive sentencing. He agreed that
Mrs. Sherrill agreed to testify against the Defendant as a State’s witness. He said the plea
discussions covered Mrs. Sherrill’s charges in both Wayne and Lawrence Counties. He

-17-
said that, sometime after the Defendant’s trial, he spoke with the prosecutor, who advised
him that Mrs. Sherrill would not receive a sentence with 30% release eligibility for rape.
He said he confirmed that the law required this and filed a motion to withdraw or amend
the guilty plea.

Mr. Koger testified that the defense team filed a motion to withdraw Mrs.
Sherrill’s guilty plea or, in the alternative, to amend the guilty plea to reflect a change in
the rape offenses in Wayne County. A copy of the motion was received as an exhibit.
Mr. Koger said that the motion stated that the plea agreement had been premised upon the
parties’ intent that Mrs. Sherrill be sentenced as a Range I offender with 30% release
eligibility and that the parties believed at the time the agreement was reached that none of
the offenses to which Mrs. Sherrill pleaded guilty were subject to a more onerous
sentencing scheme. He said there was no agreement as to the number of years that Mrs.
Sherrill would serve.

Mr. Koger testified that the trial court agreed to allow the parties to amend the
guilty plea to the offense of rape to reflect a guilty plea to the offense of facilitation of
aggravated rape. Mr. Koger said this permitted Mrs. Sherrill to have a B felony
conviction with 30% release eligibility, which had been the original intent. He said that,
on the date of the motion hearing, the parties were able to reach a further agreement as to
the length of the sentence, which was ten years. He said the court accepted the agreement
as to the length of the sentence. He acknowledged that the trial judge made comments
concerning Mrs. Sherrill and the Defendant receiving comparably equitable sentences.
He said that, ultimately, the judge reviewed the matter, stated he was satisfied, and “took
the plea.” When asked if Mrs. Sherrill received a benefit for testifying against the
Defendant, Mr. Koger said, “Her benefit was the open plea.”

At the hearing on the motion for a new trial, the Defendant’s counsel stated that he
had not been aware of Mrs. Sherrill’s Lawrence County charge and guilty plea until after
the Defendant’s trial. He acknowledged, however, that he had received the report
prepared by Investigator Goetz which summarized Mrs. Sherrill’s account of the
Lawrence County incident involving the victim’s brother.

A. Trial Court’s Use of Harmless Error Analysis

We address, first, the Defendant’s argument that the trial court erroneously
analyzed the Brady issues by utilizing a harmless error standard. As we have stated,
Edgin provides the framework to be applied in determining whether a Brady violation has
occurred. See Edgin, 902 S.W.2d at 389. At the hearing on the motion for a new trial,
the court did not employ the Edgin criteria and, instead, noted the following:

-18-
 [W]e all know that in the Appellate Courts they sometimes find an error in
the Trial Court and then they move on to evaluate whether or not that error
was harmless beyond a reasonable doubt. I don’t know whether -- I’m not
used to doing that at the trial level, but I do think based on some other
procedures that are somewhat similar, this Court must decide whether it
makes any difference or not. For example, what if there was a Brady
violation? And I’m not suggesting that [the prosecutor] would intentionally
violate Brady, but what if they failed to disclose something that you would
not under any circumstance have used anyway during the trial, is it
therefore harmless and does not justify a new trial?

At a later point in the hearing, the court found that information regarding Mrs. Sherrill’s
Lawrence County guilty plea “could be Brady material” but that the State’s lack of
disclosure of the information was “harmless beyond a reasonable doubt.” The court did
not specifically reference harmless error in resolving the Brady claim related to Mrs.
Sherrill’s release eligibility pursuant to the Wayne County plea agreement, but it also did
not reference the Edgin factors.

When a defendant establishes the existence of all four Edgin factors, he “has
inherently established that the violation was not harmless; thus, a separate harmless error
analysis is unnecessary and inappropriate.” Jackson, 444 S.W.3d at 595; see also Kyles,
514 U.S. at 435. The record reflects that the trial court did not utilize the required Edgin
framework for determining whether Brady violations had occurred. We will review the
Brady issues through the Edgin framework to determine whether the Defendant is entitled
to relief.

B. 30% Release Eligibility in Wayne County Plea Agreement

The Defendant argues that the State failed to disclose its Wayne County agreement
with Mrs. Sherrill for 30% release eligibility in exchange for her testimony against him.
In denying the motion for a new trial, the trial court stated the following:

I believe when [the prosecutor and Mrs. Sherrill’s counsel] appeared before
me to modify [Mrs. Sherrill’s] judgment and sentence so that she would
have an effective 30 percent release eligibility instead of 100 percent
release eligibility, you changed the agreement with her, and between the
two sides her charge from a rape to an attempt to commit an aggravated
rape;4 is that correct? So that the years of service were the same, but the
release eligibility was less.

4
The prosecutor advised the court that the conviction offense was facilitation of aggravated rape, rather than
attempted aggravated rape.
-19-
 ...

I’ve addressed already the difference between 100 percent and 30
percent. But I’ve not specifically addressed that [defense counsel] might
have some impeachment points by cross examining Jennifer Sherrill on the
fact that she had a 30 percent agreement instead of [a] 100 percent
agreement. But of course, she didn’t . . . effectively have a 30 percent
agreement at that time, even though the two lawyers understood that she
was getting a 30 percent agreement because both of them were thinking
about the Statute before rape was added to that list of 85 percent cases.
And the Court will acknowledge that it might have made some difference to
[the] triers of fact especially if they were still sentencing as they did in
Tennessee before the 1982 changes in the law. I think back when juries set
the sentence if they knew that one co-defendant, especially a so called
hands-on codefendant, was getting 30 percent release eligibility they might
have wanted to give [the Defendant] a 30 percent release eligibility too.
But the difference is they are not permitted under current law to know
about what the length of the sentence is, what the range of the sentence is
and what percentage of sentence you have to serve before you are eligible
for parole, so none of those things would have been known to the jury.
Even if you were able to ask, “did the State give you 30 percent release
eligibility instead of 100 percent release eligibility,” the jury would not
have been allowed to know that [the Defendant] was not going to get a 30
percent release eligibility. Those are just not jury questions under current
Tennessee law.

We begin by noting the trial court’s finding that the evidence had potential
impeachment value. As we have stated, impeachment evidence falls within the purview
of Brady. See Jackson, 444 S.W.3d 554. Turning to the Edgin factors, we note that the
Defendant filed a discovery request which specifically requested the disclosure of Brady
materials. See Edgin, 902 S.W.2d at 389 (stating that a defendant must request the
information, absent obvious exculpatory character). The record reflects that the defense
was aware of Mrs. Sherrill’s Wayne County plea agreement; that the State, Mrs. Sherrill,
and her counsel were under the mistaken impression that she would receive 30% release
eligibility for the rape convictions; and that the release percentage was not specified in
the original written guilty plea petition. The State did not disclose the mistaken
impression regarding the release eligibility, although it was unaware until after the
Defendant’s trial that the parties to Mrs. Sherrill’s plea agreement had been mistaken
about the permissible release eligibility percentage that was available for the offenses to
which she was pleading guilty. See id. (stating that the State must have suppressed the
information). The information was favorable in the sense that it provided impeachment

-20-
evidence. See id. (stating that the information must be favorable to the accused). In any
event, the evidence was not material. The jury knew from Mrs. Sherrill’s testimony that
she had a plea agreement with the State. Her counsel testified that the benefit she
received was the plea agreement itself and not an illegal and unenforceable release
eligibility percentage in exchange for her testimony. As the trial court noted, the
sentencing terms to which the Defendant might be subject would have been inadmissible.
Any additional impeachment value that the Defendant might derive from impeachment
about the specifics of the agreement would have been de minimus and not material. See
id. (stating that the information must be material). Despite its failure to conduct an Edgin
analysis, the trial court did not err in denying the Defendant’s Brady claim as to the
mistake regarding 30% release eligibility pursuant to Mrs. Sherrill’s original plea
agreement.

C. Lawrence County Charge and Plea Agreement

The Defendant argues that the State’s nondisclosure of Mrs. Sherrill’s Lawrence
County charge involving the victim’s brother and the plea agreement disposing of this
charge deprived the Defendant of the opportunity to cross-examine her about her
propensity to commit an offense of a similar nature without the Defendant’s involvement.
In resolving the issue, the trial court stated the following:

. . . I do think [the information about Mrs. Sherrill’s Lawrence County
charge and guilty plea] is in the Brady category of information which if not
disclosed might justify some significant relief for [the Defendant].

But the Court finds that the defendant, or at least his counsel . . . ,
had what is now Exhibit A, the investigation report by Investigator Goetz
that evidenced sexual conduct between Jennifer Sherrill and the younger
child [the victim’s brother]; for which she was indicted and pled guilty in
Lawrence County, separate and apart from the sexual conduct she engaged
in with the older child [the victim] in Wayne County. I can see where
[defense counsel] perceived back on February 22nd5 that the conduct she
was pleading to in Lawrence County may have occurred at the
Lawrenceburg Housing Authority Apartments after [the Defendant] was out
of the picture. He could have reasonably inferred that. And if that in fact
had occurred it would have been powerful cross examination of Jennifer
Sherrill when she claimed that her husband was forcing her to have sex
with [the victim] in front of that Lawrence County – I mean in front of this
Wayne County jury to have been able to ask her, “well, didn’t you after [the

5
The motion for a new trial was filed on February 22, 2017.

-21-
 Defendant] was totally out of the picture, have sex with one or both
children while you lived at the Lawrenceburg Housing Authority
Apartments?”

But now with Mr. Goetz[’s] testimony today and explanation of
what Exhibit A means, and where that page two paragraph event with [the
victim’s brother] actually occurred as he learned in further investigation
and confirming with incident reports from the Lawrence County Sheriff’s
Department what [defense counsel] saw did not make it clear what exactly
happened, when and where. And I think he had reason as I’ve said already
on February 22nd to believe that the Lawrence County crime of Jennifer
Sherrill occurred after [the Defendant] was out of the picture.

But today, we now learned that [defense counsel] did have
knowledge of Jennifer Sherrill having sexual intercourse with [the victim’s
brother]. But now, we also learned that according to Jennifer Sherrill, [the
Defendant] was present at that time. So, the Court today is inclined to
believe that the State had provided factual information about the event
which led to the Lawrence County indictment even if it did not specifically
call to [defense counsel’s] attention that that act had resulted in not only
[an] indictment, but a guilty plea by Jennifer Sherrill in Lawrence County
in October of 2016 before [the Defendant] went to trial in December of
2016 in Wayne County. And certainly before Jennifer Sherrill testified
against him in that December trial. Good lawyering but with a
misperception of the fact that the [the victim’s brother’s] incident was the
one and only incident that Jennifer admitted, was charged with or pled
guilty to. I don’t think the defendant is entitled . . . to any relief on Brady
material.

....

. . . You understand that I’m finding the [Lawrence County] guilty plea
could be Brady material. What I’m finding though is that the State’s failure
to inform you of that guilty plea is harmless beyond a reasonable doubt.
Now, if that is the wrong standard for the Court to be applying, they can fix
it in the Appellate Courts.

Although the trial court did not employ the Edgin framework, it found that Mrs.
Sherrill’s Lawrence County charge and guilty plea to a sexual offense against the
victim’s brother was potential relevant impeachment evidence. We acknowledge that
conviction of a crime may be relevant impeachment evidence for cross-examination of a
State’s witness. In this case, however, the Defendant argues that the information

-22-
regarding the Lawrence County offense was relevant to show that, despite Mrs. Sherrill’s
testimony that the Defendant forced her to have sex with the victim, she had a propensity
to commit offenses against the children without the Defendant’s involvement. The
Defendant’s argument regarding the relevance of the information relies upon a faulty
factual premise. As Investigator Goetz testified at the motion for a new trial hearing, the
Lawrence County incident involving the victim’s brother for which Mrs. Sherrill was
indicted and pleaded guilty occurred when the Defendant lived with the family in
Lawrence County, and the Defendant was implicated and avoided being charged only
because Investigator Goetz could not establish corroboration of Mrs. Sherrill’s statement
that the Defendant was involved. The Defendant has not shown that this information was
potentially relevant impeachment evidence. See id.

Despite this conclusion, we will analyze the remaining Edgin factors. As we
stated previously, the record reflects that the Defendant requested Brady information.
See Edgin, 902 S.W.2d at 389. Although the defense received the report which
referenced the incident which led to the Lawrence County charge and guilty plea, the
State did not disclose the existence of the charge and the plea. Id. As we have noted, the
information was not favorable to the Defendant, nor was it material. See id. The
evidence did not hold value in demonstrating that Mrs. Sherrill had a propensity to
commit sexual offenses against her children without the Defendant’s involvement.

Despite the trial court’s failure to analyze the Defendant’s Brady claims properly,
the court nevertheless reached the correct result in denying the claims. The Defendant is
not entitled to relief on this basis.

III

Missing Evidence

The Defendant contends that the trial court erred in denying his motions to dismiss
pursuant to State v. Ferguson based upon the partial loss of the recording of Mrs.
Sherrill’s investigative interview and the loss of any recording of the Defendant’s
investigative interview. The State responds that the court did not err in denying the
dismissal motions. We agree with the State.

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).
As a result, the State has a constitutional duty to furnish a defendant with exculpatory
evidence pertaining to his guilt or lack thereof or to the potential punishment faced by a
defendant. See Brady, 373 U.S. at 87.

-23-
 Our supreme court has held that the State has a duty to preserve discoverable
evidence when the evidence

might be expected to play a significant role in the suspect’s defense. To
meet this standard of constitutional materiality, evidence must both possess
an exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.

State v. Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999) (quoting California v. Trombetta, 467
U.S. 479, 488-89 (1984)); see Tenn. R. Crim. P. 16 (discoverable evidence); see also
State v. Merriman, 410 S.W.3d 770, 779 (Tenn. 2013). The supreme court has said that
the proper inquiry involves, first, determination of whether the State had a duty to
preserve the evidence. Ferguson, 2 S.W.3d at 917. This duty to preserve applies to
“potentially exculpatory” evidence. Merriman, 410 S.W.3d at 793 (citing Ferguson, 2
S.W.3d at 917). If the State failed to fulfill the duty, three factors must be considered:

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of the
probative value and reliability of secondary or substitute evidence that
remains available; and

3. The sufficiency of the other evidence used at trial to support the
conviction.

Id. The supreme court has said that in evaluating these factors:

[T]he central objective is to protect the defendant’s right to a fundamentally
fair trial. If, after considering all the factors, the trial judge concludes that a
trial without the missing evidence would not be fundamentally fair, then the
trial court may dismiss the charges. Dismissal is, however, but one of the
trial judge’s options. The trial judge may craft such orders as may be
appropriate to protect the defendant’s fair trial rights. As an example, the
trial judge may determine, under the facts and circumstances of the case,
that the defendant’s rights would best be protected by a jury instruction.

Id. A trial court’s application of the Ferguson factors involves a constitutional issue, and
our supreme court has concluded that the proper standard of review on appeal concerning
the fundamental fairness of a trial is de novo. Merriman, 410 S.W.3d at 791.

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 The trial court held a pretrial hearing on the Defendant’s motion to dismiss based
upon the partial loss of the recording of Mrs. Sherrill’s investigative statement. The
defense did not offer evidence pertinent to the issue, although the parties generally agreed
for purposes of their arguments that a recording of a portion of the interview was
unavailable due to a computer “glitch” but that the defense had received Investigator
Goetz’s written account of the interview. The defense argued that it was unable to
prepare adequately without knowing Mrs. Sherrill’s exact words about the offenses and
that Investigator Goetz’s secondhand account and subjective interpretation of Mrs.
Sherrill’s statement were inadequate. The court denied the motion to dismiss without
stating its rationale. At the trial, the court instructed the jury that a portion of the
recording of Mrs. Sherrill’s investigative interview had been lost due to “some sort of
computer defect.”

As we have stated previously, Investigator Goetz testified at the trial that he
thought his interview of the Defendant had been recorded. In a jury-out hearing, the
court asked whether an inquiry “into anything about discovery and Ferguson related
matters about whether or not there was a recording of [the Defendant]” was necessary.
Defense counsel stated, “I’ve spoken with the Attorney General, and in all candor to the
Court, outside of the [Ferguson] jury instruction that the Court has already indicated it’s
going to give, I don’t know any other remedy that’s available.”6 Investigator Goetz
stated during the jury-out hearing that it was possible he might not have asked for a copy
of a video recording and that no recording existed on his digital audio recorder, meaning
that he had not used the audio recorder. After the close of the proof, the court gave a jury
instruction which informed the jury of the State’s obligation to gather, preserve, and
produce evidence which may have exculpatory value, and which informed the jury that it
if it found that the State had failed to fulfill its duties, the jury could infer that the missing
evidence was favorable to the Defendant.

At the motion for a new trial hearing, Investigator Goetz testified that he prepared
a four-page report in the course of his investigation of sexual abuse allegations involving
the victim and the victim’s brother. The report was received as an exhibit. He said that
he interviewed Mrs. Sherrill on July 7 of an unidentified year at the Lawrenceburg Police
Department. He said Captain Don Laws was present, as well. He said the interview took
place in a room which had audio/visual recording equipment. He said, “[A]t the end of

6
The Defendant claims in his appellate brief that, at the trial, he made a motion to dismiss based upon the failure to
provide the recording of the Defendant’s statement. The volume and page the Defendant references in his brief fails
to reflect that defense counsel made a motion to dismiss on this basis. Our review of the trial transcript reflects only
the statement we have quoted above, which we do not view as a motion to dismiss. Nevertheless, the motion for a
new trial alleged, in reference to the nondisclosure of any recording of the Defendant’s interview, that the court
erred “in not granting Defendant’s Motion to Dismiss on its own volition when it became known during the trial that
more than the previously mentioned video interview [of Mrs. Sherrill] was missing.”
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the interview they burned me, I believe two cd’s and I turned those into my file and it
was at a later date that I learned that they didn’t work.” He said he learned that the first
part of the interview had not been recorded due to a “software glitch.” He said he had not
viewed the recording immediately after it was made and had not realized the issue existed
until later.

Investigator Goetz testified at the hearing that he had not noted on his report that
his interview of the Defendant had been recorded. He said that his practice was to note
on his report whether an interview was audio or video recorded. He said that if he did not
make a notation, this meant the interview had not been recorded. He said he had checked
his digital recorder, which he used if other recording equipment were unavailable, and
that he did not have a recording of the Defendant’s interview. Investigator Goetz said
that he “felt like” he had interviewed the Defendant in the Lawrenceburg Police
Department’s room equipped with a recording device. Investigator Goetz said, however,
that he “misspoke” at the Defendant’s trial and that the absence of a notation that the
interview had been recorded indicated that the Defendant’s interview had not been
recorded.

Mr. Hershell Koger testified at the motion for a new trial hearing that he and
another attorney represented Mrs. Sherrill in the Wayne and Lawrence County
prosecutions. Mr. Koger agreed that he had been the person who discovered that the first
part of the recording of Mrs. Sherrill’s police interview was “corrupt.” He said that, had
the judge asked if he would make Mrs. Sherrill available to the Defendant’s counsel in
order to investigate what she may have said during the missing portion of the recording,
he would have refused.

A. Mrs. Sherrill’s Interview

The Defendant contends that the trial court erred in denying his motion to dismiss
based upon the partial loss of the recording of Mrs. Sherrill’s investigative interview.
The Defendant argues that he was charged with criminal responsibility for Mrs. Sherrill’s
actions and that knowledge of her exact words regarding his alleged conduct was
necessary in order to be prepared to defend against the charges. He argues, as well, that
he lost the opportunity to impeach her with any inconsistencies between her pretrial
statement and her trial testimony.

Evidence of the exact contents of Mrs. Sherrill’s statement to investigators
possessed potentially exculpatory value. See id. at 793. As such, the State had a duty to
preserve it. See Ferguson, 2 S.W.2d at 917. In evaluating the degree of negligence
involved, we note that the nonexistence of a recording of a portion of the interview
occurred through inadvertence and was due to an equipment failure, rather than

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negligence or willful misconduct in maintaining a copy of the recording and in providing
it to the defendant. See Merriman, 410 S.W.3d at 793.

We consider, next, the significance of the unavailable evidence in light of the
other, available evidence and the sufficiency of the other evidence to support the
convictions. See id. We acknowledge that Mrs. Sherrill’s account of what transpired
relative to the offenses was a significant component of the State’s proof. However, the
victim was able to provide information which established the Defendant’s presence
during, promotion of, and encouragement of the offenses. The portion of Mrs. Sherrill’s
interview which was captured on the video is almost one hour long, and in the recorded
portion, she provided detailed information about the Defendant’s participation in the
offenses. Investigator Goetz prepared a written report about the interview, and the
defense received his report. The defense thoroughly cross-examined Mrs. Sherrill about
her prior statement and the details of the offenses and was able to impeach her with prior
inconsistencies.

Upon consideration of these factors, we conclude that the trial court did not err in
its determination that the Defendant could have a fundamentally fair trial protected by
adequate curative measures and that a dismissal was not warranted. We conclude, as
well, that the court’s jury instructions were an appropriate and adequate remedy for the
absence of a recording of a portion of Mrs. Sherrill’s interview. The Defendant is not
entitled to relief on this basis.

B. Defendant’s Interview

The Defendant contends in a single sentence in his brief that the trial court erred in
denying a motion to dismiss based upon the lack of disclosure of an alleged recording of
the Defendant’s investigative interview, but he has not explained why the court erred.
Issues which are not supported by an argument are waived. Tenn. R. Ct. Crim. App.
10(b); see T.R.A.P. 27(a)(7).

IV

Prosecutorial Misconduct

The Defendant contends that the trial court erred in denying his motion to dismiss
based upon alleged prosecutorial misconduct in failing to disclose the existence of Mrs.
Sherrill’s Lawrence County charges and a plea agreement. The State counters that no
suppression, and therefore no prosecutorial misconduct, occurred. We agree with the
State.

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 The Defendant’s argument is premised upon his allegation that a Brady violation
occurred relative to the Lawrence County prosecution of Mrs. Sherrill. He argues that
Investigator Goetz’s report, which defense counsel acknowledged he had received before
the trial, did not specify that the sexual conduct between Mrs. Sherrill and the victim’s
brother took place in Lawrence County. The record reflects that the Defendant, Mrs.
Sherrill, the victim, and the victim’s brother lived together as a family in both Wayne
County and Lawrence County. Investigator Goetz’s report described the sexual conduct
that formed the basis for the Lawrence County charges and identified the time frame
within which the conduct occurred. As we stated in Section II.C., no Brady violation
occurred relative to the specific non-disclosure of Mrs. Sherrill’s Lawrence County
charges and plea agreement. We again note that the purported evidentiary value of this
evidence to the defense was to show that Mrs. Sherrill had the propensity to sexually
assault her children without the Defendant’s involvement, yet the facts underlying the
Lawrence County charges showed that the Defendant promoted and assisted in the
offenses against the victim’s brother. The defense had received information about the
substantive nature of the offense, and no evidence suggests that the Defendant was
unaware of or had a disability preventing his recall of where he lived previously. The
Defendant failed to show that prosecutorial misconduct occurred, and the trial court did
not err in denying relief on this basis.

V

Cumulative Error

The Defendant contends that due process compels a new trial because of the
existence of cumulative error. The concept of cumulative error is that multiple errors,
though harmless individually, cumulatively violate a defendant’s right to a fair trial.
State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010). We have examined each of the
Defendant’s allegations of error and have concluded that none require relief. There are
not multiple errors to accumulate in assessing whether due process compels a new trial.
As such, this claim must fail.

VI

Sentencing

A. Motion to Reduce Sentence

The State contends that the trial court erred in reducing the Defendant’s rape
sentences from ten to eight years. It argues that Tennessee Rule of Criminal Procedure
35 requires evidence of unforeseen post-sentencing developments to support modification
of a sentence and that no such developments were shown. The Defendant counters that

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post-sentence developments warranting a sentence reduction were established based upon
Mrs. Sherrill’s withdrawal of her original plea agreement and the terms of the modified
plea agreement, which occurred after the Defendant’s sentencing. We conclude that the
court erred in granting the Defendant’s Rule 35 motion to reduce the rape sentences.

At the sentencing hearing, the trial court imposed sentences of five years for each
of the two incest convictions and ten years for each of the two rape convictions, and the
court imposed all sentences concurrently. After the hearing, the Defendant filed a motion
for reduction of his sentence pursuant to Tennessee Rule of Criminal Procedure 35. The
Defendant alleged that (1) the State had not disclosed the 30% release eligibility term of
Mrs. Sherrill’s original Wayne County plea agreement and that she had been allowed
after the Defendant’s sentencing hearing to amend the agreement and enter a plea to
different offenses which had a statutory 30% release eligibility and (2) the Defendant’s
sentences were excessive because the court inappropriately applied the enhancement
factor for a defendant who was a leader in the commission of the offense and because the
court considered as enhancement evidence facts related to the Defendant’s “flight” after
he was indicted.

At the hearing in which the trial court considered the motion for a new trial and
the Rule 35 motion, Mr. Koger acknowledged that when Mrs. Sherrill’s modified plea
agreement was presented to the court, the judge expressed concern about equity in
sentencing as between Mrs. Sherrill and the Defendant. The trial court then stated:

[I]’m willing to put on the record my recollections of that as well, which is
going to be largely consistent. In other words, the Court was concerned – I
even think that in the effort to . . . schedule a hearing on Mr. Koger’s
motion, I believe there was a telephone conference call where I was in my
office in Columbia and I told [the prosecutor and a member of the defense
team] . . . [t]hat I was very much concerned about what modifying the
Jennifer Sherrill sentence might do to the Court’s thinking about the
appropriateness of [the Defendant’s] sentence. And this may be a good
time to mention it, we will talk about more in detail later, but the Court’s
concern is not just human nature concern, but it’s expressed in our
sentencing law, under section 40-35-102, which says the foremost purpose
of this chapter is to promote justice and in doing so adopts the following
principles:

(1) A sentence justly deserved; and

#2 principle: Is to assure fair and consistent treatment
of all defendants by eliminating unjustified disparity in
sentencing.

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 I didn’t have [the statute] in front of me when I was talking to [the
prosecutor and defense counsel], but I expressed concern even before Mr.
Koger and [the prosecutor] met in Lawrenceburg about whether the Court
could grant such a break to Jennifer Sherrill without having to at least
consider such a break for [the Defendant].

After receiving the proof at the Defendant’s motions hearing, the trial court stated,
in pertinent part:

But what I want to give the State notice of before this final
argument, if I can today, I’m going to shorten the sentence from ten years
to eight years for [the Defendant]. And my logic for not doing more first of
all is I don’t know of any grounds for granting a new trial, or granting a
Judgment of Acquittal. I think that the so called Brady material was
adequately disclosed in a factual context if not in a charge and guilty plea
context. To have permitted its use for cross examination if it did not
unduly prejudice this current defendant which the Court thinks it would
have. But I do think the Court can, on the Motion for New Trial, revisit the
sentencing, besides I’ve got a specific motion for reducing the sentence.
And on the one hand – let me go ahead and say this while it is on my mind,
and this is a finding of fact, unless somebody convinces me to change my
mind about this – ideally the court would and the Tennessee law would like
to see [defendants] treated the same, if their conduct, culpability, mental
capacity and other factors are equal. The law and the Court would want
those punishments to be equal. But I think we’ve got grounds for several
findings in this case.

One, they may in fact be equal because of 503(c) the parol[e] board
could require Jennifer Sherrill to build 85 percent of her sentence, the same
as they are going to require [the Defendant] to build 85 percent of his. So,
they might be equal anyway.

But those defendants are not necessarily themselves equal. My
understanding is that [the Defendant has] a regular high school diploma, not
a Special Education high school diploma. But we know from the testimony
at the trial from Mr. Harrison that Jennifer Sherrill early in her education
was recognized to be Special and was in a Special Education program from
early to middle elementary school through high school and received a
Special Diploma. Her difficulty in testifying in Circuit Court and being
[inconsistent] about a number of things, goes to the sufficiency of the

-30-
 evidence against [the Defendant] on the one hand, but also reaffirmed her
mental challenges on the other hand.

So, [the Defendant] may have more mental capacity than Jennifer
and may have been more . . . “in control” . . . in the household than
Jennifer, may have had the ability and the desire to control her conduct in
these sexual events with the children. So, therefore from a culpability
standpoint he may have more responsibility and therefore deserve more
punishment.

And on another factor, Jennifer Sherrill was more cooperative,
maybe to some extent because of her lack of mental capacity she may have
spilled her guts more than a more intelligent defendant would have. While
on the other hand, [the Defendant] was hiding out for a couple of months to
avoid arrest and prosecution and never took responsibility for his actions.
But to minimize any issues [defense counsel] raises today in his motions
with regard to enhancing and mitigating factors. And to try to accomplish
some equality in sentencing under the principles of 102, the Court believes
it appropriate on this Motion for New Trial and on the Motion to Reduce
Sentence to reduce the ten year sentences to eight years, but still leave them
as in effect 100 percent offenses for which he can get no more than 15
percent credit because of finding that we don’t have serious inequality.

After hearing the parties’ arguments, the trial court stated the following after
discussing with the parties the best way to effectuate its intent in the orders and
judgments:

Okay, let’s do that then, do very simple case status orders or whatever on
both the defendant’s motions, denying the Motion for New Trial and any
alternative relief on that Motion, but granting the Rule 35 motion by
reducing the Counts five and six sentences from 10 years to 8 years. The
Court will leave the incest sentences at five years on Counts three and four.

Thereafter, orders denying the motion for a new trial and granting the Rule 35 motion
were filed, and amended rape judgments reflecting eight-year sentences were entered.

Tennessee Rule of Criminal Procedure 35 permits a trial court to reduce a sentence
upon motion filed within 120 days of the imposition of the sentence or revocation of
probation. Tenn. R. Crim. P. 35(a).

The intent of this rule is to allow modification only in circumstances
where an alteration of the sentence may be proper in the interests of justice.

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 The modification permitted by this rule is any modification otherwise
permitted by the law when the judge originally imposed sentence including
but not limited to a transfer to the workhouse or probation to otherwise
eligible defendants. If there is a modification, the state may appeal.

Id. (Advisory Comm’n Cmts.). Appellate review of a motion to reduce a sentence
pursuant to Rule 35 is for abuse of discretion. State v. Irick, 861 S.W.2d 375, 376 (Tenn.
Crim. App. 1993); see State v. Ruiz, 204 S.W.3d 772, 777-78 (Tenn. 2006) (noting Irick).
An abuse of discretion is shown “only when the trial court has applied an incorrect legal
standard, or has reached a decision which is illogical or unreasonable and causes an
injustice to the party complaining.” Ruiz, 204 S.W.3d at 778.

This court has held repeatedly that Rule 35 relief is appropriate if unforeseen post-
sentencing information or developments compel reduction of the sentence in the interests
of justice. See, e.g., State v. McDonald, 893 S.W.2d 945, 947-48 (Tenn. Crim. App.
1994); State v. Jonathan David Patterson, No. M2016-01716-CCA-R3-CD, 2017 WL
4342212 (Tenn. Crim. App. Sept. 29, 2017), perm. app. granted (Tenn. Feb. 14, 2018).
We acknowledge that our supreme court in Jonathan David Patterson has granted
permission to appeal in a case in which the defendant advocates for a change of the law
to permit a trial court to act within its discretion to modify a sentence that the court has
decided is too severe, despite the absence of unforeseen post-sentencing developments or
information. See State v. Jonathan David Patterson, No. M2016-01716-CCA-R11-SC
(Tenn. Nov. 29, 2017) (Tennessee Rule of Appellate Procedure, Rule 11 application for
permission to appeal); id. (Tenn. Feb. 14, 2018) (order granting permission to appeal).
At the present time, however, existing authority provides that, pursuant to Rule 35,
modification of a sentence in “the interests of justice” requires a showing of unforeseen
post-sentencing information or developments.

Turning to the present case, the State argues that Mrs. Sherrill’s amended plea
agreement with 30% release eligibility was not an unforeseen post-sentencing
development. The State argues that it is commonplace and therefore foreseeable that a
codefendant who pleads guilty and testifies against a defendant may receive a more
favorable sentence than a defendant who is convicted at a trial. We agree. The evidence
shows that, at the time of the Defendant’s sentencing, Mrs. Sherrill had pleaded guilty
without an agreement as to her sentence and had not yet been sentenced. Thus, the
Defendant did not know what sentence Mrs. Sherrill would receive. Although the
Defendant did not know, specifically, that the parties to Mrs. Sherrill’s plea agreement
had been under a mistaken impression that Mrs. Sherrill would receive 30% release
eligibility, he knew that she had pleaded guilty and had cooperated with the State by
testifying against him. Based upon this information, he should have known that she was
likely to receive a more favorable sentence than he would. We note, as well, that even
though the Defendant had no specific knowledge at the time of his sentencing that Mrs.

-32-
Sherrill would later move to withdraw her plea, the withdrawal of her plea was in accord
with the Rules of Criminal Procedure. See Tenn. R. Crim. P. 32(f)(1) (permitting
withdrawal of a guilty plea “for any fair and just reason”).

In addition, the trial court’s comments relative to the motion to reduce the
Defendant’s sentence show that it was influenced by the desire to “minimize any issues
[defense counsel] raises today in his motions with regard to enhancing and mitigating
factors” as well as to “try to accomplish some equality in sentencing under the principles
of [Code section 40-35-]102.” To the extent that the court considered the propriety of its
previous application of enhancement factors, it examined matters that existed at the time
of its sentencing determination and thus were not unforeseen post-sentencing information
or developments. See State v.Randall Evans, No. E2015-01815-CCA-R3-CD, 2016 WL
4582499, at *4 (Tenn. Crim. App. Sept. 2, 2016) (holding that the trial court erred in
considering, for purposes of a Rule 35 motion, evidence that had been presented “prior to
the entry of the judgment of conviction”). A Defendant’s redress for the alleged
erroneous application of enhancement factors is through an appeal as of right. See T.C.A.
§ 40-35-401(b), (d) (2014); Ruiz, 204 S.W.3d at 777 (noting that an appeal of a sentence
is distinct from an appeal from a Rule 35 motion to reduce a sentence). In addition, the
court made detailed observations about the relative mental capabilities of the Defendant
and Mrs. Sherrill and about their comparative culpability in the offenses. The court’s
factual observations concern evidence which was before it at the time of sentencing and,
as such, did not constitute unforeseen post-sentencing information or developments. See
Randall Evans, 2016 WL 4582499, at *4.

Because the trial court reduced the Defendant’s sentence based upon facts and
circumstances which existed at the time of sentencing, as well as upon matters which did
not constitute unforeseeable post-sentencing information and developments, its reduction
of the Defendant’s sentence constituted an abuse of discretion. As such, we must reverse
the court’s sentence reduction for the rape convictions, reinstate the ten-year sentences,
and remand for entry of amended judgments.

B. Propriety of the Original Sentencing Determination

In reaching the conclusion that the trial court erred in reducing the Defendant’s
rape sentences pursuant to Rule 35, we have not overlooked the Defendant’s argument at
the hearing on the motions for a new trial and Rule 35 reduction of sentences that the trial
court had misapplied enhancement factors when it originally imposed the sentences. The
previous application of enhancement factors does not constitute unforeseen post-
sentencing information or developments contemplated by Rule 35. See Tenn. R. Crim. P.
35; cf. Jonathan David Patterson, 2017 WL 4342212, at *1 (Witt, J., concurring)
(“Sound policy reasons dictate that a defendant not be availed the power to effectively
challenge the original sentence by filing a Rule 35 motion after the trial court’s

-33-
jurisdiction has ended.”) (emphasis in original). The Defendant’s motion for a new trial,
however, raised issues regarding the application of enhancement factors and, although
this was not a basis upon which the court could have granted a new trial, it raised an issue
of alleged trial court error, and it did so before the judgment had become final. The
Defendant has not raised an issue regarding the original sentencing on appeal, although
he came to this court having been granted relief in the form of a reduction to the
minimum sentence for rape. See T.C.A. § 40-35-111(b)(2) (2014) (stating that a person
conviction of a Class B felony shall receive a sentence which is between eight and thirty
years). Also, the record reflects that the trial court considered both the question of the
propriety of its previous application of enhancement factors and the motion for a sentence
reduction at the combined hearing on the motion for a new trial and the Rule 35 motion.
Separate from our review of the court’s action pursuant to Rule 35, we will consider
whether the trial court erred in its original sentencing determination.

This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

As we have stated, the Defendant challenged the application of the enhancement
factor related to his leadership in the offenses and to his “flight” after his indictment.
Tennessee Code Annotated section 40-35-114(2) (2014) (amended 2015, 2016, 2017)
permits enhancement if “[t]he defendant was a leader in the commission of an offense
involving two (2) or more criminal actors.” The court found at the sentencing hearing

-34-
that the Defendant was a leader in the offenses. The record reflects that the Defendant at
least encouraged, if not coerced, Mrs. Sherrill into committing the offenses and that Mrs.
Sherrill had some level of limited intellectual functioning. The evidence showed that the
offenses were the Defendant’s idea because he wanted the victim to experience sexual
intercourse. The court did not err in enhancing the Defendant’s sentences on the basis of
his leadership in the commission of the offenses.

We likewise reject the Defendant’s argument at the motion for a new trial hearing
that the trial court inappropriately enhanced the sentences based upon the Defendant’s
flight. The record reflects that the Defendant asked the court for mitigating weight based
upon his assistance to the authorities in uncovering an offense carried out by another. See
id. § 40-35-113(9) (2014). The court rejected this mitigating factor, noting that the
Defendant “hid out in Wayne County with his family or others for a significant period of
time between the charges and when he was arrested.” The record does not reflect,
however, that the court applied any enhancement weight to the Defendant’s eluding the
authorities after his indictment.

The record does not support a conclusion that the trial court erred in its application
of the factor for leadership in the commission of the offenses, and the record does not
support that the court accorded enhancement weight based upon the Defendant’s eluding
the authorities after his indictment. We conclude that the court did not abuse its
discretion in its original sentencing determination.

In consideration of the foregoing and the record as a whole, the incest judgments
are affirmed. The rape convictions are affirmed, but the sentences are reversed, and the
case is remanded for entry of amended judgments reflecting ten-year sentences.

_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE

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