State of Tennessee v. Jerry Carter, Sr.

10/15/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 4, 2021 Session

STATE OF TENNESSEE v. JERRY CARTER, SR.

Appeal from the Criminal Court for Shelby County
No. 16-05745 James M. Lammey, Jr., Judge

No. W2020-00478-CCA-R3-CD

The Defendant, Jerry Carter, Sr., appeals from his jury convictions for three counts of rape
of a child, three counts of incest, three counts of soliciting the sexual exploitation of a
minor, and one count of child abuse and his resulting sentence of 168 years, 11 months,
and 29 days. On appeal, the Defendant argues that (1) the trial court erred when it ruled
that the Defendant’s prior 2003 convictions for statutory rape and sexual battery were
relevant and admissible; (2) the trial court’s rulings regarding the defense’s ability to cross-
examine witnesses impermissibly restricted the Defendant’s right to put on a defense; (3)
the trial court erred when it characterized the text messages between the Defendant and
one of the victims as a confession or admission against interest and gave the jury the
corresponding instruction; and (4) the cumulative effect of the errors entitle him to a new
trial. Though we do not find that any of the issues raised by the Defendant entitle him to
relief, we remand this case due to errors with the judgment forms—there was no judgment
form entered for Count 8 (aggravated sexual battery), which was dismissed, and the trial
court’s imposed sentences of twelve years for both Counts 9 and 10, but the judgment
forms incorrectly reflect sentences of eight years. In all other respects, the judgments are
affirmed.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JILL BARTEE AYERS, J., joined.

Ramon Damas (on appeal), and Claiborne H. Ferguson (at trial), Memphis, Tennessee, for
the appellant, Jerry Carter, Sr.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lessie Rainey and
Gavin Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.
 OPINION
FACTUAL BACKGROUND

This case arises from the Defendant’s perpetrating a number of sexual offenses on
his two biological children, D.B.C. and J.C.J.,1 between December 3, 2006, and December
3, 2011. On October 4, 2016, the Shelby County Grand Jury returned an eleven-count
indictment against the Defendant, charging him with Count 1, rape of a child (D.B.C.);
Count 2, rape of a child (J.C.J.); Count 3, rape of a child (D.B.C.); Count 4, incest (D.B.C.);
Count 5, incest (J.C.J.); Count 6, incest (D.B.C.); Count 7, child abuse (J.C.J.); Count 8,
aggravated sexual battery (D.B.C.); Count 9, soliciting the sexual exploitation of a minor
(J.C.J.); Count 10, soliciting the sexual exploitation of a minor (D.B.C.); and Count 11,
soliciting the sexual exploitation of a minor (J.C.J.). See Tenn. Code Ann. §§ 39-13-504,
-13-522, -13-529, -15-302, -15-401. The matter proceeded to a jury trial held on November
18 through November 22, 2019.

A. Pre-Trial. After the jury had been selected but before the trial began, the trial
court held a jury-out hearing regarding events that took place in 2003. The State noted that
in 2003, the Defendant pled guilty to statutory rape and sexual battery based on offenses
committed against “two young women who were friends of the family.” The parties agreed
that based on those convictions, D.B.C. and J.C.J. were interviewed by the Department of
Children’s Services (“DCS”) and made disclosures of inappropriate sexual contact, but that
those disclosures could not be confirmed.

Defense counsel argued that the convictions were inadmissible. However, defense
counsel indicated that he planned on “going into” the forensic interviews of the children
and that he had no “problem if the State [went] into it” because it was “part of the case and
part of the process through which these kids have lived.” Defense counsel continued, “[I]t
also indicates that early on they were making allegations of a sexual nature against [the
Defendant] that to some extent were either unsubstantiated or not followed up on.”

The trial court noted that the victims were interviewed specifically because of the
2003 convictions and stated that “if any of it [was] going to come in, . . . fairness would
say all of it ha[d] to come in” to “tell a complete story how this came about.” It then
conducted an analysis under Tennessee Rules of Evidence 404(b), noting that a hearing
was being held outside the presence of the jury, and finding “clear and convincing evidence
that [the convictions] exist[ed].” It ruled that the convictions were “being offered to tell
the complete story of the case” rather than to show propensity. Finally, along with
emphasizing the distinction between Tennessee Rules of Evidence 403 and 404(b) in

1
It is the policy of this court to refer to minor victims of sexual abuse by their initials.
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balancing probative value against the risk of unfair prejudice, the trial court determined
that the convictions were “highly relevant and probative.”

During the pre-trial discussion, defense counsel mentioned that he sought to
introduce evidence of “allegations of sexual abuse that [were] filed in Arkansas” by another
minor victim against the Defendant but that were ultimately dismissed. According to
defense counsel, E.L.C.,2 the victims’ mother and the Defendant’s ex-wife, paid the
Arkansas victim’s father “to push” that case against the Defendant, and those allegations
were dismissed in 2013 when the victim’s father went to court and stated such. Defense
counsel averred that shortly after that case was dismissed, the victims in this case made the
disclosures that led to the present allegations. Defense counsel indicated that through this
evidence, the defense sought to show that the victims fabricated the present allegations in
an attempt to have the Defendant’s parental rights terminated.

The trial court observed that “it sounded like [the defense was] going to try to say
that the mother [was] the instigator of all this just because of the parental rights [issue]”
and that if that was the case, “[i]t seem[ed]” like the prior 2003 convictions were relevant
because she did not get her children to make up something “when she had ample
opportunity to point to other kids.” The trial court reiterated, “[I]f you’re going to paint
this picture, shouldn’t all of it come in? I mean the fact that he was convicted sounds
relevant to me now.” The State responded, “[I]f we’re going to talk about the cases that
were dismissed and say that mom made up those cases or mom paid people . . . to paint
him in a corner to get custody of her kids . . . , then I do think that the cases that he’s pled
guilty to are relevant.” The trial court agreed, ruling that “if part of the defense [was] that
the mother put them up to it,” it made the 2003 convictions relevant. On the other hand,
the State conceded that “if defense counsel [did not] intend to go into any of it,” then there
was “an extreme limit on how much” evidence regarding prior cases the State could
likewise permissibly develop. The trial court later repeated that accusing the victims’
mother of paying individuals or fabricating allegations of abuse made “it much, much more
probative talking” about the initial convictions.

B. Trial. The victims’ mother explained that J.C.J. was born in 1998, that she
married the Defendant in 1999 while she was pregnant with their second child, and that
subsequently D.B.C. was born that same year. The victims’ mother stated that she and the
victims lived together with the Defendant during that time, though the victims’ mother
explained that she sometimes lived “off and on” with her mother because the victims’
mother had three older children of her own. Thereafter, the victims’ mother moved with
the victims to Texas sometime in 2002 or 2003, and the Defendant did not accompany the
family. Prior to moving, the victims’ mother had initiated divorce proceedings against the

2
In an effort to further protect the identity of the victims, we will refer to their mother by her initials.
-3-
Defendant, which were finalized after her move to Texas. The victims’ mother was
awarded full custody of the victims.

The victims’ mother testified that she and the victims returned to Memphis
“sometime around” 2006 and resided in the Frayser area with her sister and sixteen-year-
old niece. After returning to Memphis, the victims’ mother rekindled her relationship with
the Defendant, and the Defendant eventually moved back in with the family in Frayser.
About two or three months later, the victims’ mother, the Defendant, and the victims then
moved in with a friend of the Defendant’s named April. According to the victims’ mother,
multiple members of April’s family also lived in the residence. After a “couple of months”
at April’s residence, they found a place close by to rent on Pallwood Road, and the victims’
mother, the Defendant, and the victims moved to that location. The four of them resided
at that residence for several years before moving to Collierville. The victims’ mother
confirmed that April’s residence, the Pallwood home, and the Collierville home were all
located in Shelby County. She further provided that the Defendant worked as “a wrecker
driver” during this time and that he did not “keep regular” hours, sometimes working
“during the day and at night.”

In 2011, the family left Collierville and moved to Sweetwater in East Tennessee.
According to the victims’ mother, the Defendant lived with her and the victims in
Sweetwater, but when the couple later separated permanently, the victims’ mother moved
with the victims to Fort Payne, Alabama in September 2013. During the moving period,
the victims each spent some alone time with the Defendant, though she could not recall
where precisely the Defendant was living at that time.

Approximately two months after they moved away from the Defendant to Alabama,
both victims disclosed to the victims’ mother that he had sexually abused them. The
victims’ mother explained that on November 5, 2013, she was in her kitchen when J.C.J.
told her that “[t]here was an incident that had happened where [D.B.C.] had woke up and
her butt was wet and so were her panties and [the Defendant] had blamed it on [J.C.J.] and
[J.C.J.] told [his mother] that it was not him, that it was [the Defendant] because he had
walked in on what he had seen.” According to the victims’ mother, when J.C.J. first started
relaying the story, D.B.C. went to her room to hide. At first, the victims’ mother thought
J.C.J. was lying because she “didn’t want to believe a dad would do that to a kid.” The
victims’ mother summoned D.B.C. back downstairs; however, D.B.C. was too traumatized
to speak, so she wrote on a piece of paper that J.C.J. was in fact telling the truth about the
abuse. The victims’ mother then called the police.

The victims were interviewed at the Child Advocacy Center (“CAC”) in Alabama
about the alleged abuse. After the victims talked with the CAC, the victims’ mother learned
that the abuse had been taking place “over many years[.]” Though the victims’ mother’s
information originally came from the CAC, the victims began to tell her more as time
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passed. The victims’ mother confirmed that according to the information she had received
from the victims, the abuse took place at both the Pallwood house and the home in
Collierville.

Though the victims’ mother never suspected that the victims were being abused, she
recalled a time at the Pallwood house when she was cleaning out the garage, and when she
went inside to use the bathroom, heard D.B.C. screaming. The victims’ mother went to
D.B.C.’s bedroom, pushed open the bedroom door, and saw the Defendant lying on top of
the victim; the victims’ mother could see that the Defendant’s pants were “pulled down
some” and could see his “butt crack.” The victims’ mother told the Defendant to leave the
victim alone and proceeded to the bathroom. She heard the Defendant say something to
the victim, and when she came out of the bathroom, she returned to the victim’s bedroom
still yelling at the Defendant to leave the victim alone. According to the victims’ mother,
the Defendant said “he was just playing with her,” but the victim was screaming, “no, you
weren’t, no, you weren’t.” As she entered the victim’s bedroom, she saw that the
Defendant’s pants were unzipped and that he was not wearing underwear. The Defendant
explained to the victims’ mother that “his zipper was falling down [and that] he was just
messing with [the victim], playing with her and she was getting mad.” When the victims’
mother asked the victim if she was okay, the victim “kind of glanced up at [the Defendant]
when he was leaving and . . . really didn’t say anything” but “just shook her head yeah[.]”

The victims’ mother indicated that the Defendant did not treat the two children
equally, providing as an example that the Defendant would take both children to the store
but only buy D.B.C. something, which would upset J.C.J. When asked if the Defendant
had ever physically abused J.C.J., the victims’ mother said that she had “seen bruises” and
that the Defendant “was rough with [J.C.J.] all the time.” The victims’ mother testified
that she often encouraged the Defendant to have “prayer time” with the victims, that prayer
time occurred most often at bedtime, that the Defendant often prayed more with D.B.C.
than J.C.J., and that when the Defendant prayed with D.B.C., the bedroom door would be
“cracked.”

On cross-examination, the victims’ mother confirmed that she wrote a letter to the
Defendant, and the letter, which was postmarked October 15, 2013, was admitted as an
exhibit by the defense. When asked if the Defendant was in jail at the time she wrote the
letter, she answered affirmatively.3 In the letter, it was mentioned that the victims’ mother
was angry with the Defendant for sending a letter directly to her house because she did not
want her “Christian landlord” to see the county jail’s “red stamp” on it. She indicated that
she was also angry with the Defendant because she “had just had a huge blowup on
Facebook” with the Defendant’s wife and another child of the Defendant’s; according to

3
From context, it appears that the Defendant was in jail for the Arkansas allegations levied by the other
minor victim that were allegedly later recanted by that victim’s father.
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the victims’ mother, this argument centered on allegations that “they had gypped [her]”
and called her “a whore, liar, a manipulator, a psychopath and a lot of other things” due to
the Defendant’s lies about her. The victims’ mother also requested in the letter that the
Defendant relinquish his parental rights and allow her new husband to adopt the victims.
It was further noted in the letter that the Defendant had been in trouble for “cheating” and
“over Ashley and Amanda’s case on [him],” and at the end of the letter, the victims’ mother
wished the Defendant “good luck with [his] case.” The letter was signed by the victims’
mother, her husband, and both victims.

The victims’ mother also agreed that she had seen certain text messages between
the Defendant and D.B.C. that were sent between July and August of 2013. In the course
of the victims’ mother’s cross-examination, photographs of these text messages were
entered into evidence for identification purposes.4 The victims’ mother confirmed that
during the timeframe of the text messages, when D.B.C. would get in trouble, she would
say that she wanted to go live with the Defendant.

In one message, D.B.C. stated that she wanted “to go to court” so that the
Defendant could obtain custody of her because she was “sick of th[a]t b---h of a mother
and th[a]t f--king a--hole of a stepdad and th[a]t dumba-s brother.” In another message,
D.B.C. informed the Defendant, “Momma said she has a permanent parenting plan and the
court can’t overrul[]e it.” D.B.C. later stated that her mother and stepdad “might be
split[t]ing up,” so they were “gonna be on the street.” D.B.C. also told the Defendant that
her mother lied to her often, indicated that she was punished frequently, and that she wanted
her mother declared “unfit.” D.B.C. frequently told the Defendant in the messages that she
loved him.

After D.B.C. told the Defendant that she and her mother had an argument, the
Defendant responded as follows:

I am the worst thing that has ever happened to you[.] I really don’t
feel worthy of anyone[’]s love[.] I absolutely hate the things I have done and
the ways that I have hurt people[.] I am a piece of s--t who doesn’t even
deserve to breathe[.] I don’t wanna talk to anyone[.] I just want to stop
existing! My only wish is that you could erase every memory of me.

The victim replied that she never wanted to forget the Defendant and that she wished he
would “stop doubting and hating” himself.

4
The photographs were later authenticated and admitted into evidence during D.B.C.’s testimony.
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 The victim continued, “[N]o one cares about the past[,] it[’]s the future they care
about[,]” to which the Defendant said,

I don’t deserve your love or your words[. Yo]ur life would b[e]
destroyed if [yo]u allowed me back into it! I believe an eternity of hell is no
match for a heartache of hurting those you love and leaving those you love[.]
I am a destroyer of beautiful souls. I am so happy that I had the privil[e]ge
of being you[r] DADDY!

The victim implored the Defendant to stop saying such things and described the Defendant
as “a perfect daddy” and “the best daddy.” She wished for him to “never stop being the
way” he was, and she asked what had caused him to say such things. The Defendant
answered, “[J]ust wishing I was a better father and could have been better to you and spent
more time with you! I love you angel.” D.B.C. said that the Defendant had been a good
father and that she would get to see him more if they went to court, which was a reason for
him to look forward to the future.

At some point, the victims’ mother confiscated D.B.C.’s phone due to D.B.C.’s
behavior and started exchanging text messages with the Defendant using D.B.C.’s phone.
In the messages she sent to the Defendant, the victims’ mother indicated that she was
having problems with the victim due to the clothes the Defendant had allowed the victim
to wear and the way that he had allowed the victim to act in public. The victims’ mother
informed the Defendant that the victim had an attitude problem with everyone and that the
victim was out of control, for which the victims’ mother blamed the Defendant because he
was “too negative.” When the Defendant asked for more information, the victims’ mother
stated that she was through talking with him and that she was “done w[ith] it all.” The
Defendant protested that he was not the cause of the victim’s negative attitude and that he
did not understand what was taking place. When the Defendant pressed further, the
victims’ mother continued to refuse to talk with him about it. The Defendant said, “I am
not the monster [yo]u make me out to be[.] I have done a lot of bad in my life[,] and I have
hurt you a lot[.] I have asked for forgiveness!” The Defendant asked for a set time to
speak with the victims, noting that he paid for the victims’ cell phones. The Defendant
continued to send messages seeking to speak with the victims, but got no response.
Eventually, D.B.C. got her phone back and texted the Defendant.

After discussing the text messages at trial, the victims’ mother said that she spoke
with the Defendant on a few other occasions, though she was not sure of the last time they
talked. The victims’ mother stated that she and the Defendant last lived together towards
the end of March 2013, though the victims visited the Defendant sometime in the summer
of 2013. The victims’ mother said that she drove one child to Memphis, and then the other
when she picked up the first child, but she could not recall which child visited the
Defendant first. The victims’ mother indicted that her new husband accompanied her on
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these trips; however, while in the car, the children never made disclosures of any kind.
Though the victims’ mother was not legally required to take the victims to see the
Defendant, she still thought it was good for them at this point. According to the victims’
mother, the victims quit speaking with the Defendant altogether shortly after the text
messages were exchanged in July and August of 2013. The victims’ mother further
corroborated that the victims had never to her knowledge made any disclosures to their
respective teachers and that they had routinely been seen by a pediatrician.

The victims’ mother indicated that she and the Defendant had a difficult relationship
during their tenure. According to the victims’ mother, the Defendant had no contact with
the victims while they lived in Texas, and she and the Defendant had discussed “many
times” terminating the Defendant’s parental rights. The victims’ mother verified that her
new husband was an ex-police chief in Hammondville, Alabama and that he wanted to
adopt the victims. According to the victims’ mother, when they sent the October 2013
letter to the incarcerated Defendant asking him to terminate his parental rights, the
Defendant replied with a letter stating no. The victims’ mother acknowledged that she first
spoke with the police about the allegations shortly thereafter in November 2013.

The victims’ mother affirmed that she had written several things down in order for
her to remember them so that she could convey them to the police—some notes were her
own recollection and others were things the victims had told her. After reviewing her notes
to the police, the victims’ mother relayed one incident when she was outside cleaning out
the garage “like [she] always did,” and when she came inside to get something to drink,
she heard the Defendant and J.C.J. yelling at each other. When the victims’ mother went
to see what was going on between the two, she observed the “a baseball bat [come] flying
out of [J.C.J.’s] room,” and the bat hit her before hitting the wall. According to the victims’
mother, the Defendant was on top of J.C.J., and when she asked why, the Defendant said
that J.C.J. was in trouble for refusing to clean his room and that J.C.J. had tried to hit him
with the bat.

Also, in her notes, the victims’ mother made references to finding condoms “all over
the house[,]” specifically, she had found a box of unopened condoms in a cubbyhole space
in D.B.C.’s bedroom. The victims’ mother asked the Defendant about the condoms, but
the Defendant did not provide any insight, claiming no knowledge of them. The victims’
mother also confirmed that she found a used condom wrapper in D.B.C.’s bedroom floor
and that the Defendant told her that it must have belonged to J.C.J. In addition, the victims’
mother located a condom in the toilet after the toilet had clogged and she had to plunge it.
Again, the Defendant said that it probably belonged to J.C.J., but when the victims’ mother
asked J.C.J. about it, he denied it. Once when the Defendant returned from a trip, the
victims’ mother saw the Defendant putting something up in the top of the hallway closet.
When the victims’ mother later went to look, it was a box of condoms. The victims’ mother

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again confronted the Defendant, and he again said that they were J.C.J.’s. The victims’
mother indicated that this cycle of finding condoms in the house occurred at least “six,
seven, eight times,” that she also found them in the Defendant’s car, that the Defendant
never provided her with any explanation for them, and that during this time, neither victim
ever mentioned that the Defendant was sexually abusing them. The victims’ mother agreed
that once the Defendant was incarcerated on these allegations, she and her new husband
never proceeded with his adoption of the victims.

The victims’ mother verified that in approximately 2012, about a year after the
family moved to Sweetwater, she was diagnosed with a “fairly contagious” sexually-
transmitted disease (“STD”), trichomonas. Because she was symptomatic, she went to the
doctor knowing something “wasn’t right.” Because they were sexually active and did not
use condoms, both she and the Defendant were treated for the STD.

On redirect, the victims’ mother testified that for the entire time period from when
they moved back to Tennessee in 2006 until they left for Alabama in 2013, D.B.C. did not
want to be left at home alone with the Defendant. The victims’ mother said that D.B.C.
would often “be very panicky” and would cry at the prospect of being left alone with the
Defendant and that D.B.C. would beg her to stay home with them. The victims’ mother
also said that the Defendant sometimes took the victims with him on “tow truck jobs,”
though he most frequently took D.B.C. because she was allegedly better “at keeping him
awake[.]” In addition, based upon finding the plethora of condoms in the house and her
contracting trichomonas, the victims’ mother believed that the Defendant was cheating on
her.

The State then requested a bench conference. The prosecutor noted that defense
counsel had “asked a whole lot of questions about the fact that the children never told
anybody[,]” though both victims had in fact made disclosures about the Defendant’s
molesting them when they were interviewed by the CAC in Memphis in 2003 and 2004.
The prosecutor sought permission to ask the victims’ mother if “based on a separate
investigation that did not involve [the victims], [she] took [them] to the [CAC] to be
interviewed about whether or not [the Defendant] had ever abused them,” but that the
investigation was unable “to be complete[d].” The prosecutor indicated that the victims’
mother would not be able to testify about the contents of those interviews because she was
not present; however, the State intended to later present the keeper of those records as a
witness to testify about the details of the victims’ disclosures and that the allegations were
classified as “unsubstantiated.” The prosecutor remarked that an unsubstantiated
classification meant that DCS’s requirements for finding the abuse occurred had not been
met, but that it was not a finding that the children were lying or that the abuse did not
happen. After reviewing the details from the case summary investigation report, the trial
court found that the prosecutor could ask the victims’ mother about why she took the

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victims to the CAC within the established parameters because “right now the jury thinks
that these children never told anybody that their dad was abusing them and that’s not true”;
defense counsel stated that he did not have any objection. The prosecutor indicated that
she would later address the court about the substance of the anticipated testimony from the
DCS keeper of records, once that keeper was located.

When testimony resumed, the victims’ mother was asked about the events of 2003
when the victims were first interviewed by the CAC in Memphis. Specifically, the
following colloquy took place:

Q. Okay. Around that time based on an investigation that did not involve
your children but an investigation of [the Defendant], did you take [the
victims] to the [CAC] here in Memphis to be interviewed about possible
abuse?
A. Yes.
....
Q. I know it was a long time ago. Just tell me what you remember about
doing that, about that day when you took them and what happened when you
took them. That’s all.
A. Well something was told to me so I took the kids down there just to make
sure that they were okay.
....
Q. . . . . After you took the children to be interviewed, were you aware of
anything else happening with regard to your children?
A. No.
Q. Then after you moved to Texas.
A. Yes.

On recross-examination, the victims’ mother confirmed that after she returned to
Memphis from Texas, she reestablished her relationship with the Defendant.

Both victims then testified about the sexual abuse they suffered at the hands of the
Defendant. J.C.J. confirmed that they moved to the Pallwood house around 2006 or “the
first part” of 2007. J.C.J. was asked to describe “anything out of the ordinary that
happen[ed] . . . at the Pallwood house.” J.C.J. first recalled an evening when he was playing
video games in his bedroom, and the Defendant called him into the living room. According
to J.C.J., he was about ten or eleven years old and in the fifth or sixth grade, and he
estimated that his sister, D.B.C., was about seven or eight at the time. Once in the living
room, J.C.J. saw the Defendant and D.B.C. sitting on the couch and D.B.C. only wearing
a t-shirt and a pair of panties. J.C.J. also observed a pornographic film playing on the
television, and the Defendant asked him to sit down and watch. After watching the film
for a time, J.C.J. returned to his bedroom to play his video games.
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 Later that evening, J.C.J. was summoned again, and as he left his bedroom, he
noticed a light on in D.B.C.’s room. When J.C.J. entered D.B.C.’s bedroom, he saw her
unclothed lying on the bed and the Defendant standing to the right side of the bed.
According to J.C.J., the Defendant requested that J.C.J. take off his clothes, which he did.
There was a pornographic film playing on the television in which the actors were having
intercourse, and the Defendant instructed J.C.J. to mimic the behavior with D.B.C. that he
saw in the film. J.C.J. said that the Defendant walked out of the room and shut the top half
of D.B.C.’s bedroom door, which was like a barn door, cut horizontally in the middle, and
each section opening and closing independently. J.C.J. said that he saw the Defendant
“crouched below the top half” of the door watching them while J.C.J. inserted his penis
into D.B.C.’s vagina once and then said, “I don’t know what I’m doing.” J.C.J. left the
room, and as he was exiting, noticed that the Defendant was no longer present.

Shortly thereafter, the Defendant gave J.C.J. pornographic magazines and “a pocket
vagina,” which was for male masturbation. According to J.C.J., the Defendant told him
that at his age, he “should know how to use” the pocket vagina.

J.C.J. then described another incident where he had sexual intercourse with his
sister. J.C.J. was again playing video games in his bedroom when he heard a noise in the
living room. When J.C.J. went to the living room, he saw a similar scene as before—
D.B.C. sitting on the couch with the Defendant and a pornographic film playing on the
television. J.C.J. was once again asked to sit down and watch. According to J.C.J., the
Defendant instructed that he and D.B.C. “pick out a scene” and emulate it. They picked
an “oral scene,” and J.C.J. put his penis into D.B.C.’s mouth.

J.C.J. described that later that evening, he heard D.B.C. giggling in the living room.
J.C.J. went to the living room where he saw the Defendant and D.B.C. watching a movie.
J.C.J. was then “coached” by the Defendant and put his mouth and tongue on D.B.C.’s
vagina. According to J.C.J., the Defendant told him where to put his tongue “and how to
wiggle it.” Also, that evening, they were sitting on the couch watching a regular movie
when the Defendant went to the restroom and “returned with a black movie box.” The
Defendant played a pornographic film depicting an “anal scene.” J.C.J. was told by the
Defendant “to act it out” with D.B.C., and J.C.J. inserted his penis into D.B.C.’s “butt.”

J.C.J. confirmed that the family moved to Collierville around 2011. While in
Collierville, the Defendant would summon J.C.J. to D.B.C.’s bedroom. According to
J.C.J., though D.B.C. would appear to be sleeping, the Defendant would tell J.C.J. “to play
out the same things that ha[d] happened before.” J.C.J. explained that by this, he meant
that he “would stick [his] penis into [D.B.C.’s] vagina and butt.” On these occasions, the
Defendant would be standing “right outside the door” instructing J.C.J. on what to do, how
to do it, and where to put it. J.C.J. estimated that he was about twelve years old at this
time.
- 11 -
 J.C.J. testified that he wanted to tell someone about the abuse but that the Defendant
would threaten him, telling him that he “would go somewhere” to have his private part
“sewed up,” that he would be “locked up” because he was “just as much a part of it as” the
Defendant, and that he “would be removed,” which J.C.J. thought meant that he would die.
J.C.J. said that he believed the Defendant and was afraid. Once, while living on Pallwood,
J.C.J. told the Defendant that he would tell anyways, and the Defendant “got irate and
picked [him] up off [his] feet and threw [him] into a wall.” J.C.J. affirmed that this hurt.
On another occasion, J.C.J. also indicated that he would tell someone, and the Defendant
picked him up and threw him, “except this time [J.C.J.] was held down and told that [he]
was not allowed to tell.” Later, while living in Collierville, J.C.J. again informed the
Defendant that he was going to tell. This time, the Defendant became irate, and J.C.J. ran
to his room and picked up his baseball bat. According to J.C.J., the Defendant immediately
took the bat from him and threw it down the hall. J.C.J. confirmed that his mother was
home at the time.

J.C.J. testified that they moved away from Memphis sometime around 2011 or 2012
and that he finally told his mother about the abuse in November 2013. J.C.J. said that he
was able to then tell his mother because he knew the Defendant was in jail, which made
him feel safer and less afraid. J.C.J. estimated that he was about fourteen or fifteen when
he told his mother. J.C.J. confirmed that he was later interviewed by the CAC in 2013 and
2014 about the allegations. According to J.C.J., incidents like the ones he described
occurred at the houses on Pallwood and in Collierville “too many [times] to count,”
occurring “hundreds” of times, but he could not remember the details of every single event.

On cross-examination, J.C.J. said that the Defendant told them that he had taken a
picture of them while engaging in sex. In addition, J.C.J. agreed that he had been
interviewed by the CAC between four to six times and that during the initial interviews, he
did not disclose his sexual behavior with D.B.C. In addition, J.C.J. agreed that he had
never told anyone at his school or his medical doctor about the abuse.

On redirect, J.C.J. said that the night they were told about the photograph, “it was
also used against them”; however, this incident occurred in Sweetwater. J.C.J. also talked
about other incidents of physical abuse besides the two times he was thrown against the
wall and the one time he was held down; J.C.J. indicated that there were “a lot” of instances
of being thrown, pushed, shoved, and threatened. J.C.J. also recalled that in 2003, he was
interviewed by the CAC in Memphis.

D.B.C. testified that the abuse initially began at April’s home, but she did not
remember any specific instances other than a drawing she drew of the Defendant’s penis.
D.B.C. explained, “Normally everything that happened to me, I draw it.”

- 12 -
 D.B.C. testified that it was at the Pallwood house that she could vividly remember
the first instances of sexual abuse by the Defendant. According to D.B.C., she was around
seven years old when they moved to the Pallwood house, and the family lived there until
she was in the fourth grade. She described her bedroom and her belongings and specifically
mentioned that the door to her room was a “halfway door,” both the top and bottom opening
separately.

First, D.B.C. described an incident at the Pallwood house where the Defendant
instructed her to go to her room and sit on her knees. The Defendant then came in, put a
blindfold over her eyes, and said that “he was putting a dildo in [her] mouth.” Though she
saw a black “dildo” in his hand, D.B.C. believed that the Defendant instead stuck his penis
in her mouth because “it was too warm and it was too soft.” D.B.C. said that “it was
familiar” given what had happened to her at April’s house, though she could not recall any
of those specifics. D.B.C. said that when the Defendant heard J.C.J. make a noise in the
house, the Defendant stopped what he was doing “to go check on that.” While the
Defendant was away from the bedroom, D.B.C. heard the Defendant turn on the sink.
When the Defendant returned to her room, he praised D.B.C. for doing a good job “because
of how wet it was.”

When asked what other kinds of things the Defendant did to her while they lived at
the Pallwood house, she replied, “He was doing oral on me.” She explained that the
Defendant would place his mouth on her vagina after instructing her to remove her pants
and underwear. D.B.C. said that this type of thing happened both in her bedroom and the
Defendant’s. She further testified that the Defendant also made her perform oral sex on
him and that she would put his penis in her mouth. Eventually, the Defendant started
having anal intercourse with D.B.C., though she could not recall for certain if this began in
the Pallwood house or after in Collierville.

D.B.C. confirmed that J.C.J. was also involved in the sexual acts. She indicated that
while in her bedroom, the Defendant told the nine- or ten-year-old J.C.J. to perform oral
sex on her. According to D.B.C., J.C.J. first, under the Defendant’s guidance, tried to
engaged in vaginal intercourse with her, but when she jerked away because it was hurting
her, J.C.J. stopped. She recalled that the Defendant was instructing J.C.J. the whole time
he performed oral sex on her, telling J.C.J. “to lick [her] and to pull apart [her] lips.” D.B.C.
testified that incidents of this type that took place at the Pallwood house were too numerous
to count and that they continued once they moved to Collierville.

She remembered that while living in the Pallwood house, the Defendant played
pornographic films in both the Defendant’s bedroom and the living room. On one
occasion, the Defendant forced her to watch it with him in the living room. The Defendant
said to her that he wanted her to learn how to do the acts in the film. D.B.C. recalled that

- 13 -
on another occasion, she and J.C.J. where in the Defendant’s bedroom with the Defendant
watching a pornographic film.

D.B.C. testified that the family had prayer time before bed, that the Defendant was
present with her during prayer time, and that he would anally rape her during that time after
they moved to the Collierville home. D.B.C. thought she was in the fifth grade when they
moved to Collierville.

On one occasion at the Collierville residence, J.C.J. was performing oral sex on
D.B.C. while the Defendant stood behind him watching. According to D.B.C., the
Defendant instructed J.C.J. to put his tongue deeper inside her vagina. Also, on a different
occasion at the Collierville home, the Defendant instructed D.B.C. to do a back bend while
holding the kitchen doorframe, and she performed oral sex on him. At some point, the
Defendant also performed oral sex on D.B.C.

Additionally, while living in Memphis at the Pallwood house and in Collierville,
there were times when the Defendant would take D.B.C. with him on his towing trips.
According to D.B.C., during these trips, the Defendant would “anally rape [her] and make
[her] do oral on him in the back where the bed” was located. D.B.C. testified that the
Defendant once said to her that she “wasn’t old enough,” but that when she got older, he
would “teach [her] how to ride.” She said that the Defendant abused her almost every day.

D.B.C. confirmed that when she was around eleven or twelve years old, the family
moved to Sweetwater and that sometime in the summer of 2013, they moved to Alabama.
D.B.C. testified that the Defendant had stopped sexually abusing her once the Defendant’s
relationship with the victims’ mother ended. D.B.C. also confirmed that while the victims’
mother was in the process of moving the family to Alabama, D.B.C. and J.C.J. went to stay
with the Defendant for a month or so; D.B.C. said that she went alone first and that J.C.J.
came later. Then, the children returned to Alabama and stayed with their mother.

Around that time, the Defendant purchased D.B.C. a cell phone, so they could
communicate. D.B.C. affirmed that she exchanged multiple text messages with the
Defendant during that time period expressing her desire to live with the Defendant. When
asked about the Defendant’s text messages wherein he said such things like he was “the
worst thing” that had ever happened to D.B.C., that he was “a piece of s--t” for the things
he had done, that he was a “destroyer of beautiful souls,” and that he did not deserve to
breathe, D.B.C. believed that the Defendant was referring to the sexual things that he had
done to her and J.C.J.

D.B.C. did not recall ever being interviewed by the CAC in Memphis in 2003.
D.B.C. recalled the evening J.C.J. first told their mother about the sexual abuse in
November 2013. D.B.C. said that she wrote a note to her mother that evening, saying that
- 14 -
the Defendant had “been raping [her] since [they] were at April’s.” She remembered being
interviewed multiple times by the CAC following their disclosures. D.B.C. confirmed that
she did not initially disclose many of the details of the abuse in her first interviews,
explaining that she had trust issues.

When asked about physical abuse, D.B.C. said that the Defendant used “a studded
belt” and would hit them “from [their] back down.” The Defendant showed D.B.C. the
“bruises and whelps and everything that he put on” J.C.J. D.B.C. also testified that the
Defendant threatened her not to tell anyone. According to D.B.C., the Defendant told her
that if she told anyone about what happened, she would “go to jail and . . . be raped” and
that they would kill her.

On cross-examination, D.B.C. was questioned in depth about the text messages she
exchanged with the Defendant in July and August of 2013 and about what had changed by
the time the family sent the letter to the Defendant in October 2013 seeking for the
Defendant to terminate his parental rights. D.B.C. acknowledged that in her initial
interviews with the CAC in 2013, she did not disclose that J.C.J. was also abusing her. She
confirmed that during an interview, she was asked about J.C.J.’s ever being touched and
that she did not mention anything “other than [his] being thrown.” D.B.C. also stated that
the Defendant never wore condoms while he sexually abused her, and she agreed that she
had never been diagnosed with any STD.

D.B.C. was then asked about allegations of sexual abuse she made against a
neighbor, Charles Brewer, in 2009. While being interviewed about those allegations, she
was asked if anyone else ever touched her inappropriately in a sexual way, and she said no.
Mr. Brewer pled guilty to the allegations. In addition, D.B.C. agreed that she never told
anyone at her school about the abuse.

The State called Tanisha Harper, a DCS investigator for eleven years, who testified
that she had reviewed “some records involving an allegation” against the Defendant back
in 2002 or 2003 and confirmed that three-year-old D.B.C. and five-year-old J.C.J. were
forensically interviewed during the investigation of that allegation. Ms. Harper was asked
to read from the records, and the Defendant lodged no objection. Ms. Harper, reading from
the records, informed that D.B.C. reported that “Jerry told her to lick his weeny,” but that
she said “she didn’t bite it.” As for J.C.J., he reported that the Defendant would have sex
with D.B.C.; that when he walked into a room, the Defendant was rubbing D.B.C.’s bottom
with a belt; that D.B.C. “told him that Jerry put his winky in her mouth”; and that the
Defendant put “his winky on his back.” Ms. Harper continued testifying that J.C.J. said
that the Defendant would punch him the face, that he actually saw the Defendant pull down
D.B.C.’s pants and “put his winky into [D.B.C.’s] mouth,” and that someone named
“Mike” would have sex with D.B.C. and put “his winky” in her mouth. Ms. Harper
elaborated that the children’s allegations were labeled as Allegation Unfounded Perpetrator
- 15 -
Unfounded (“AUPU”), explaining that label was given when there was “no solid evidence”
because the child could not provide specific details to support the case, though it could be
because the child was too young to give specific evidence, and it did not mean the abuse
did not happen.

On cross-examination, Ms. Harper referenced another page of the case summary,
wherein it was stated that the sexually acting out behavior between the two children had
stopped since they received counseling, that the victims’ mother was taking parenting
classes, that there were no findings of abuse in the medical examinations, and that there
was no disclosure by either child. Ms. Harper confirmed that after both a medical exam
and specialized forensic interview, there was no medical or forensic evidence of sexual
assault. Ms. Harper was then asked about another page from the case summary, wherein
it noted similar information that the children had been to three counseling sessions, that the
victims’ mother reported that the sexually acting out behavior between the children had
tremendously decreased, that the victims’ mother had set better expectations concerning
supervision, and that the children were no longer allowed to bathe together.

The State then requested a bench conference. The State indicated that it was “happy
to give [defense counsel] some leeway . . . , but the purpose of entering these records [was]
specifically to rebut the argument that the children never told anybody, not to go into the
entire substance of this DCS investigation.” The State also further noted that the
substantive allegation regarding the Defendant’s actions with a twelve-year-old neighbor
led to the DCS investigation into the children’s behavior and culminated in the Defendant’s
2003 convictions for statutory rape and sexual battery. As noted in the case summary, the
victims’ mother reported that the Defendant had oral sex with the twelve-year-old girl in
the presence of D.B.C. and J.C.J.; that D.B.C. and J.C.J. had been acting out sexually,
including touching each other’s private parts; and that J.C.J. had been seen by a doctor for
having a bite mark on his penis. It was also noted that the victims’ mother had an order of
protection against the Defendant.

Defense counsel argued that the State had “opened the door” to delving into further
specifics of the forensic interviews when it asked questions regarding the children’s
statements made therein, that there was information in the case summary that specifically
rebutted portions of what the State had Ms. Harper read into evidence, and that the defense
had a fundamental right of fairness to rebut the information through cross-examination.
The trial court indicated that those facts had been sufficiently rebutted by the fact that Ms.
Harper stated the investigation into the children’s allegations was unfounded. The State
responded that if the defense intended to “talk about the bad things about this case,” then
it should be allowed “to talk about the reason this case existed in the first place.”

Defense counsel asserted that the specifics of the prior disclosures were important
because they showed the reason why the children were interviewed in 2003, that being
- 16 -
“because [D.B.C.] bit [J.C.J.] on the penis,” which “had nothing to do with [the
Defendant].” The trial court, however, noted that defense counsel was “just reading half
of it,” to which the State submitted that if defense counsel chose to read that half of the
record, then it should be allowed to read the other half. The trial court advised defense
counsel that he was going down a “dangerous” path. Defense counsel said that he did not
think “that” was relevant and had to be excluded. The trial court then excused the jury,
and further discussion ensued.

The trial court first observed that it had not been previously provided with a copy
of the case summary investigation report. The trial court reviewed the sequence of events
as relayed in the report regarding why the victims’ mother brought the children to the CAC
in 2003 to be interviewed and concluded,

[I]t was a logical chronology here . . . that the statutory rape and the sexual
battery came first. There’s a void in this thing. How do you explain to the
jury why they brought the children there without lying to them, without
telling them the truth of the whole story?

The whole story is that they were brought there because [of] sexual
activity with other people [for] which he was convicted. That was the reason
why she brought the children there.

The trial court observed that the reason why the State was allowed to read in the previous
portions was “because it was alleged they never told anyone before. And that’s just not
true. They did tell someone before. They told the people at the CAC. So that made that
relevant.” The trial court also noted that the jury received information that the allegations
were unfounded and were provided with an explanation that the “children were so young,
they were bouncing all over the place.” In addition, the trial court remarked that the
information was not offered by the State for the truth of the matter asserted but to establish
that the children had told someone before about the abuse.

Defense counsel said that the defense had a right to rebut the State’s evidence with
information about “where the investigation began,” that being that “there was a dispatch to
the listed locations of a possible child abuse from a LeBonheur social worker of the
complaint the four-year-old son was at the hospital with a bite mark on his penis inflicted
by the two-and-a-half-year-old sister,” that D.B.C. said that she did not bite her brother,
and that there was some question about whether D.B.C. was referring to the Defendant or
her brother. Defense counsel asserted that he should be able to challenge “the weight of
that information” with further specific details from the report. The State replied that “to
say that the only reason the children came in was because of this bite mark [was] also not
accurate.” Defense counsel indicated that he would refer to it as “some other case not

- 17 -
related to this one, that’s why [they] went to the CAC,” as they had done similarly already
several times during the trial.

The trial court noted that the report also included pertinent information that the
children had seen then the Defendant engaged in this behavior with the twelve-year-old
girl, which was their reason for acting out sexually. The trial court informed defense
counsel that “obviously you have a right to cross-examine,” but it warned him that “it’s a
dangerous place to go” because it would omit the “whole story” and be misleading to the
jury. Defense counsel averred that he had “basic fundamental right” to rebut the State’s
evidence without the State putting on evidence of the Defendant’s 2003 convictions.

Subsequently, defense counsel was asked to provide specifics of his requested
testimony. The following colloquy then took place:

[DEFENSE COUNSEL]: . . . I want to elicit the fact that [J.C.J.] who
I guess at this point must be four went to a hospital for a bite mark on his
penis that was inflicted by the two-and-a-half-year-old sister [D.B.C.]

. . . . [T]here’s her statement and his statement. Her statement is that
Jerry told her to lick his winky but didn’t go into details. She says I didn’t
bite it though. Why would she be saying bite it though? Why would she
make that distinction unless she had been accused of biting it? She was
accused of biting it. She’s the one that bit it.

THE COURT: That’s it?

[DEFENSE COUNSEL]: . . . [F]urther in the same paragraph it says
that the younger Jerry saw a different Jerry put his winky her mouth.

THE COURT: That’s already been read into the record.

....

[DEFENSE COUNSEL]: And I should be able to ask questions about
that without somehow opening this door that he’s this convicted sex offender
because the State elicited it and I can ask about the incredible nature of the
statements or how it was put together, what he said. I don’t have anything
else externally that I get to ask. I get to read it and ask questions about it,
make sure it’s fully made for the record.

The trial court later stated that the “problem” here, though, was that the report also
provided information about how the children learned this behavior, which was “the whole

- 18 -
truth.” Defense counsel replied, “Yes. We don’t always rely on the truth. We rely upon
fundamental fairness, due process and rules of evidence.”

The State then inquired that if defense counsel went “down that road,” would it be
allowed to ask Ms. Harper about DCS policy:

that a child who is found to be committing a sex act against another child is
then classified by DCS as a victim and an investigation ensues to look and
see who has taught that child the behavior. Whether it’s pornography or
someone abusing them or whatever. But the point is that [D.B.C.] in this
case even if she’s the one that bit [J.C.J.’s] penis is then classified by DCS
as a victim and an investigation of her case would start at that point.

The State continued that this testimony from Ms. Harper would “actually give[] credit” to
the information in the report that the children saw the Defendant with the twelve-year-old
girl. The trial court agreed that if the defense chose to pursue that line of questioning, then
the State could establish that DCS protocol generally would be to engage in an
investigation to find out why a child might be acting out.

Ultimately, the trial court concluded that the State was prohibited from “get[ting]
into the fact there’s an allegation” involving this twelve-year-old girl and to “stay away
from the prior convictions” and “away from having sex with other people, that they learned
it from their father.” However, the court further determined that the State would be allowed
to ask Ms. Harper if the children had advised that they learned this behavior from the
Defendant and about DCS policy as to how they would classify the victims and the
assumption that it was a learned behavior. At this juncture, defense counsel lodged an
objection. However, the trial court opined that it was “still a fair assessment of the facts
that [were] alleged in this document rather than read[ing] the whole thing” and “mak[ing]
the record a little bit cleaner” by avoiding evidence of the Defendant’s prior convictions
and to “[s]tay away from [the Defendant’s] having sex with other people.” The trial court
stated that after reading the report, defense counsel was “right” that it was “fair to go into
the fact that” D.B.C. may have been describing what her brother was doing to her instead
of the Defendant. The trial court also stated that leading questions would be permitted to
avoid the entry of inadmissible evidence. The trial court noted that it would have liked to
have seen the case summary investigation report sooner in order to better understand the
issues and that it likely would not have argued as much with defense counsel if it had.

Cross-examination of Ms. Harper resumed. Ms. Harper confirmed that D.B.C. “was
unable to give a statement because she was all over the place” and that there was confusion
about whether D.B.C. was referring to the Defendant or brother. In addition, Ms. Harper
agreed that J.C.J. was asked if the events really happened or if someone told him to say it
happened and that J.C.J. replied that the Defendant told him to tell them it happened. Ms.
- 19 -
Harper further agreed that J.C.J. said Mike was having sex with D.B.C. and that mom
kicked Mike out of the house. Ms. Harper indicated that the DCS investigation did not end
there, but acknowledged that there was never any prosecution based upon the children’s
allegations and that the investigation ended with findings of “perpetrator unfounded” and
“allegations unfounded.”

After Ms. Harper was excused and the jury left the courtroom, the trial court asked
defense counsel, “I see . . . you decided to stay away from that?” Defense counsel
responded, “I had to, Judge. I didn’t see any way around the ruling that would allow my
client to have a fair trial.” The trial court remarked, “Well we have different perspectives
I suppose.” The DCS report was marked for identification purposes.

Karon Sullivan testified that she worked at a CAC in Alabama and that she had been
a forensic interviewer since 2007. She confirmed that beginning in late 2013 through 2014,
she had conducted forensic interviews with J.C.J. and D.B.C. involving these allegations.
She relayed the details of the five interviews she had with J.C.J. and the seven interviews
she had with D.B.C. According to Ms. Sullivan, the initial interviews were often spent
building a rapport with the children. She did not find surprising that the victims took
several interviews before they were willing to tell her about the alleged abuse they suffered
at the hands of the Defendant. Based upon her training, Ms. Sullivan noticed several factors
that weighed in favor of the victims’ credibility regarding their disclosures. On cross-
examination, Ms. Sullivan confirmed that in her report, it was not noted that D.B.C. never
mentioned a back bend or a blindfold.

The State rested, and the defense called April Vaughn to testify. Ms. Vaughn
recalled that the Carter family moved into her home in 2007 shortly after the birth of her
son. She specifically remembered having to adjust to living life with a newborn during
this time, having to feed the child every two hours, and having to stay mostly between the
living room and kitchen. Ms. Vaughn testified that her husband and the Defendant both
worked during the day, although the Defendant would also work at night sometimes and
be gone for longer periods when driving his tow truck on “long hauls.” On the other hand,
the victims’ mother and Ms. Vaughn were both home all day with Ms. Vaughn’s son until
J.C.J. and D.B.C. got home from school. Ms. Vaughn stated that she never saw anything
that made her believe the children were being sexually abused.

According to Ms. Vaughn, the Carter family stayed with her maybe six months or
less before they moved into their new home on Pallwood. Ms. Vaughn said that she was
familiar with the interior of the Pallwood house because she would visit the Carters to play
a video game called Guitar Hero and because her mother moved into the Pallwood house
after the Carters moved out. Ms. Vaughn testified that D.B.C.’s bedroom door at the
Pallwood house was “a single solid core door” and not a split door.

- 20 -
 Steven Carter, the Defendant’s first cousin, testified that he stayed with the Carters
at the Pallwood residence about three or four days a week for about a year in 2007 to 2008.
He stated that he never saw any behavior that led him to believe the children were being
physically or sexually abused. He opined that D.B.C. was considered a “daddy’s girl” and
was favored by the Defendant. He also testified that the victims’ mother was a “homebody”
and did not leave the house often.

The State dismissed Count 8 because the victims testified that the events underlying
that count occurred in Sweetwater, which was in a different county.5 The remaining ten
counts, which were not renumbered, were submitted to the jury. The jury found the
Defendant guilty as charged on all ten counts.

C. Post-Trial. A sentencing hearing took place on January 29, 2020. The court
found that three enhancement factors and no mitigating factors were applicable, and it
imposed sentences of forty years for Counts 1 through 3, six years for Counts 4 through 6,
eleven months and twenty-nine days for Count 7, twelve years for Counts 9 and 10,6 and
six years for Count 11. After finding that the Defendant had an extensive criminal record
and that he had been convicted of two or more statutory offenses involving sexual abuse
of a minor and noting the aggravating circumstances, the trial court ordered each sentence
to run consecutively for an effective sentence of 168 years, 11 months, and 29 days.

Following the denial of the Defendant’s timely-filed motion for new trial, he filed a
timely notice of appeal. The case is now before us for our review.

ANALYSIS

On appeal, the Defendant argues that (1) the trial court erred when it ruled that the
Defendant’s prior convictions for statutory rape and sexual battery were relevant and
admissible; (2) the trial court’s rulings regarding the defense’s ability to cross-examine
witnesses impermissibly restricted the Defendant’s right to put on a defense; (3) the trial
court erred when it characterized the text messages between the Defendant and D.B.C. as
a confession or admission against interest and gave the jury the corresponding instruction;
and (4) the cumulative effect of the errors entitle him to a new trial. The State responds
that the Defendant’s claims do not entitle him to relief. We will address each in turn.

5
From context, it appears that Count 8 involved the events surrounding the photograph. Though Count 8
was dismissed, no judgment form was entered reflecting such.
6
At the sentencing hearing, the court indicated it was imposing twelve-year sentences for Counts 9 and 10,
but the judgment forms indicate eight-year sentences.
- 21 -
 I. Admissibility of Prior Convictions

The Defendant argues that the trial court committed reversible error when it ruled
that the Defendant’s 2003 prior convictions for statutory rape and sexual battery involving
an underage victim were relevant and admissible, noting that this trial involved similar
allegations of sexual abuse by child victims. Specifically, the Defendant submits that the
trial court abused its discretion by ruling that the Defendant’s prior convictions were
admissible even though their prejudicial effect outweighed the probative value, contending
that the trial court seemed to misunderstand the Rule 404(b) standard.

Though the Defendant goes to great lengths in his argument regarding this issue, we
agree with the State’s pertinent observation that “the challenged conviction was never
introduced at trial, in which case any alleged error was certainly harmless.” Regardless of
the propriety of any ruling, the convictions were never admitted into evidence. The
allegations were only referred to obliquely, using the precise remedy the Defendant
fashioned. The Defendant is not entitled to relief.

II. Opening the Door

The crux of the Defendant’s argument regarding the admissibility of the 2003
convictions lies with the trial court’s ruling regarding the cross-examination of witnesses
and that if the defense delved into certain areas, then the convictions would become
admissible. First, according to the Defendant, the trial court incorrectly ruled that if the
defense cross-examined the victims’ mother regarding payments she allegedly made to a
father of a child to accuse the Defendant of sexual abuse, then the convictions were
admissible. The Defendant intended to argue that the victims’ mother paid the father to
make the allegations in order to have the Defendant’s parental rights terminated and that
when those allegations were discovered to be false, the victims’ mother encouraged her
children to fabricate the present allegations. The Defendant observes that these separate
allegations regarding the fabricated abuse had nothing to do with why the children were
taken for the forensic interviews in 2003 and admission of the 2003 convictions was not
needed to “complete the story.”

Second, the Defendant refers to the trial court’s ruling regarding the cross-
examination of Ms. Harper that any cross-examination of Ms. Harper regarding further
specifics of the case summary investigation report would open the door to testimony from
Ms. Harper that the children learned the behavior from the Defendant. The Defendant
submits that the trial court, through this ruling, imposed was an improper restriction on the
Defendant’s fundamental right to present a defense and cross-examine witnesses. The
Defendant acknowledges that the evidence solicited by the State during its direct
examination of Ms. Harper was admissible to rebut the defense’s proof that the victims had
never disclosed the abuse to anyone.
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 The Defendant submits, however, that he should have been allowed to establish
through Ms. Harper’s cross-examination that the victims were taken to be forensically
interviewed because they had been acting out sexual behavior and that D.B.C. bit J.C.J.’s
penis during one of those acts. The Defendant contends that without this information, the
jury was “left with an incredible story of the adults in charge failing” the victims. The
Defendant contends that the State could have established, in response to its additional
questioning of Ms. Harper, that the children were taken to the CAC “for some other case
not related to this one” and that admission of the 2003 convictions was unnecessary. The
Defendant further faults the trial court’s ruling that if the defense went into specifics of the
allegations, then the State would be allowed to elicit testimony from Ms. Harper that the
children learned the abuse from the Defendant. The Defendant surmises that “[t]he defense
was left without recourse because an explanation could not be offered for why the
children’s testimony was determined to be unfounded without allowing [the Defendant’s]
conviction to be admitted albeit tangentially.”

The State first notes that the Defendant was not prevented from cross-examining
either witness, but rather, the trial court provided proactive warnings. Then, the State
submits that the mere fact that the Defendant strategically chose not to ask questions after
being proactively warned of the consequences by the trial court does not amount to the
denial of his right to present a defense. Relative to the potential questioning of the victims’
mother about an alleged payment made in exchange for fabricating a claim, the States
maintains that the trial court merely informed the Defendant that such questioning would
affect the balancing test on whether the Defendant’s prior convictions were admissible.
Likewise, relative to Ms. Harper’s cross-examination regarding the Defendant’s inquiry
into the specific disclosures made by the victims during the 2003 interview, the trial court
explicitly stated that “obviously you have a right to cross-examine” and again only warned
that such questioning would open the door for the State to present further evidence. The
State surmises that the Defendant was never stopped from cross-examining a witness and
notes that the Defendant has failed to cite any authority establishing that being forewarned
of potential consequences, and reacting accordingly, rises to the level of a constitutional
violation. We agree with the State that the Defendant was not precluded from cross-
examining the witnesses and that the mere fact the defense strategically chose not to ask
questions after being proactively warned about the consequences by the trial court does not
amount to the denial of his right to present a defense.

Evidence that is not admissible may be admitted if the defendant “opens the door”
by putting the issue into controversy. State v. Gomez, 367 S.W.3d 237, 246 (Tenn. 2012)
(concluding that, “[e]ven if evidence is inadmissible, a party may ‘open the door’ to
admission of that evidence”). A party commonly opens the door “by raising the subject of
that evidence at trial.” Id. Our supreme court has explained, “[w]hen a party raises a
subject at trial, the party ‘expand[s] the realm of relevance,’ and the opposing party may

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be permitted to present evidence on that subject.” Id. (quoting 21 Charles Alan Wright et
al., Federal Practice & Procedure Evidence § 5039.1 (2d ed. 1987)). Our supreme court
has recently emphasized this doctrine. State v. Vance, 596 S.W.3d 229, 250 (Tenn. 2020.)

Although raising a subject at trial is one manner of opening the door to otherwise
inadmissible evidence, the concept of “opening the door” is “notoriously imprecise.”
Gomez, 367 S.W.3d at 246 (quoting 21 Charles Alan Wright et al., Federal Practice &
Procedure Evidence § 5039)). In addition,

[a]lthough the doctrine arises from the common law tradition of evidence, cf.
Roger C. Park et al., Evidence Law § 1.11 (3d ed. 2011) (describing “curative
admissibility” as a common law doctrine), our Rules of Evidence contain
numerous examples by which otherwise inadmissible evidence may become
admissible as a result of the action of a party in the case.

Id. For example, if evidence of prior bad acts of a defendant is inadmissible, the defendant
may open the door to admission of that evidence by putting his character at issue. Id.
(citing Tenn. R. Evid. 404(a)(1), (2); see also Tenn. R. Evid. 405(a)). A party may also
“open the door” to evidence of a witness’s truthful character by attacking the reputation of
a witness for truthfulness. Id. (citing Tenn. R. Evid. 608(a)). In short, “opening the door”
is an equitable principle that permits a party to respond to an act of another party by
introducing otherwise inadmissible evidence. Id.

Relative to the victims’ mother, the Defendant sought to introduce evidence that the
victims’ mother paid the Arkansas victim’s father to make false allegations of sexual abuse
against the Defendant in an effort to have the Defendant’s parental rights terminated.
Apparently, the Defendant sought to cross-examine the victims’ mother about this
information, as well as presenting another witness, inferentially the Arkansas victim’s
father, to testify to such. This evidence would have placed at issue whether other sufficient
information existed that would effectuate termination of the Defendant’s parental rights
and whether the victims’ mother engaged in a pattern of false allegations against the
Defendant solely for the purpose of terminating the Defendant’s parental rights.
Accordingly, the door would have been opened for the State to present evidence of the
Defendant’s 2003 convictions in order to dispel the defense’s suggestion that no other
evidence existed sufficient for termination of the Defendant’s parental rights and that the
victims’ mother consistently made false allegations, including getting her children to make
the present claims of sexual abuse, solely in an effort to have the Defendant’s parental
rights terminated.

Tennessee Rule of Evidence 404(b) generally provides that evidence of other bad
acts is irrelevant and, therefore, inadmissible. However, Rule 404(b) also provides that
evidence of other bad acts may be admissible for other purposes, such as “‘to show identity,
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guilty knowledge, intent, motive, to rebut a defense of mistake or accident, or to establish
some other relevant issue.’” State v. Moore, 6 S.W.3d 235, 239 n.5 (Tenn. 1999) (quoting
State v. Hallock, 875 S.W.2d 285, 292 (Tenn. Crim. App. 1993)). Extraneous offense
evidence may be admissible for other purposes besides character conformity. Rebuttal of
a defensive theory is one of these “other purposes.” In addition, before a trial court may
permit evidence of a prior crime, wrong, or act, the following procedures must be met:

(1) The court upon request must hold a hearing outside the jury’s
presence;
(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state on the
record the material issue, the ruling and the reasons for admitting the
evidence;
(3) The court must find proof of the other crime, wrong, or act to be
clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Here, the trial court did not allow the evidence for propensity purposes but to rebut
any allegations of recent fabrication. See, e.g., United States v. Finch, 78 M.J. 781, 790-
92 (A. Ct. Crim. App. 2019) (holding that the defense’s cross-examination of the victim
opened the door, in a prosecution for one specification of violating a lawful general
regulation, one specification of sexual abuse of a child, and three specifications of rape of
a child under the age of twelve, for the Government to introduce prior consistent statements
to rebut the charge of recent fabrication); Banks v. State, 494 S.W.3d 883, 892-93 (Tex.
Ct. App. 2016) (determining that the trial court did not abuse its discretion in finding that
the defendant opened door to evidence of a prior conviction for sexual abuse in order to
rebut the defendant’s theory that the child had fabricated the accusation). The trial court
also complied with the procedural requirements of rule 404(b).

Relative to Ms. Harper, though the trial court’s ruling evolved over time, the trial
court ultimately concluded that the defense could ask Ms. Harper on cross-examination
that the victims were taken to be forensically interviewed because they had been acting out
sexual behavior and that D.B.C. bit J.C.J.’s penis during one of those acts. The trial court
stated that after reading the report, defense counsel was “right” that it was “fair to go into
the fact that” D.B.C. may have been describing what her brother was doing to her instead
of the Defendant. Moreover, the trial court determined that the State was prohibited from
“get[ting] into the fact there’s an allegation” from 2003 involving this twelve-year-old girl
and to “stay away from the prior convictions” and “from [the Defendant’s] having sex with

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other people.” Thus, despite the Defendant’s assertion to the contrary, the Defendant was
granted permission to engage in the cross-examination of Ms. Harper he sought.

The Defendant complains that the trial court erred when it concluded that the State
would be allowed to ask Ms. Harper if the children had advised her that they learned this
behavior from the Defendant, as well as about DCS policy on classification of the victims
and the assumption that it was a learned behavior under these circumstances. Ms. Harper
was a DCS investigator for eleven years, and she testified about the DCS investigation
process. The Defendant indicated that he sought to introduce information that the reason
the children were interviewed was because of the bite mark on J.C.J.’s penis, which would
have left an incomplete picture for the jury, as this was not the only reason they were
interviewed. The trial court allowed the State to ask a question that was as minimally
intrusive as possible by not referencing the 2003 convictions nor the Defendant’s sexual
activity with others, only asking if the victims advised that they learned this behavior from
the Defendant and about DCS policy. This was allowed in order to provide a complete
picture, as much as possible, of why these children were interviewed and the nature of their
disclosures without getting into more prejudicial information. We cannot say that the trial
court abused its discretion in finding that the defense would have opened the door to this
line of questioning of Ms. Harper. See Williams v. State, 991 So.2d 593, 607 (Miss. 2008)
(holding that 404(b) evidence was essential to provide the jury with a “complete story” of
the events that led to the defendant’s being identified as the person who perpetrated the
crimes charged); Turner v. State, 4 S.W.3d 74, 79-80 (Tex. Ct. App. 1999) (determining
that once the defendant opened the door to collateral issues, the prosecution was entitled to
introduce evidence to complete the story).

Defense counsel made the strategic decision to forego questioning these witnesses
on the particular topics in order to avoid “opening the door” to more damaging evidence.
Such a strategic decision does not violate a defendant’s constitutional rights to a defense
or to cross-examine that State’s witnesses. See Bailey v. Pitcher, 86 Fed. Appx. 110, 114
(6th Cir. 2004) (holding the same with respect to a defendant’s right to cross-examine
witnesses under the Confrontation Clause).

III. Admission Against Interest

Next, the Defendant argues that the trial court committed reversible error when it
characterized the text messages between the Defendant and D.B.C. as a confession or
admission against interest and gave the jury the corresponding instruction. According to
the Defendant, nowhere in the text messages is there any statement by the Defendant nor
in the responses given by D.B.C. that amounts to an acknowledgement of sexual abuse.
The Defendant remarks, “There is no specific reference to it, no allusion to the sexual abuse
of either [victim], no asking for forgiveness, or a reaction by [D.B.C.] that would suggest
that sexual abuse was the topic at hand.” The Defendant asserts that the opposite is, in fact,
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true because D.B.C. tries to reassure the Defendant that he has done nothing wrong. The
Defendant asserts that the text messages reflect the Defendant’s disappointment with how
the separation with the victims’ mother was affecting D.B.C.

The State responds that the text messages could easily be interpreted as the
Defendant’s referencing his sexual abuse of the victims, and thus, the trial court properly
included the instruction. According to the State, “the [D]efendant may view his messages
as being innocent, but the jury was entitled to interpret them differently.” In addition, the
State concludes that any error in this regard was harmless given the overwhelming evidence
against the Defendant.

When discussing the jury charge, defense counsel objected to any instruction on a
confession, opining that there had been no confession or admission against interest. The
trial court said that the “text messages sure sound[ed] like admitting to something” and that
it was up to the jury to decide the meaning. The trial court continued,

It doesn’t amount to a full confession like I admit that I did all these
sexual acts to you and I’m sorry. But it does sort of allude to the fact that the
language there is in my opinion the jury could take it either as confessing that
he’s sorry for all the things he did or they just could take it any other way
they want. But the wording of it is pretty explicit so I think it either amounts
to what could be argued as a confession or at the very least an admission
against interest.

In the final jury charge, the trial court gave the following instruction:

Evidence has been introduced in the trial of a statement or statements
made by the [Defendant] outside the trial to show a confession or admission
against interest. A confession is a statement by the [D]efendant that . . . he
committed the crime charged. An admission against interest is a statement
by the [D]efendant which acknowledges the existence or truth of some fact
necessary to be proven to establish the guilt of the defendant or which tends
to show guilt of a defendant or is evidence of some material fact but does not
amount to a confession.

While this evidence has been received, it remains your duty to decide
if, in fact, such statement was ever made. If you believe a statement was not
made by the [D]efendant, you should not consider it. If you decide the
statement was made by the [D]efendant, you must judge the truth of the facts
stated. In so determining, consider the circumstances under which the
statement was made. Also, consider whether any of the other evidence before
you tends to contradict the statement in whole or in part. You must not,
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 however, arbitrarily disregard any part of any statement, but rather should
consider all of any statement you believe was made and is true. You are the
sole judge of what weight should be given such statement. If you decide a
statement was made, you should consider it with all other evidence in the
case in determining the [D]efendant’s guilt or innocence.

See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.--Crim. 42.11 (2019 ed.)

Our supreme court has noted that “[t]he distinction between an admission and a
confession is blurred.” Helton v. State, 547 S.W.2d 564, 567 (Tenn. 1977), overruled on
other grounds by State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). Generally, when
a defendant admits in a statement to having engaged in each element of the crime with
which he or she is charged, the statement is properly characterized as a confession. See
State v. Lee, 631 S.W.2d 453, 455 (Tenn. Crim. App. 1982). On the other hand, an
admission is an acknowledgment by the accused of certain facts that tend, along with other
facts, to establish guilt. Helton, 547 S.W.2d at 567. “An admission, then, is something
less than a confession and, unlike a confession, . . . an admission is not sufficient in itself
to support a conviction.” Id.

In the text messages, the Defendant told D.B.C. the following:

I am the worst thing that has ever happened to you[.] I really don’t
feel worthy of anyone[’]s love[.] I absolutely hate the things I have done and
the ways that I have hurt people[.] I am a piece of s--t who doesn’t even
deserve to breathe[.] I don’t wanna talk to anyone[.] I just want to stop
existing! My only wish is that you could erase every memory of me.

Subsequently, the victim said to the Defendant “[N]o one cares about the past[,] it[’]s the
future they care about[,]” and the Defendant responded, “I don’t deserve your love or your
words. [Yo]ur life would b[e] destroyed if [yo]u allowed me back into it! I believe an
eternity of hell is no match for a heartache of hurting those you love and leaving those you
love[.] I am a destroyer of beautiful souls.” At trial, D.B.C. was asked about the substance
of these text messages, and she affirmed that she believed that the Defendant was referring
to the sexual things he had done to her and J.C.J.

The jury was free to credit D.B.C.’s interpretation of the Defendant’s text messages.
These statements, taken together with other facts, tend to establish the Defendant’s guilt of
the crimes charged, and therefore, can be construed as an admission against interest. See
generally State v. Antonio George White, No. 775, 1987 WL 25166, at *1 (Tenn. Crim.
App. Dec. 1, 1987) (stating that the defendant’s statement denying involvement in the
crime, but admitting being at the crime scene with another perpetrator, was an admission
under Helton); see also State v. Litton, 161 S.W.3d 447, 458-59 (Tenn. Crim. App. 2004).
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We conclude that the trial court properly gave the instruction on an admission against
interest. It allowed the jury to consider the surrounding circumstances and determine, in
proper context, if the Defendant was acknowledging culpability.

However, whether these text messages qualify as a confession is certainly somewhat
more problematic because the statements are not acknowledgments by the Defendant to
having engaged in elements of the crimes charged. Nonetheless, the trial court correctly
charged the difference between an admission and a confession. The trial court did not
attempt to determine or define for the jury which statement, if either, existed in this case.
The trial court also informed the jury that it was the jury’s province to determine what
weight, if any, the statements proven in the case should carry. The court additionally
informed the jury that it might take any statement in consideration with all the other facts
and circumstances proven in the case. This, together with the overwhelming proof of the
Defendant’s guilt, convinces us that any error in giving the instruction on confessions was,
at worst, harmless. See, e.g., Sate v. Milton Lee Cooper, No. 03C01-9706-CR-00202, 1998
WL 573409, at *6-7 (Tenn. Crim. App. Sept. 9, 1998) (reaching a similar conclusion).

IV. Cumulative Error

The Defendant contends that even if each of the above-referenced errors do not
entitle him to a new trial standing alone, the cumulative effect of the errors deprived him
of a fair trial. The State argues that because no errors occurred, the cumulative error
doctrine is inapplicable.

The cumulative error doctrine applies to circumstances in which there have been
“multiple errors committed in trial proceedings, each of which in isolation constitutes mere
harmless error, but when aggregated, have a cumulative effect on the proceedings so great
as to require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester,
324 S.W.3d 1, 76 (Tenn. 2010). However, circumstances which would warrant reversal of
a conviction under the cumulative error doctrine “remain rare” and require that there has
“been more than one actual error committed in the trial proceedings.” Id. at 76-77. Because
we have found only one potential error in this case, which we have deemed harmless, the
cumulative error doctrine is inapplicable.

V. Judgment Forms

As a final note, we recognize some issues with the judgment forms in this case that
need to be corrected. Count 8 was dismissed prior to the jury charge. However, no
judgment form was entered for that count reflecting its dismissal. See Tenn. R. Crim. P.
32(e)(3) (“If the defendant is found not guilty or for any other reason is entitled to be
discharged, the court shall enter judgment accordingly.”); State v. Berry, 503 S.W.3d 360,
364 (Tenn. 2015) (order) (“For charges resulting in a not guilty verdict or a dismissal, the
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trial court should ‘enter judgment accordingly’ as to the respective count.”). Moreover, as
noted above, the judgment forms in Counts 9 and 10 reflect eight-year sentences when the
trial court, in fact, imposed twelve-year sentences. Upon remand, a judgment form shall
be entered in Count 8, and the sentence length in Counts 9 and 10 shall be corrected.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed. However, the case is remanded for entry of corrected judgment
forms consistent with this opinion.

D. KELLY THOMAS, JR., JUDGE

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