State of Tennessee v. Parvel Gudger

[by Unknown]
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 25, 2025 Session

STATE OF TENNESSEE v. PARVEL GUDGER

Appeal from the Circuit Court for Cocke County FILED
No. 9430 Carter Scott Moore, Judge
JUN 23 2025
Clerk of the Appellate Cptirts
No. E2023-01798-CCA-R3-CD REc'd By re fonete

The Defendant, Parvel Gudger, was convicted by a Cocke County jury of aggravated sexual
battery, continuous sexual abuse of a child,! rape of a child, and incest, for which he
received an effective sentence of fifty-two years’ incarceration. On appeal, the Defendant
argues that (1) the trial court erred in denying his motion to suppress his confession, (2)
the trial court erred in admitting a recording of the victim’s forensic interview, (3) the
evidence adduced at trial was insufficient to sustain his convictions, and (4) his sentence is
excessive. We ordered supplemental briefing to address whether the State’s elections of
offenses were sufficient to protect the Defendant’s right to a unanimous jury verdict for the
charges of rape of a child and incest. Following our review, we conclude that the State
failed to elect an offense as to the rape of a child and incest charges and that this failure
resulted in plain error. Accordingly, we reverse the Defendant’s convictions for rape of a
child and incest and remand for a new trial on those charges. We otherwise affirm the
judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right;
Judgments of the Criminal Court Affirmed in Part;
Reversed and Remanded in Part

W. MARK WARD, SP. J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and MATTHEW J. WILSON, JJ., joined.

Rebecca V. Lee, District Public Defender; and Keith E. Haas, Assistant District Public
Defender, for the appellant, Parvel Gudger.

1 As discussed more fully below, the trial court dismissed the Defendant’s conviction of continuous
sexual abuse of a child following the Defendant’s trial but prior to the Defendant’s sentencing hearing.
Jonathan Skrmetti, Attorney General and Reporter; Abigal H. Hornsby, Assistant Attorney
General; Jimmy Dunn, District Attorney General; and Mark B. Strange and S. Joanne
Sheldon, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION
I. Factual and Procedural History

On October 30, 2020, a Cocke County grand jury returned an indictment charging
the Defendant with three counts of incest, two counts of rape, and one count each of
aggravated assault, aggravated sexual battery, rape of a child, and continuous sexual abuse
of a child. These charges involved two victims, H.G. and K.M.* The Defendant filed a
successful motion to sever the offenses, and the State proceeded to separate trials on the
offenses specific to each victim. This appeal arises from the Defendant’s trial on the
charges of aggravated sexual battery, continuous sexual abuse of a child, rape of a child,
and incest, as they related to H.G. Following pretrial evidentiary hearings, the
Defendant’s trial commenced on August 17, 2022.

A. Trial

The victim’s mother, S.M., testified that she and the Defendant divorced in 2018,
and that the Defendant was the victim’s father. Shortly after the divorce, the Defendant
sought treatment for drug addiction at a rehabilitation facility in Savannah, Tennessee.
Following the Defendant’s completion of a recovery program, S.M. began allowing the
Defendant to visit her and their children in Newport. By July 2020, S.M. and the Defendant
called to talk to each other every night. Around this same time, S.M. purchased a new
house (“the new house”), also in Newport, which she intended to renovate before moving
in along with her children.

S.M. recalled that late in the evening of July 18 or 19, 2020, she and the victim sat
together in bed while S.M. spoke to the Defendant on her cell phone. During their
conversation, S.M. handed her cell phone to the victim and invited the Defendant to tell
the victim goodnight. In response, the victim “handed the phone back” to $.M. and moved
to hide behind her mother. S.M. ended the phone call shortly thereafter and asked the
victim what was wrong. The victim began crying and told S.M. that the Defendant had
raped her on multiple occasions and in several locations. The victim stated that these rapes

2 It is the policy of this court to refer to minor victims by their initials to protect their privacy.

3 To further protect her privacy, we will hereinafter refer to H.G. as “the victim” and to her relatives
by their initials.
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generally occurred while S.M. was either away from home or taking a bath. S.M.
comforted the victim until she fell asleep and then called her parents and the police.

S.M. also recalled that the victim described a rape which occurred at the new house,
which S.M. found peculiar because she had not yet moved into the new house. She averred
that she “couldn’t figure[] out how” the victim and the Defendant would have entered the
new house. S.M. questioned the victim to this effect, but the victim “didn’t have an answer
to that.” S.M. was unsure whether the Defendant had a key to the new house.

On cross-examination, S.M. testified that the Defendant moved out of her home
several months before the finalization of their 2018 divorce. She recalled that the
Defendant completed his recovery program between August 16 and November 15, 2019,
and that he was later hired as a counselor at the same rehabilitation facility.

SM. testified that the Defendant visited her and their children on the weekend of
July 4, 2020. She averred that this was “possibly” the first time he visited after completing
his recovery program. The Defendant did not have a vehicle at the time, so S.M. rented a
car for him to drive to Newport. S.M. recalled that the victim was around ten years old at
the time of the Defendant’s visit and was experiencing “hygiene problems.” S.M. testified
that she asked the Defendant to speak to the victim about these problems, but she was
unsure whether he did so. She did not recall noticing anything inappropriate between the
Defendant and the victim during his July 4, 2020 visit.

During her conversation with the Defendant on July 18 or 19, 2020, S.M. noticed
that the victim was “doing something” on her cell phone, so she took the victim’s cell
phone and began “scrolling through” it. From her search of the victim’s cell phone, S.M.
learned that the victim had been talking to “a stranger” about “roleplaying.” S.M. also
recalled that the victim used her TikTok account “quite a bit” during this time and had
accumulated hundreds of followers.

The morning after the victim told S.M. that the Defendant had raped her, S.M. took
the victim to Safe Harbor Child Advocacy Center (“Safe Harbor”) in Sevierville. There,
the victim recounted her allegations against the Defendant in a forensic interview and
underwent a physical evaluation by a doctor. Several days later, officers from the Newport
Police Department (“NPD”) visited S.M.’s home to collect the victim’s cell phone, laptop,
iPad, and several pieces of her clothing for examination.

A recording of the victim’s July 19, 2020 forensic interview was played for the jury.
Before she began the interview, Jennie Stith identified herself as a Safe Harbor employee
and stated that she would be interviewing the victim. In her interview, the victim stated
that she was ten years old, that she would soon begin fourth grade, and that she lived with

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her mother, brother, and sister. She also noted that the Defendant had previously lived
with her but that he was now employed in Savannah. The victim stated that the Defendant
occasionally visited the family in Newport.

The victim stated during her forensic interview that the Defendant “would touch me
in places he shouldn’t,” which she later identified as her breasts and her vagina. The victim
was unable to clearly remember the first time the Defendant inappropriately touched her,
but she believed that it began when she was either in kindergarten or first grade. She
recalled one occasion in which the Defendant asked her to lay down with him while he
watched television and forced her to touch his penis “under the covers.” The victim stated
that she did not see the Defendant’s penis until she was in the second grade, when the
Defendant began forcing her to perform oral sex on him. She recalled that the Defendant
would rub the “white stuff’ that came out of his penis into the floor. The victim said this
made her feel “weird” and, though she did not want to do as the Defendant asked, she was
afraid she would get in trouble if she refused. She explained that she once asked the
Defendant why he asked her to do these things, to which the Defendant responded that she
was not yet old enough to understand and that she “could get in big trouble” if she told
anyone.

The victim said that the Defendant usually asked her to touch his penis or to perform
oral sex on him while S.M. was away from home or in the bathroom. She estimated that
this occurred about every one or two weeks. She also recalled that the Defendant inserted
his fingers into her vagina during these encounters and that his fingernails “would scratch
in[side] me.”

During her interview, the victim described several occasions in which the Defendant
touched her vagina. In one, she recalled that S.M. nearly caught the Defendant touching
her vagina while the two laid on the couch together, but the Defendant “quickly” removed
his hand when S.M. entered the room. In another, the Defendant touched the victim’s
vagina while he showed her pornographic videos on the television. She further stated that
approximately a year previously, the Defendant asked her to take a picture of her vagina
on her iPad, but the victim refused to do so.

When asked to describe the last time the Defendant inappropriately touched her, the
victim stated that during the Defendant’s most recent visit to her home, he removed his
penis from his underwear, placed his hands on the victim’s head, and forced her to perform
oral sex on him. She stated that the Defendant otherwise remained clothed and that she
was fully clothed. She described this rape as occurring in S.M.’s master bedroom while
S.M. took a bath. When asked when this rape occurred, the victim maintained that it
happened “the last time [the Defendant] came to visit,” which she described as a weekend
visit. She averred that this visit was “like last month,” though she was unsure precisely

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when and noted that she did not “really check the months.” Later in the interview, the
victim stated she did not remember any such encounters occurring anywhere besides
S.M.’s bedroom and on the couch.

The victim requested to stop talking about the Defendant, and Ms. Stith took a break
in the interview. When the interview resumed, Ms. Stith again asked the victim to describe
the last time “it happened,” to which the victim responded that S.M. “was in the bath, and
I was in [her] room.” Ms, Stith then asked whether the Defendant had ever inappropriately
touched her outside of her home, and the victim agreed that he had. The victim described
another occasion in which she accidentally broke the Defendant’s “controller.” The
Defendant told the victim that they would “go on a ride,” and he drove her to the new
house. Though she was unsure of the new house’s address, she provided a general
description of its location and noted that it was “not far from our old house that we’ve been
living in.” When they arrived at the new house, the Defendant took the victim inside,
touched her vagina, and made her touch his penis. She later recalled that the Defendant
also attempted to put his penis inside her vagina while they were at the new house and that
he “kept on trying to do that” until she told him to stop. The victim did not believe that the
Defendant’s penis entered her vagina, but she noted that it hurt. The victim then described
this encounter as the last time the Defendant sexually touched her.

At trial, the victim identified herself and Ms. Stith in the recording of her forensic
interview and testified that everything she said during the interview was true. On cross-
examination, the victim testified that prior to trial, she had most recently seen the
Defendant during his July 4, 2020, visit. She recalled that the Defendant drove her to the
new house during this visit, though she did not remember whether he discussed her
“hygiene” with her. She testified that she was unsure whether the Defendant last raped her
in S.M.’s bedroom while S.M. took a bath or at the new house. Nevertheless, she stated
that the rape at S.M.’s new house was “one of the last times that it happened.” She
explained that her memory was “fuzzy” on the issue.

The parties stipulated that NPD Officer Brandon Cassady responded to S.M.’s 911
call on the morning of July 19, 2020. Officer Cassady interviewed S.M., who told him that
on the previous night, she had looked through the victim’s cell phone and found a link to a
pornographic website as well as potentially sexual messages between the victim and a
stranger discussing “roleplay.” Afterwards, the victim made a “disclosure” to S.M., and
S.M. called the police the following morning.

NPD Detective Derrick Webb testified that he responded to S.M.’s 911 call along
with Officer Cassady. After interviewing S.M., Detective Webb contacted the Department
of Children’s Services and later attended the victim’s forensic interview at Safe Harbor.
On October 30, 2020, Detective Webb and Detective Jason Ramsey interviewed the

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Defendant in the jury room of the Cocke County courthouse. A recording of the
Defendant’s interview was played for the jury.

The recording of the Defendant’s interview depicted him sitting at a table and
speaking to Detectives Ramsey and Webb, who were seated off-camera. Prior to the
interview, the Defendant waived his Miranda rights and agreed to speak with the detectives.
Detective Ramsey then stated that “two girls” had given forensic interviews in which they
both “told a pretty in-depth story” alleging that the Defendant had raped them. Detective
Ramsey also noted that there was “evidence from cell phones, tablets, [and] clothing” to
substantiate the victims’ claims. Detective Webb then informed the Defendant of his
charges, and Detective Ramsey identified the victim as one of the “two girls.” Detective
Ramsey stated he remembered the Defendant from the Defendant’s previous arrest and
recalled that during that time, the Defendant was struggling with drug addiction, which he
described as “the devil he had on his back.” Detective Ramsey invited the Defendant to
explain his side of the story and advised that he hoped the Defendant could get help if the
allegations were true, though he noted that he did not intend to insinuate that they were.

The Defendant stated that he did not know how to respond to the charges against
him. He agreed that he had been arrested in 2016 and noted that S.M. had subsequently
forced him to move out of their home. Afterwards, the Defendant and S.M. mended their
relationship, and in 2017, the Defendant moved back in with S.M. However, “everything
started spiraling out of control again” in 2018, when the Defendant began using
methamphetamine. He and S.M. separated again in April 2018, and the Defendant began
a recovery program at a rehabilitation facility in Savannah in August 2019.

The Defendant stated that he did not see his children after he and S.M. separated
until November 2019, when he visited the family to celebrate Thanksgiving. While at
S.M.’s home, the Defendant decided to search for online job listings using an iPad the
victim typically used. During this search, the Defendant checked the iPad’s Internet search
history and discovered recent searches for pornography. He confronted each of his children
about these searches, and the victim ultimately confessed that she had made the searches.
The Defendant recalled that both he and the victim felt embarrassed and that he advised
the victim she was “too young to be looking at stuff like this.” The Defendant did not tell
S.M. about his findings because he did not want to further embarrass the victim.

The Defendant denied that he touched the victim in a sexual manner or that he
watched pornography with her and maintained he did not understand the basis of the
victim’s allegations. Detectives Webb and Ramsey pressed the Defendant on this issue
and asked why the victim would allege that her father attempted to rape her and, further,
how she would know anything about pornography “unless she had seen something”
pornographic previously. The Defendant stated the victim had always been interested in

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“really weird stuff” and recalled that he had previously told S.M. that they needed to keep
a closer watch on what the victim was searching for and watching on the Internet. He noted
that he had not had any influence on his children’s discipline since his 2016 arrest. The
Defendant stated that “the only thing I can think of [to explain the victim’s allegations] is
her watching porn.” He admitted that he watched pornography in private but denied that
he ever used the victim’s iPad to do so.

During the interview, Detective Webb stated, “I’m going to tip our hand a little bit
more... we’ve recovered a bunch of clothes from [the victim] ... what would you do ifI
told you that your semen was found on about two of those pieces of clothing?” The
Defendant responded that any semen recovered from the victim’s clothing had likely been
transferred there from bathroom towels. He explained that he masturbated “pretty often,”
that he occasionally did so in his children’s bathrooms, and that he cleaned himself
afterwards using their bathroom towels which he discarded into their laundry hampers.
Detectives Webb and Ramsey expressed their skepticism of this defense, and the Defendant
responded, “I don’t know what you want me to tell you.” Detective Webb asked the
Defendant to tell the truth and explained that the victim would have to testify against him
during a trial, at which point she would be “maybe eleven.” The Defendant then asked,
“How long am I looking at?” Detective Ramsey estimated that the Defendant could receive
a sentence of “a hundred years or more,” “if you round everything on the minimum,” but
advised the Defendant that he may not be convicted as charged. Detective Ramsey stated
that he would tell the district attorney general’s office if the Defendant cooperated during
his interview and that “if something happened, and you cooperate, there’s a real, real good
chance that the D.A.’s gonna work something out.” He also recalled that a recent defendant
had been similarly charged and received a sixty-year sentence.

The Defendant then requested a break in the interview and asked if he could smoke
a cigarette. The detectives provided the Defendant with cigarettes and a Sprite during the
break and opened a window to permit the Defendant to smoke during the break. While he
did so, the detectives spoke casually and joked with one another until the Defendant stated
that he did not want to spend the rest of his life in prison. After the Defendant finished
smoking, he and the detectives returned to the interview table. The Defendant then asked
whether the detectives could “help [him] not spend the rest of [his] life in prison.”
Detective Ramsey stated that he would immediately call the district attorney’s office after
the interview if the Defendant was cooperative and remorseful and noted that “cooperation
goes a long way.” The Defendant asked whether his charges could be reduced to “sexual
misconduct,” and Detective Ramsey responded that while it was possible that some of his
charges could be reduced or dropped, that decision remained with the district attorney’s
office.
The Defendant then admitted that he had performed oral sex on the victim and
touched her breasts. He denied that he ever asked the victim to perform oral sex on him or
to touch his penis. He stated that he began performing oral sex on the victim when she
began puberty, “probably two” years previously, and that he did so while he was under the
influence of methamphetamine. He also admitted that he digitally penetrated the victim’s
vagina and that the victim complained once that his fingernails had scratched her. He
estimated performing oral sex on the victim two or three times and stated that he
masturbated while doing so at least once. He described these encounters as occurring
within a timeframe of “a couple of months” in early 2018 and ending before April 2018.
He denied “doing anything” with the victim during his visit during the weekend of July 4,
2020, and noted that he did not have a key to either S.M.’s home or to the new house.

The Defendant stated that he realized he “had to put a stop to” his sexual conduct
with the victim after an encounter in which she asked him to perform oral sex on her. He
stated that when he visited the victim in November 2019, he hoped she would “understand”
that he had not been himself when he performed oral sex on her or inappropriately touched
her.

He maintained that he never watched pornography with the victim. He explained
that the victim was likely first exposed to pornography through S.M., averring that S.M.
had likely used the victim’s iPad to search for pornography following her separation with
the Defendant. The Defendant described himself as a “chronic masturbator” and again
stated that his semen was likely transferred to the victim’s clothing from the bathroom
towels he used to clean himself and discarded into her laundry hamper. Detective Webb
wrote a summary of the Defendant’s interview, which the Defendant signed.

On cross-examination, Detective Webb agreed that the Defendant denied the
victim’s allegations for the larger portion of an hour before he confessed following the
break in the interview. He also agreed that he declined to record all the Defendant’s denials
and assertions in his summary of the interview. Detective Webb noted that he and
Detective Ramsey had to “ramp up” their questioning to persuade the Defendant to confess.
He described his statement regarding the presence of the Defendant’s semen on the victim’s
clothing as an attempt to increase the “pressure” on the Defendant.

Detective Webb testified that during his interview with S.M. on July 19, 2020, S.M.
stated that she had found pornography and discussions of sexual roleplaying on the victim’s
cell phone. On July 24, 2020, Detective Webb returned to S.M.’s home and collected the
victim’s cell phone, laptop, iPad, and several pieces of the victim’s clothing, which he sent
to the Tennessee Bureau of Investigation (“TBI”) for examination. On December 22, 2020,
Detective Webb received the results of this examination, which did not indicate the
presence of any semen on the victim’s clothing. Detective Webb agreed that he did not

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know the results of this examination during his October 30, 2020, interview with the
Defendant.

The State rested. The Defendant called Theresa Trice to testify on his behalf. Ms.
Trice recalled that she and the Defendant had been friends since 2014 and that he had lived
with her and her husband for a brief period in 2018 and again between January and August
2019. Ms. Trice testified that she drove the Defendant to and from work while he lived
with her and that she also drove him to begin his stay at the rehabilitation facility in
Savannah in August 2019.

The Defendant also elected to testify. The Defendant recalled feeling “blindsided”
during his interview after learning of the charges against him, and that this confusion was
compounded when the detectives told him they had evidence to substantiate the victim’s
allegations. He denied that he performed oral sex on the victim, digitally penetrated her
vagina, or that he otherwise sexually touched her in any way. He maintained that any
presence of his semen found on the victim’s clothing came from towels he used to clean
himself after masturbating. The Defendant explained that he provided a false confession
during his October 30, 2020, interview because he felt intimidated and pressured to do so
by Detectives Webb and Ramsey. He also stated that he confessed to “make it easier on
my mother and my sister” once the victim’s allegations became public. The Defendant
testified he felt he had no future and had planned on committing suicide immediately after
his interview.

The Defendant testified that he was convicted of misdemeanor theft in 2016 and
that he and S.M. began having marital problems soon afterwards. S.M. confiscated his
housekeys following his arrest and did not return them to him. She also did not give the
Defendant a key to the new house. After his completion of his recovery program in
Savannah, the Defendant began helping S.M. renovate the new house. He stated that he
never visited the new house when S.M. was not present.

The Defendant reiterated that he believed the victim was “into weird things.” He
explained that he had found pornographic searches in the Internet search history on her
tablet during his November 2019 visit and that the victim confessed she had made the
searches. The Defendant recalled that he felt embarrassed and that he did not know how
to handle the situation. He testified that he did not tell S.M. about the encounter because
he did not want his first visit to his family after completing his recovery program to be
marred by a negative experience.

The Defendant testified that during his visit to Newport on the weekend of July 4,
2020, S.M. asked the Defendant to talk to the victim about her “hygiene.” He also recalled
that S.M. was concerned that the victim was not completing her chores around the house

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because she was “constantly” using her cell phone. Accordingly, the Defendant “took [the
victim] for a ride down the street” and discussed her need to both take better care of her
hygiene and to help S.M. by doing her chores. The victim responded by apologizing and
stating that she understood. The Defendant denied that he went to the new house during
his July 4, 2020, visit.

On cross-examination, the Defendant testified that Detectives Webb and Ramsey
did not raise their voices, threaten him with physical harm, or hit the table during his
interview. He described the tone of the interview as cordial and agreed that he was not
forced to sign Detective Webb’s summary of his confession at the conclusion of the
interview.

The Defendant rested. Upon this proof, the jury convicted the Defendant as
charged.

B. Sentencing Hearing

The trial court held a sentencing hearing on January 10, 2023. Prior to the
presentation of arguments, the State moved to dismiss the Defendant’s conviction of
continuous sexual abuse. The State noted that the parties had agreed that there was a
“notice issue” particular to this conviction.* The trial court granted the motion.

The State introduced the Defendant’s presentence report and a victim impact
statement from S.M. The State requested that the trial court apply enhancement factor one,
that the defendant has a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range; enhancement factor four,
that the victim of the offense was particularly vulnerable because of her age; enhancement
factor seven, that the offense involved a victim and was committed to gratify the
defendant’s desire for pleasure or excitement; and enhancement factor fourteen, that the
defendant abused a position of public or private trust. Tenn. Code Ann. §§ 40-35-1 14(1),
(4), (7), (14). In consideration of these enhancement factors, the State argued that
maximum sentences were warranted for each of the Defendant’s convictions. The State
also argued that consecutive sentencing was warranted, as two of the Defendant’s
convictions involved sexual abuse of a minor. Tenn. Code Ann. § 40-35-115(b)(5).

4 While the parties did not specify the particular grounds for this “notice issue,” we surmise from
our review of the record that it related to the State’s failure to file a written notice identifying the specific
acts of sexual abuse upon which it intended to rely upon in its prosecution of the charge of continuous
sexual abuse. See Tenn. Code Ann. § 39-13-518(d) (requiring the State, at least thirty days before a trial
on a charge of continuous sexual abuse of a child, to “file with the court a written notice identifying the
multiple acts of sexual abuse of a child upon which the violation of this section is based,” including “the
identity of the victim and the statutory offense violated.”).

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The Defendant requested that the trial court consider his completion of a recovery
program to treat his drug addiction and his subsequent employment as a counselor at a
rehabilitation facility to mitigate his sentences. The Defendant argued that he had been
deprived of the opportunity to truly cross-examine the victim regarding her allegations
because the victim testified her memory was “fuzzy.” The Defendant contended that the
circumstances of his case did not warrant either maximum sentences or consecutive
sentencing.

Following arguments, the trial court concluded that no mitigating factors applied to
reduce the Defendant’s sentence. The trial court declined to apply enhancement factors
four and seven to increase the Defendant’s sentence, concluding that both the victim’s
vulnerability due to her age and the Defendant’s performance of the offenses in pursuit of
a desire for pleasure or excitement were both “encompassed” by the elements of his
convictions. The trial court also found the Defendant’s criminal record to be “slim” and
noted that it placed “minimal emphasis” on enhancement factor one. However, the trial
court concluded that enhancement factor fourteen applied, finding that the Defendant
greatly abused a position of trust as the victim’s father. Accordingly, the trial court
imposed maximum sentences for each of the Defendant’s convictions. The trial court
aligned the Defendant’s conviction of incest to run concurrently to his conviction of
aggravated sexual battery. Because the Defendant had been convicted of three offenses
involving a minor victim and because the Defendant was the victim’s father, the trial court
concluded that consecutive sentencing was appropriate. The trial court thus aligned the
Defendant’s conviction of aggravated sexual battery consecutively to his conviction of rape
of a child, yielding an effective sentence of fifty-two years’ incarceration.

The Defendant filed a timely but unsuccessful motion for new trial. This timely
appeal followed.

II. Analysis

On appeal, the Defendant argues that (1) the trial court erred in denying his motion
to suppress his confession, (2) the trial court erred in admitting a recording of the victim’s
forensic interview, (3) the evidence adduced at trial was insufficient to sustain his
convictions, (4) the State’s elections of offenses were insufficient to protect his right to a
unanimous jury verdict for his charges of rape of a child and incest, and (5) his sentence is
excessive. We will address these issues in turn.

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A. Motion to Suppress

The Defendant first contends that the trial court erred by denying his pretrial motion
to suppress the recording of his October 30, 2020, interview with Detectives Webb and
Ramsey, in which he confessed to performing oral sex on the victim and to touching her
vagina and breasts. The trial court held a hearing on the Defendant’s motion to suppress
on October 26, 2021.°

At the evidentiary hearing, Detective Webb testified that he and Detective Ramsey
interviewed the Defendant at the Cocke County courthouse on October 30, 2020, for
approximately two hours. Detective Webb wrote a summary of the Defendant’s
confession, which the Defendant signed at the conclusion of the interview. Detective Webb
testified that this summary was not a transcript of the interview and agreed that he omitted
details not directly related to the Defendant’s confession. He described the tone of the
interview as “cordial” and stated there was “no hostility,” “shouting[,] or yelling.” He
further denied threatening the Defendant at any point in the interview.

Detective Webb recalled that the Defendant was provided with cigarettes and a
Sprite upon his request and that he was permitted to smoke during a break in the interview.
Detective Webb testified he made no promises or guarantees of leniency in exchange for
the Defendant’s cooperation, though he acknowledged he told the Defendant he would
speak to the district attorney’s office if he was cooperative and remorseful. Detective
Webb stated he wore plain clothes during the interview and was “probably not” armed, He
noted that he recorded the interview on a “key fob recorder” which automatically stopped
recording near the end of the interview because it ran out of storage. He estimated that
approximately thirty-five minutes of the interview were inadvertently omitted from the
recording.

On cross-examination, Detective Webb agreed that he lied to the Defendant by
insinuating that the police had recovered evidence of the Defendant’s semen from the
victim’s clothing, noting that he had not yet received the results of the TBI’s examination
of the victim’s clothing at the time of the interview. He recalled that he repeatedly asked
the Defendant to “tell the truth” and that the Defendant repeatedly denied having sexual
intercourse with the victim.

Detective Ramsey denied threatening, promising, or guaranteeing anything to the
Defendant during his interview. However, he recalled telling the Defendant he would

5 The record does not include a copy of the Defendant’s motion to suppress or any response from
the State. However, upon our review of the transcript, we find the basis of the Defendant’s motion, the
State’s arguments in opposition, and the trial court’s findings of fact and conclusions of law to be
sufficiently documented for appellate review.

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speak to the district attorney’s office on the Defendant’s behalf if he cooperated. Detective
Ramsey stated he told the Defendant he could serve “as much as a hundred years” if
convicted of the charges against him. He noted that he had not done any calculations as to
the appropriate sentencing ranges for the Defendant’s charges and averred that he gave the
estimate “off the top of my head.”

On cross-examination, Detective Ramsey described the interview as initially
“slow.” He recalled that the Defendant appeared to have “something on his mind that he
wanted to talk about,” so he pressed the Defendant to “open up” by asking increasingly
pointed questions about the victim’s allegations. He described the Defendant as more
relaxed after he confessed to performing oral sex on the victim. Detective Ramsey also
noted that he did not yet know the results of the TBI’s examination of the victim’s clothing
during the interview. Detective Ramsey denied that he attempted to intimidate or coerce
the Defendant into confessing.

The trial court bifurcated the suppression hearing to review the recording of the
Defendant’s confession. When the hearing resumed on November 2, 2021, the Defendant
testified that he knew Detective Ramsey from his 2016 arrest for theft and averred that he
believed they had developed a “rapport” from that investigation. The Defendant recalled
that he denied the victim’s allegations for approximately one hour during his interview.
However, he felt “scared to death” after Detective Ramsey told him he could face more
than one hundred years’ incarceration if convicted. The Defendant stated this fear was
compounded when Detective Webb noted that a local defendant had recently been
convicted of similar charges and received a sentence of sixty years’ incarceration. Though
the Defendant maintained his innocence, he stated that in “every dealing I’ve ever had with
the law, when it came to [S.M.], no one ever listened to me.” The Defendant testified that
he gave a false confession and would not have done so if not for the effect of Detectives
Webb and Ramsey’s “combined statements.” He also noted that he was held in
confinement for three or four days before his interview.

On cross-examination, the Defendant agreed that he voluntarily signed Detective
Webb’s summary of his confession. He described the interview as initially cordial but
noted that Detective Ramsey’s demeanor towards him changed when he told him about his
potential sentence. He testified that neither detective ever threatened him with physical
harm. Though he further agreed that neither detective made guarantees or promises of
lenient punishment, he testified that they implied they would help him if he cooperated.
He recalled that he pled with the detectives to help him avoid “spend[ing] the rest of [his]
life in prison” and that he believed they would do so if he confessed.

The Defendant stated that he had completed high school and had some college
education. He further testified that he was not under the influence of any narcotic or drug

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nor deprived of food, sleep, or medical attention during his interview. He noted that he
was handcuffed during his interview.

In closing arguments, the State argued that the recording of the Defendant’s
interview was admissible because the totality of the circumstances indicated that his
confession contained therein was voluntary. Specifically, the State noted that the
Defendant was questioned over the course of two hours; was permitted to take breaks and
provided with a drink and cigarettes upon his request; was not harmed or threatened with
physical abuse; was not under the influence of alcohol, drugs, or other narcotics; and was
not deprived of food, sleep, or medical attention. Further, the State noted that the
Defendant had previously served eight years in the United States Air Force, had some
college-level education, and had previous experience with law enforcement. The State
contended that Detective Webb’s statement regarding the presence of the Defendant’s
semen on the victim’s clothing was phrased as a hypothetical, rather than as an attempt to
coerce a confession through deception.

The Defendant argued that his confession should be suppressed because it was false
and involuntary. He noted that he repeatedly denied the victim’s allegations over the
course of an hour and maintained that he would not have confessed but for the “promises[, }
threats[,] and deception[] used by the police.” The Defendant argued that Detective
Webb’s insinuation that the Defendant’s semen had been found on the victim’s clothing,
Detective Ramsey’s statement that he could receive a sentence of more than one hundred
years’ incarceration if convicted as charged, and Detective Ramsey’s reference to a local
defendant recently found guilty of similar charges were intended to frighten and coerce
him into confessing. He asserted that he believed the detectives’ assurances that they
would talk to the district attorney’s office on his behalf if he cooperated and confessed.

The trial court denied the Defendant’s motion to suppress the recording of his
interview, concluding that the totality of the circumstances indicated that his confession
was voluntary. The trial court found that the Defendant was “well-spoken” and of “above
average intelligence,” that he had previous experience with law enforcement stemming
from his 2016 theft conviction, and that he was interviewed for a fairly short time prior to
his confession. It further noted that the Defendant was not intoxicated, deprived of any
necessities, or held in confinement for an overly long period of time prior to his interview.
The trial court reasoned that the tone of the interview was cordial, noting that the Defendant
was permitted to take a break and was provided with cigarettes and a Sprite upon his
request. Additionally, the trial court found that any “deception” employed by Detective
Webb in his statement regarding the presence of the Defendant’s semen on the victim’s
clothing did not operate to coerce the Defendant’s confession because the “deception used
_.. doesn’t match up with” the Defendant’s ultimate confession that he touched the victim’s
breasts and vagina and performed oral sex on her.

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On appeal, the Defendant maintains that his confession should have been suppressed
because it was involuntary and false and made under “undue influence” and “pressure”
following the detectives’ “repeated lies.” He identifies several statements made by
Detectives Webb and Ramsey throughout the interview as coercive and posits that their
combined effect served to overbear his will. The State responds that the trial court
appropriately denied the Defendant’s motion to suppress by concluding that his confession
was voluntary.

“Questions about the credibility of the witnesses, the weight and value of the
evidence,” and conflicts in the evidence are resolved by the trial court as the trier of fact in
a suppression hearing. State v. Green, 697 S.W.3d 634, 640 (Tenn. 2024) (internal
quotation marks omitted) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On
review of a suppression determination, this court is bound by the trial court’s findings of
fact unless the evidence preponderances against them. Odom, 928 S.W.2d at 23. However,
we review the trial court’s application of the law to these findings of fact de novo with no
presumption of correctness. State v. Henry, 539 S.W.3d 223, 232 (Tenn. Crim. App. 2017)
(first citing State v. Montgomery, 462 S.W.3d 482, 486 (Tenn. 2015); and then citing State
v. Day, 263 S.W.3d 891, 900 (Tenn. 2008)).

The Fifth Amendment to the Constitution of the United States provides that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth
Amendment’s protection against self-incrimination is fundamental and applies to the states
through the Fourteenth Amendment’s Due Process Clause). Similarly, the Tennessee
Constitution provides that “in all criminal prosecutions, the accused . . . shall not be
compelled to give evidence against himself.” Tenn. Const. art. I, § 9. In accordance with
these principles, our courts have long held that involuntary confessions are inadmissible at
trial, Bram v. United States, 168 U.S. 532, 542-43 (1897); McCravey v. State, 426 S.W.2d
174, 175 (Tenn. 1968). “The test of voluntariness for confessions under Article I, § 9 of
the Tennessee Constitution is broader and more protective of individual rights than the test
of voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996).

To determine whether a defendant’s confession was voluntary, this court examines
the totality of the circumstances surrounding the confession, including “both the
characteristics of the accused and the details of the interrogation.” State v. Climer, 400
S.W.3d 537, 568 (Tenn. 2013) (citing Dickerson v. United States, 530 U.S. 428-434
(2000)). Factors relevant to this assessment include, but are not limited to:

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[T]he age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and prolonged
nature of the questioning; the length of the detention of the accused before
he gave the statement in question; the lack of any advice to the accused of
his constitutional rights; whether there was an unnecessary delay in bringing
him before a magistrate before he gave a confession; whether the accused
was injured[,] intoxicated[,] or drugged, or in ill health when he gave the
statement; whether the accused was deprived of food, sleep[,] or medical
attention; whether the accused was physically abused; and whether the
suspect was threatened with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (emphasis omitted) (quoting
People v. Cipriano, 429 N.W.2d 781, 790 (1988)).

Importantly, a finding of coercive police activity “is a necessary predicate to finding
that a confession is not voluntary.” Smith, 933 S.W.2d at 455 (citing State v. Brimmer,
876 S.W.2d 75, 79 (Tenn. 1994)). Thus, the central inquiry in a voluntariness analysis is
whether, based on the totality of the circumstances, “the behavior of the State’s law
enforcement officials was such as to overbear [the defendant’s] will to resist and bring
about confessions not freely self-determined.” State v. Kelly, 603 S.W.2d 726, 728 (Tenn.
1980) (quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)). A defendant’s subjective
perception is insufficient to justify a finding of involuntariness. Smith, 933 S.W.2d at 455
(citing Brimmer, 876 S.W.2d at 76). “In order to be considered voluntary, the statement
must not be extracted by any sorts of threats or violence, nor obtained by any direct or
implied promises, however slight, nor by the exertion of any improper influence.” State v.
Smith, 42 $.W.3d 101, 109 (Tenn. Crim. App. 2000) (internal quotation marks omitted)
(quoting Bram, 168 U.S. at 542-43). That said, promises of leniency from law enforcement
do not render a confession per se involuntary. Smith, 933 S.W.3d at 455.

In this case, the Defendant argues that Detectives Webb and Ramsey employed
coercive tactics during his interview which were intended to, and indeed did, overbear his
will and elicit an involuntary confession. He articulates this argument by identifying
several statements the detectives made throughout his interview. As a preliminary matter,
we note that the Defendant does not challenge on appeal the trial court’s findings of fact
and conclusions of law as they relate to the remainder of the totality of the circumstances
surrounding his interview. Nevertheless, we note that the Defendant testified that he had
some college-level education, that he previously served in the United States Air Force, and
that he had previous experience with law enforcement and believed that he had developed
a “rapport” with Detective Ramsey following a previous arrest. Further, at no point during
the Defendant’s interview was he denied food, drink, medical attention, sleep, or any other
necessity, and was in fact permitted to take a break in which he smoked cigarettes and

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drank a Sprite which the detectives provided for him. The Defendant was also not under
the influence of any intoxicant during the interview. Neither detective threatened the
Defendant with physical harm nor raised their voices at him. Additionally, the interview
was not overly lengthy, and the Defendant was not confined for an unnecessarily long
period prior to his interview. The record therefore does not preponderate against the trial
court’s findings of fact.

The Defendant nevertheless argues that his confession was involuntary and was
elicited through “undue influence, pressure, and repeated lies.” He first contends that
Detective Webb lied to him during his interview by stating, “I’m going to tip our hand a
little bit more . . , we’ve recovered a bunch of clothes from [the victim] . . . what would
you do if I told you that your semen was found on about two of those pieces of clothing?”
Though the State responds that this statement was phrased as a hypothetical, the Defendant
maintains that he understood it as an assertion of fact and that it its effect “was a gut punch”
and “like a bag of bricks dropping on his head.” The Defendant argues that he concocted
a false confession because he truly believed that the detectives had irrefutable DNA
evidence substantiating the victim’s allegations which would be introduced against him at
a future trial.

We need not resolve the parties’ semantic disagreement as to whether Detective
Webb’s statement is properly considered a lie or a hypothetical because regardless, a police
officer’s misrepresentations, while certainly relevant to our voluntariness analysis, do not
in and of themselves render a confession involuntary. State v. Stearns, 620 S.W.2d 92, 96
(Tenn. 1981) (citing Frazier v. Cupp, 394 U.S. 731, 739 (1969)). As the trial court noted,
the Defendant ultimately confessed to performing oral sex on the victim and to touching
her breasts and vagina, which failed to explain the presence (or lack thereof) of his semen
on her clothing. Instead, the Defendant theorized that his semen arrived on the victim’s
clothing via transferal from a used bathroom towel which he discarded into the victim’s
laundry hamper after masturbating. Like the trial court, we find it difficult to agree that
the Defendant felt coerced by a statement which purported to link his DNA to the victim’s
clothing into giving a confession which failed to explain how his DNA arrived there.
Inasmuch as Detective Webb’s statement exaggerated the proof against the Defendant,
panels of this court have previously held that such exaggerations do not render a
defendant’s confession involuntary. See, e.g., State v. Mayes, No. E2022-00824-CCA-R3-
CD, 2023 WL 7049419, at *11 (Tenn. Crim. App. Oct. 26, 2023), perm. app. denied (Tenn.
May 16, 2024) (concluding that an officer’s exaggerations about the accuracy of GPS data
from the defendant’s ankle monitor and misrepresentations regarding an analysis of
surveillance footage of the crime scene were insufficient to render the defendant’s
statement involuntary); State _v. Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL
2733821, at *9 (Tenn. Crim. App. Aug. 31, 2009) (concluding that an officer’s
misrepresentation about being able to affix a particular date to evidence recovered from the

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defendant’s vehicle was insufficient to render the defendant’s statement involuntary); State
v. Green, No. 01C0A-9510-CC-00351, 1996 WL 741551, at *4 (Tenn. Crim. App. Dec.
30, 1996) (concluding that an officer’s statement that the defendant’s fingerprints had been
discovered on a dollar bill left at the crime scene was insufficient to render the defendant’s
confession involuntary, despite the fact that “the dollar bill was still undergoing a
fingerprint test”).

The Defendant also identifies as coercive Detective Ramsey’s estimation that the
Defendant could face a sentence of more than one hundred years’ incarceration if convicted
as charged. During his interview, the Defendant asked how long he could expect to be
sentenced if convicted of the charges against him, to which Detective Ramsey responded
that he could receive a sentence of “a hundred years or more,” “if you round everything on
the minimum,” but advised that the Defendant might not be ultimately convicted as
charged. Though this response was likely intimidating, it was also both truthful and given
upon the Defendant’s request. The Defendant was charged in a nine-count sealed
presentment on October 14, 2020, with three counts of incest, two counts of rape, and one
count each of aggravated assault, aggravated sexual battery, rape of a child, and continuous
sexual abuse of a child. If the Defendant was convicted as charged, and assuming that he
was classified as the lowest eligible Range offender and received the minimum sentence
possible for each conviction, he was eligible for three twelve-year sentences for incest, two
twelve-year sentences for rape, a three-year sentence for aggravated assault, an eight-year
sentence for aggravated sexual battery, a twenty-five year sentence for rape of a child, and
an eight-year sentence for continuous sexual abuse of a child. See Tenn. Code Ann. §§ 39-
15-302 (2020), -13-503 (2018), -102 (2018), -504 (2017), -522 (2020), 40-35-112. Thus,
the Defendant was plainly facing a lengthy sentence if convicted as charged, especially if
his convictions were aligned consecutively. “[T]ruthful statements about [a defendant’s]
predicament are not the type of coercion that threatens to render a statement involuntary.”
Smith, 933 S.W.2d at 456 (internal quotation marks omitted) (quoting United States v.
Pelton, 835 F.2d 1067, 1072-73 (4th Cir. 1987)); see also State v. Eddie, No. W2011-
00966-CCA-R3-CD, 2012 WL 2307022, at *12 (Tenn. Crim. App. June 18, 2012) (holding
that an officer’s equivocal statement to the defendant that he could face a lengthy sentence
was not coercive where the defendant was charged with first degree murder).

Relatedly, the Defendant contends that he was coerced into confessing by the
detectives’ continued requests for him to tell the truth. He maintains that proof of the
pressure he felt may be found in his asking the detectives whether his charges could be
reduced to “something less” and his requests for help to avoid spending the rest of his life
in prison. He notes that though he maintained his innocence for nearly an hour, the
detectives told him repeatedly that they were unable to help him “unless he got honest with
them.” These statements do not amount to promises of leniency which could plausibly
compel the Defendant’s subsequent confession. See Kelly, 603 S.W.2d at 728 (holding

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that the Fifth Amendment “condemns only those [confessions] which are compelled by
promises of leniency.”) (quoting Hunter v. Swenson, 372 F. Supp. 287, 300 (W.D. Mo.
1974)). At no point was the Defendant threatened with a greater punishment if he refused
to cooperate with law enforcement. Although the detectives noted that they would speak
to the district attorney’s office on his behalf if he was cooperative during the interview,
they did not promise or guarantee any reduced sentence in exchange for such cooperation.
Further, we conclude that any offers of help the detectives made were equivocations
intended to prompt the Defendant to be truthful, and as such were not coercive. See State
v. McRee, No. W2013-00194-CCA-R3-CD, 2014 WL 168606, at *9 (Tenn. Crim. App.
Mar. 21, 2014) (finding the defendant’s confession voluntary despite equivocal statements
from the interviewing detectives that the defendant’s confession could lead to leniency in
the prosecution of his case).

We conclude that none of the detectives’ statements during the Defendant’s
interview rendered his statement involuntary; accordingly, we cannot agree with the
Defendant’s contention that their combined effect served to overbear his will. The totality
of the circumstances in this case indicates that the Defendant was interviewed in a cordial
setting and gave a voluntary confession following approximately one hour’s worth of
questioning. The trial court did not err in denying the Defendant’s motion to suppress his
confession, and the Defendant is not entitled to relief on appeal on this claim.

B. Admission of the Victim’s Forensic Interview

The Defendant also argues that the trial court erred in admitting the recording of the
victim’s forensic interview. Prior to trial, the State filed a motion to admit the recording,
and the trial court held a hearing thereupon pursuant to Tennessee Code Annotated section
24-7-123(b)(2) on July 5, 2022.°

At the pretrial evidentiary hearing, the victim testified that she was interviewed at
Safe Harbor in July 2020 regarding her allegations against the Defendant. The recording
of her forensic interview was played, and the victim identified herself and Ms. Stith in the
video. She testified that the recording was a true and accurate representation of what she
said during her interview and averred that she did not feel pressured to say anything during
the interview. She maintained that her allegations against the Defendant were true.

Jennie Stith testified that she was a semi-retired forensic interviewer. She estimated
she had performed more than 3,000 forensic interviews during her nearly thirteen years of

6 As with the Defendant’s motion to suppress, the record does not contain a copy of the State’s
motion to admit the recording or any response from the Defendant. However, upon our review of the
transcript, we find the basis of the State’s motion, the Defendant’s arguments in opposition, and the trial
court’s findings of fact and conclusions of law to be sufficiently documented for appellate review.

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employment at Safe Harbor. Ms. Stith stated that she used a system of three cameras and
three microphones placed throughout the interview room to record her questions and the
interviewee’s responses. She described Safe Harbor as a nonprofit organization, identified
its executive director, and noted that it had a memorandum of understanding with law
enforcement. She stated that representatives from Safe Harbor met monthly with a child
protective intervention team and that the facility contained an office for a representative
from the Department of Children’s Services. She also noted that she maintained a file for
each child she interviewed, which she kept in a safe along with the recordings of their
interviews. A copy of Ms. Stith’s curriculum vitae was entered into evidence. Ms. Stith
agreed that the recording was a true and accurate representation of the victim’s forensic
interview.

The State argued that it had satisfied its burden of proving the recording’s
admissibility pursuant to Tennessee Code Annotated section 24-7-123. As relevant to this
appeal, the Defendant argued that admitting the recording would permit the State to present
the victim’s unsworn testimony to the jury. The Defendant asserted that the recording’s
admission would violate the Confrontation Clause and would impermissibly shift the
burden of proof to the defense by requiring the Defendant to disprove the claims the victim
presented.

The trial court admitted the recording, finding that the victim was under the age of
thirteen when the interview took place, that she testified the recording was a true and
accurate depiction of her statements during the interview, and that the victim would be
present and available for cross-examination at trial. The trial court further concluded that
the recording was sufficiently trustworthy, that it satisfied the requirements of Code section
24-7-123(b), and that its admission would not violate the Confrontation Clause because the
victim would be statutorily required to be present at the trial to both authenticate the
recording and be subject to cross-examination.

At trial, the Defendant reiterated his previous objections to the recording’s
admissibility, which the trial court overruled. The State presented the recording through
the victim’s testimony. On direct examination, the victim identified herself and Ms. Stith
in the recording and testified that everything she said during the interview was true. On
cross-examination, the victim clarified that the Defendant’s most recent visit to her home
was during the weekend of July 4, 2020. She twice testified that she was unsure whether
the rape in S.M.’s bedroom or the rape at the new house was the last time she was raped,
and counsel for the Defendant twice asked whether she had lied during the interview.
Counsel for the Defendant then requested a jury-out hearing to discuss the recording’s
admissibility.

oir -
During the jury-out hearing, the Defendant moved for a mistrial, arguing that the
victim had both contradicted herself and admitted she had lied during the interview. The
trial court denied the Defendant’s motion for a mistrial, and the Defendant subsequently
moved to exclude the recording from evidence, arguing it could not be truthful in light of
the victim’s contradictory statements. The trial court denied the Defendant’s motion,
concluding that “this is all a question for the trier of fact.”

On appeal, the Defendant reiterates his argument that admitting the recording
violated his right to confront the victim. He asserts that although the victim testified that
the recording was a true and correct representation of what she said during her forensic
interview, she nevertheless “refused” to answer questions on cross-examination regarding
the details of her allegations. The Defendant posits that this refusal rendered the victim
functionally unavailable for cross-examination. He also argues that the trial court abused
its discretion in admitting the recording because the victim’s contradictory statements
rendered the recording untrustworthy for the purposes of Tennessee Code Annotated
section 24-7-123(b). He further contends that the trial court applied an incorrect standard
of law in denying his motion to exclude the recording because it concluded the question of
the victim’s credibility was “a question for the trier of fact.” We will address these issues
in turn.

1. Confrontation Clause

Generally, this court reviews evidentiary issues under an abuse of discretion
standard. State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014). However, when an evidentiary
issue presents a question of law involving statutory or constitutional interpretation, this
court reviews it de novo with no presumption of correctness. Id.

The Confrontation Clause provides that “{iJn all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI; see also Pointer v. Texas, 380 U.S. 400, 403 (1965) (holding that a criminal
defendant’s right to confrontation under the Sixth Amendment is fundamental and is
applicable to the states via the Fourteenth Amendment). Similarly, the Tennessee
Constitution provides that “in all criminal prosecutions, the accused hath the right to be
heard by himself and his counsel . . . [and] to meet the witnesses face to face.” Tenn. Const.
art. I, § 9. The same constitutional analysis applies to Confrontation Clause claims raised
under either the United States Constitution or the Tennessee Constitution. State _v.
Hutchison, 482 S.W.3d 893, 905 (Tenn. 2016).

The Confrontation Clause thus guarantees the criminal defendant the right to both
physically face witnesses and the right to cross-examine witnesses at trial. State v. Brown,
29 §.W.3d 427, 430-31 (Tenn. 2000). Because “the principal evil at which the

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Confrontation Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused,” Crawford v.
Washington, 541 U.S. 36, 50 (2004), the Confrontation Clause prohibits the admission of
out-of-court testimonial statements “unless the witness appears at trial or, if the witness is
unavailable, the defendant had a prior opportunity for cross-examination,” State v. Dotson,
450 S.W.3d 1, 63 (Tenn. 2014) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309
(2009)). Therefore, the central inquiry in a Confrontation Clause analysis is whether the
challenged statement is testimonial in nature. Dotson, 450 S.W.3d at 63. A statement is
testimonial when its primary purpose is to “establish or prove past events potentially
relevant to later criminal prosecution.” Id. at 64 (citing Davis v. Washington, 547 U.S.
813, 822 (2006). A statement’s primary purpose is determined by looking to “the purpose
that reasonable participants would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the encounter occurred.” Id. at 64.

Statements made by a child in a forensic interview conducted pursuant to Tennessee
Code Annotated section 24-7-123 are testimonial in nature. McCoy, 459 S.W.3d at 15.
Accordingly, when the State seeks to introduce a video recording of a child’s forensic
interview, the child must testify to authenticate the video recording and be subject to cross-
examination at trial. Id. at 16; see also Tenn. Code Ann. § 24-7-123(b)(1).

The Defendant maintains that the victim’s “refusal” to answer his questions
regarding the details of her allegations rendered her functionally unavailable for cross-
examination. This contention is not supported by the record or the law. The Defendant’s
cross-examination spanned more than fifteen pages of transcript and largely focused on the
victim’s allegations during her forensic interview. The victim responded to these
questions, recalling that the Defendant began sexually touching her when she was in
kindergarten or first grade; that the Defendant later began forcing her to perform oral sex
on him; that the Defendant showed her pornographic videos; that the Defendant worked on
“the other side of the state” and that she last saw him prior to trial during his visit over the
weekend of July 4, 2020; that she told S.M. that the Defendant raped her; and that she
subsequently told Ms. Stith of her allegations in a forensic interview. The victim only
testified she was unable to recall whether the Defendant discussed her hygiene with her
during his most recent visit and whether the last time the Defendant raped her was in S.M.’s
bedroom or at the new house. She also stated she did not lie during her forensic interview
and that everything she stated therein was truthful. These responses can hardly be
characterized as “refusals” to answer the Defendant’s questions.

The Defendant nevertheless relies upon this court’s holding in State v. Franklin, 585
S.W.3d 431, 455 (Tenn. Crim. App. 2019), in support of his claim that he was deprived of
the right to confront the victim through cross-examination. The defendant in Franklin
posited that he was “denied his right to confront the victim due to her age and unwillingness

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to discuss the details of the alleged incident at trial” following the introduction of her
forensic interview. Id. Notwithstanding the defendant’s waiver of the issue, the Franklin
court found the Defendant was provided the opportunity to cross-examine the victim and
took ample advantage of that opportunity by asking her 123 questions, which the victim
answered. Id. Although the court noted that the victim was unable to recall certain details
in her responses to the defendant’s questioning, it concluded that the defendant was
presented “the opportunity to bring out such matters as the witness’ bias . . . lack of care
and attentiveness, . .. poor eyesight, and even (what is often a prime objective of cross-
examination) ... the very fact that [she] has a bad memory.” Id. (internal quotation marks
omitted) (citing United States v. Owens, 484 U.S. 554, 558 (1988)).

Thus, while factually similar to the issue sub judice, our holding in Franklin is
inapposite to the Defendant’s argument.’ We disagree with the Defendant’s contention
that the victim “failed to answer almost every question defense counsel asked her in
relation to the elements of the crime”; the victim was simply unable to recall certain
answers to the Defendant’s questions. A witness’s “lack of memory does not render [her]
unavailable for purposes of the [C]onfrontation [C]lause.” State v. Ackerman, 397 S.W.3d
617, 641 (Tenn. Crim. App. 2012), overruled on other grounds by State v. Sanders, 452
S.W.3d 300, 315 (Tenn. 2014). The Defendant’s opportunity to cross-examine the victim
was unfettered, and as in Franklin, he took ample advantage of that opportunity by
presenting the inconsistencies in the victim’s account to the jury. See State v. McMillan,
No. E2020-00610-CCA-R3-CD, 2022 WL 855262, at *13 (Tenn. Crim. App. Mar. 23,
2023) (finding no Confrontation Clause violation despite the victim’s inability to recall
certain details of her allegations because she “was available to testify and, in fact, testified
at trial, subject to cross-examination” and the defendant’s “opportunity to question the
victim was unfettered”); see also State v. Eddins, No. M2006-02315-CCA-R3-CD, 2007
WL 4116490, at *5 (Tenn. Crim. App. Nov. 14, 2007) (noting that questioning the validity
of a witness’s claims “is a valid, and indeed the most essential, purpose of cross-
examination”). This satisfies the Confrontation Clause, and the victim’s inability to recall
certain details of her allegations on cross-examination does not negate that fact. The
Defendant is not entitled to relief on this claim.

2. Abuse of Discretion

The Defendant next argues that the trial court abused its discretion in denying his
trial motion to exclude the recording of the victim’s forensic interview. Although he does
not argue that the trial court erred in its conclusion at the pretrial evidentiary hearing that

7 Because the Franklin court concluded that the defendant had waived his Confrontation Clause
claims, its analysis of those claims notwithstanding waiver is dicta. Nevertheless, we find the court’s
reasoning persuasive and adopt it herein.

-23 -
the video was trustworthy pursuant to Tennessee Code Annotated section 24-7-123(b), he
nevertheless contends that the victim’s “refusal” to testify whether she was last raped in
S.M.’s bedroom or at the new house or whether she lied during her forensic interview
negates the trial court’s finding of trustworthiness. He also argues that the trial court
applied an incorrect legal standard in denying his motion to exclude the recording by
concluding the victim’s credibility was a question of fact.

A trial court’s decision to admit a child’s forensic interview is reviewed for an abuse
of discretion. Franklin, 585 S.W.3d at 448. A trial court abuses its discretion when it
applies an incorrect legal standard, reaches an illogical or unreasonable decision, or bases
its decision on a clearly erroneous assessment of the evidence. McCoy, 459 S.W.3d at 8
(citing State v. Mangrum, 403 S.W.3d 152, 166 (Tenn. 2013)).

As relevant to this appeal, when the State seeks to admit a video recording of a
forensic interview made by a child younger than thirteen years old, the trial court must hold
a pretrial evidentiary hearing to determine whether, “to the reasonable satisfaction of the
court,” the recording possesses particularized guarantees of trustworthiness. Tenn. Code
Ann. § 24-7-123(b)(2). In its analysis, the trial court must consider:

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

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

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

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

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

(F) Whether the statement is spontaneous or directly responsive to questions;
(G) Whether the manner in which the interview was conducted was reliable,
including, but not limited to, the absence of any leading questions;

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

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

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

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

Id. The child or the forensic interviewer who conducted the interview must also testify
under oath “that the offered video recording is a true and correct recording of the events
contained in the video.” Tenn. Code Ann. § 24-7-123(b)(1). The child must also be

available for cross-examination.
-24-
After reviewing the recording of the victim’s forensic interview and hearing
arguments from both parties at the pretrial evidentiary hearing, the trial court concluded
that the recording was admissible pursuant to Tennessee Code Annotated section 24-7-
123(b). In doing so, the trial court concluded that the victim was ten years old when she
made the statements contained in the forensic interview; that she testified at the pretrial
evidentiary hearing that the recording was a true and correct recording of her forensic
interview; and that she would be available for cross-examination. The trial court then made
specific findings regarding the statutorily required guarantees of trustworthiness:

The video recording is shown to the reasonable satisfaction of the
court, in a hearing conducted pretrial, to possess particularized guarantees of
trustworthiness. In determining whether a statement possesses particularized
guarantees of trustworthiness, the court shall consider the following factors:
(A) the mental and physical age and maturity of the child.

The child was just nearly so old that they wouldn’t qualify for this
statute[’s] protection. She’s ten, and I found her to be very articulate and
communicated very well. She struggled some, but who wouldn’t struggle
talking about the event that she claimed to have happened if they indeed
happened. And regardless, though, she communicated. She communicated
her allegations well.

Any apparent motive. No motive has been shown nor testified to that
she might falsify or distort anything.

The timing of the child’s statement. It’s my understanding that that
statement was taken fairly recently in time after she had alerted authorities
of the allegations.

It says the nature and duration of the alleged abuse. It’s her testimony
that it was ongoing for a number of years right up until right before the
interview was taken, because she stated at the time she was ten, and then she
was ten whenever the last incident had taken place.

(E) Whether a child’s young age makes it unlikely that the child
fabricated a statement that represents a graphic, detailed account beyond the
child’s knowledge and experience. Like I said, she’s an older child as far as
this statute is concerned. She’s ten. You can’t use it for one over thirteen.
Nevertheless, I have to disagree with [defense counsel] — and it’s his job to
say she was not clear — I thought she was fairly clear and fairly articulate

-25-
about some of the things, the allegations she made, and graphic and detailed
as the statute says.

Part (F). I thought she was directly responsive to the questions. .. . I
know that we as lawyers were taught about leading questions, and you can
ask leading questions without them being front-ended, but I didn’t even see
that many to — she’s searching for information to talk about a goal here. But
she left them open-ended. This child could have said no, I don’t. You know,
it was a choice. She was asking her what time it was instead of telling her,
“It was five o’clock, wasn’t it,” basically is my point. So I don’t find that
there were leading questions involved in this interview.

Part (H). Whether extrinsic evidence exists to show the defendant’s
opportunity to commit the act complained of in the child’s statement. We’ve
dealt with all kinds of evidence in this case thus far. Not so much today in
this hearing, but these are just factors, and I’m going to find that one also
goes in the State’s favor.

The relationship of the child to the offender. . . . I'll address that the
relationship is a biological father. That’s what the child testified to. I'll leave
it at that.

Whether the equipment that was used to make the video recording was
capable of making an accurate recording. I understood it very well, so there’s
that.

The trial court then concluded that the remainder of the factors required by Tennessee Code
Annotated section 24-7-123(b)(3)-(6) were satisfied and admitted the recording.

The Defendant does not appear to challenge the trial court’s pretrial conclusions
regarding the recording’s satisfaction of the statutorily required guarantees of
trustworthiness, and our review of the record indicates that the trial court properly
considered the evidence received at the hearing, as well as the parties’ arguments, and made
specific findings which were supported by the record in admitting the recording.
Accordingly, we discern no abuse of discretion in its admission of the recording.

Nevertheless, the Defendant maintains that the recording should have been stricken
following his objection that “there was now[] no longer a finding of ‘trustworthiness’
because [the victim] had to have lied . . . [and] because all these statements in the video
cannot be true[.]” Inasmuch as the Defendant intends to claim that the victim’s
contradictory statements in her forensic interview, coupled with her “refus[al] to testify as

26 -
to which location was the last time and exactly when did she lie” during her forensic
interview during cross-examination, somehow overrode the trial court’s pretrial
determination that the recording possessed the statutorily required guarantees of
trustworthiness, we disagree. The Defendant cites to no law, and we are aware of none,
which stands for his proposition. Further, we do not discern any point in the transcript
where the trial court rescinded its pretrial findings of trustworthiness to support the
Defendant’s argument that there was “no longer a finding of trustworthiness,” nor do we
find anything to suggest that the recording as a whole was untrustworthy.

The substance of the Defendant’s argument targets the credibility of the victim’s
statements in her forensic interview and her testimony at trial. He raised these issues during
the jury-out hearing to discuss the recording’s admissibility, moving to strike the recording
because victim’s inconsistent statements and the gaps in her memory indicated her
allegations “can’t be truthful.” The trial court denied this objection, concluding

I’m not disqualifying the video. She stated under [direct-examination] that
she did remember. Like I said, you’re doing your job. You got an answer or
two there that has led to this jury-out. AndI don’t blame you. But I feel this
is all a question for the trier of fact. So she had stated on direct she
remembered this to be as it was, and that everything she said there was
truthful. You’ve done a good job since then. But she said that originally on
direct. Denied.

As the trial court correctly noted, the question of a witness’s credibility is an issue
of fact that the jury must resolve, not the trial court. See State v. McKinney, 669 S.W.3d
753, 773 (Tenn. 2023); see also State v. Lovin, No. E2021-00705-CCA-R3-CD, 2022 WL
3078579 (Tenn. Crim. App. Aug. 3, 2022) (holding that though the victim’s statements in
her forensic interview “lacked clarity, there was nothing to suggest that the interview as a
whole was not trustworthy, and the trial court properly concluded that the jury, in its
determination of credibility, could take into account any lack of clarity in the victim’s
individual statements.”). Therefore, we find no abuse of discretion either in the trial court’s
decision to admit the recording or in its denial of the Defendant’s motion to exclude the
recording at trial. The Defendant is not entitled to relief on this claim.

C. Sufficiency

The Defendant also challenges the sufficiency of the convicting evidence for each
of his convictions. He maintains that the recording of the victim’s forensic interview
should have been excluded and that without this proof, there is no proof to support his
conviction of aggravated sexual battery and “little to no proof” to support his convictions

-27-
of rape of a child and incest.’ The State responds that the evidence adduced at trial was
sufficient to sustain each conviction.

The standard of appellate review for a defendant’s challenge to the sufficiency of
the convicting evidence is deferential to the jury’s verdict. State v. Lyons, 669 $.W.3d
775, 791 (Tenn. 2023). This court reviews such challenges in the light most favorable to
the State and if, after drawing all reasonable inferences from the evidence adduced at trial
in the State’s favor, it appears that “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt,” sufficient evidence exists to support the
jury’s verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011). “A guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts [in
the evidence] in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Thus, in
reviewing the sufficiency of the evidence, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the trier of fact, Dorantes, 331 S.W.3d at
379, as the jury’s verdict of guilty resolves “questions regarding witness credibility, the
weight to be given the evidence, and factual issues raised by the evidence,” McKinney,
669 S.W.3d at 773 (citing State v. Majors, 318 S.W.3d 850, 867 (Tenn. 2010)). The
defendant bears the burden of proving the insufficiency of the convicting evidence on
appeal. State v. Thomas, 687 S.W.3d 223, 249 (Tenn. 2024) (citing State v. Chambers, 35
S.W.3d 516, 557-58 (Tenn. 2000)).

As relevant to this appeal, aggravated sexual battery is “unlawful sexual contact
with a victim by the defendant . . . [and] the victim is less than thirteen (13) years of age.”
Tenn. Code Ann. § 39-13-504(a)(4). Sexual contact is the intentional touching of “the
victim’s, the defendant’s, or any other person’s intimate parts . . . if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” Tenn. Code Ann. § 39-13-501(6).

The sum of the Defendant’s challenge to this conviction is that the evidence is
insufficient to sustain it without the recording of the victim’s forensic interview, which he
maintains was inadmissible. However, when reviewing the sufficiency of the convicting
evidence, this court considers all the evidence presented at trial, regardless of whether it
was properly admitted. State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981); see also
State v. Murray, No. M2021-00688-CCA-R3-CD, 2022 WL 17336522, at *5 (Tenn. Crim.
App. Nov. 30, 2022) (“[E]ven if we concluded that the [evidence] should not have been
admitted, [it was] admitted at trial, and [its] inclusion into the sufficiency of the evidence

8 We address the Defendant’s challenge to the sufficiency of the convicting evidence in the context
of his challenge to the State’s election of offenses below.

- 28 -
calculus is not affected by whether this evidence should have been inadmissible.”). Thus,
the Defendant’s argument as it relates to this conviction is unavailing.

Notwithstanding the Defendant’s failure to otherwise argue that the State failed to
prove any essential element of the charge of aggravated sexual battery, we note that the
evidence was sufficient to sustain the conviction. The indictment in this case charged the
Defendant with aggravated sexual battery occurring “on or about a day in 2017.” In her
July 19, 2020, forensic interview, the victim stated that she was presently ten years old and
in the fourth grade, and that the Defendant first began forcing her to touch his penis when
she was in kindergarten or first grade, approximately three years prior. This proof is
sufficient to sustain the jury’s verdict, and the Defendant is not entitled to relief on this
claim.

D. Election of Offenses

The Defendant also challenges the sufficiency of the convicting evidence for his
convictions of rape of a child and incest. He reiterates that the recording of the victim’s
forensic interview should have been excluded and that without this recording, there is “little
to no proof” to support these convictions. He also notes that the victim described two
separate rapes as the last time she was raped during her forensic interview and that she was
unable to recall which instance was the last time during cross-examination in support of
his argument that the evidence is insufficient because “[t]here cannot be two different last
times at two different locations[.]”

Within the Defendant’s latter claim, we perceived a related challenge: whether the
State’s election of offenses was sufficient to protect the Defendant’s constitutional right to
a unanimous jury verdict on the charges of rape of a child and incest. Although not raised
by the parties, this issue is related to our consideration of the sufficiency of the convicting
evidence. This court has discretion “to consider unpresented or unpreserved issues in
certain exceptional circumstances,” including “(1) to prevent needless litigation, (2) to
prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial
process.” State v. Bristol, 654 S.W.3d 917, 926-27 (Tenn. 2022) (citing Tenn. R. App. P.
13(b)). The Rules of Appellate Procedure also provide that this court “shall grant the relief
on the law and facts to which the party is entitled or the proceeding otherwise requires.”
Tenn. R. App. P. 36(a). However, this court “must give the parties fair notice and an
opportunity to be heard on the dispositive issues” when it considers an issue not properly
presented. Bristol, 654 S.W.3d at 927 (quoting State v. Harbison, 539 S.W.3d 149, 165
(Tenn. 2018)). This requirement is typically satisfied through supplemental briefing.
Bristol, 654 S.W.3d at 928. Accordingly, we ordered supplemental briefing to address this
issue to help inform our review of the Defendant’s challenges to his convictions of rape of
a child and incest.

-29-
In supplemental briefing, the Defendant asserts that the State failed to elect any
offense in its prosecution on the charges of rape of a child and incest. The State responds
by questioning whether an election of offenses was required but nevertheless asserting that
it made a proper election by specifying that the rape occurred in “July of 2020” during its
closing arguments.

Though the Defendant objected to the State’s election of offenses at trial, he did not
raise the issue in his motion for new trial, nor did he present it to this court prior to our
order for supplemental briefing. Consequently, our review is limited to plain error review.
Tenn. R. App. P. 36(b) (“When necessary to do substantial justice, an appellate court may
consider an error that has affected the substantial rights of a party at any time, even though
the error was not raised in the motion for a new trial or assigned as error on appeal.”); see
also State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015) (“Because the election
requirement safeguards a criminal defendant’s fundamental, constitutional right to a
unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election
are subject to plain error review.”) Under plain error review, relief will only be granted
when all five of the following prerequisites are met:

(1) the record must clearly establish what occurred in the trial court; (2) a
clear and unequivocal rule of law must have been breached; (3) a substantial
right of the accused must have been violated; (4) the accused must not have
waived the issue for tactical reasons; and (5) consideration of the error is
necessary to achieve substantial justice.

State v. Rimmer, 623 S.W.3d 235, 255-56 (Tenn. 2021) (citing State v. Martin, 505 S.W.3d
492, 504 (Tenn. 2016). If any one of these factors is not satisfied, this court need not
consider the remaining factors. State v. Smith, 492 S.W.3d 224, 232 (Tenn. 2016). The
defendant bears the burden of persuasion to show that he is entitled to plain error relief.
State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007). Additionally, the plain error must
have been of such magnitude that it probably changed the outcome of the trial. Smith, 492
S.W.3d at 232 (citing State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010)).

The record in this case includes the recording of the victim’s forensic interview as
well as the transcript of the trial, which includes the parties’ closing arguments. The first
element of plain error review is therefore satisfied, and we will proceed to consider whether
a clear and unequivocal rule of law was breached. Smith, 492 S.W.3d at 232.

The Tennessee Constitution provides that criminal defendants have a fundamental
right to a unanimous jury verdict on the charges against them. State v. Rickman, 876
S.W.2d 824, 828 (Tenn. 1994) (citing Tenn. Const. art. I, § 6); see also State v. Shelton,

= 20 =

851 S.W.2d 134, 137 (Tenn. 1993) (“Although the federal constitution’s requirement of
unanimity among jurors has not been imposed on the states through the Fourteenth
Amendment, there should be no question that the unanimity of twelve jurors is required in
criminal cases under our state constitution.”). This guarantee is usually satisfied due to the
“general rule that evidence the defendant has committed some other crime wholly
independent of that for which he is charged, even though it is a crime of the same
character[,] is generally excluded as irrelevant.” State v. Qualls, 482 S.W.3d 1, 9 (Tenn.
2016) (internal quotation marks omitted) (citing Rickman, 876 S.W.2d at 827; Tenn. R.
Evid. 404(a), (b)). However, when the State presents “proof of multiple instances of
conduct that each match the allegations contained in a single charged count, the State, at
the close of its case-in-chief, must elect the distinct conduct about which the jury is to
deliberate in returning its verdict on the relevant count.” Smith, 492 S.W.3d at 232-33
(collecting cases).

Election issues often arise in the context of prosecutions for sexual crimes
committed against children, particularly when the defendant is charged with committing
the offenses over a long period of time and the young victim is “unable to identify the exact
date on which any one act was perpetrated.” State v. Johnson, 53 $.W.3d 628, 631 (Tenn.
2001) (collecting cases). In cases where an indictment charges that such crimes occurred
in a “general time frame[] that encompass[es] several months[,]” “the State may introduce
evidence of sex crimes allegedly committed against the victim during the time frame
charged in the indictment, but, at the close of the proof, the State must elect the facts upon
which it is relying for conviction.” Id, (citing Rickman, 876 S.W.2d at 829); see also
Shelton, 851 S.W.2d at 137 (“A defendant’s right to a unanimous jury before conviction
requires the trial court to take precautions to ensure that the jury deliberates over the
particular charged offense, instead of creating a patchwork verdict based on different
offenses in evidence.”) (internal quotation marks omitted) (citing State v. Brown, 823
S.W.2d 576, 583 (Tenn. Crim. App. 1991)).

The State may elect an offense in a variety of ways, such as by eliciting testimony
from the victim which narrows the offense to a specific month, identifies a particular type
of offense, or else associates the date of the offense to a meaningful or specific event in the
victim’s life. Qualls, 482 S.W.3d at 10-11 (citing State v. Walton, 958 S.W.2d 724, 727
(Tenn. 1997); Shelton, 851 S.W.2d at 138; State v. Herron, 461 S.W.3d 890, 904 (Tenn.
2015); State v. Brown, 992 S.W.2d 389, 392 (Tenn. 1991); Tidwell v. State, 922 S.W.2d
497, 499 (Tenn. 1996)). When the State presents this specific evidence of “distinguishable
criminal acts,” then it “must elect the specific act for which it seeks conviction in a manner
that identifies the prosecuted offense for the jury.” Qualls, 482 S.W.3d at 16 (citing
Shelton, 851 S.W.2d at 138). However, in cases involving generic evidence, such as when
a victim describes multiple instances of similar acts of abuse occurring over a long period
of time but is unable to differentiate the offenses or otherwise relate them to a specific date

-31-

or life event, the criminal defendant’s right to a unanimous jury verdict is protected via the
trial court’s providing a modified unanimity instruction.? Qualls, 482 S.W.3d at 17.

In her forensic interview, the victim presented both generic and specific evidence
of her abuse. She testified generally that the Defendant would touch her breasts and
digitally penetrate her vagina, noting that his fingernails “would scratch in[side] me”; that
the Defendant would force her to touch his penis and perform oral sex on him; and that
these encounters occurred every one or two weeks, usually when S.M. was away from
home or in the bathroom. She stated the abuse began when she was in kindergarten or first
grade and continued until the Defendant’s most recent visit. The victim also recalled
several specific instances in which the Defendant sexually touched her. For example, she
stated the Defendant first inappropriately touched her when she was in kindergarten or first
grade and that he forced her to touch his penis under the covers, the incident giving rise to
the Defendant’s conviction for aggravated sexual battery.

During the victim’s forensic interview, Ms. Stith asked the victim whether she could
recall the last time the Defendant sexually abused her. The victim responded that it
occurred “the last time he came to visit.” Though she did not know precisely when this
visit occurred, she stated that she was ten years old and that it was “like last month,” though
she noted she did not “really check the months.” She noted that the Defendant was “staying
the weekend” during this visit and that it only happened “one time that weekend.” She
described this event as taking place in S.M.’s bathroom while S.M. was in the bath. She
stated the Defendant forced her to perform oral sex during this encounter and “put his hand
on [her] head and just kept on holding [her] head there.” She stated they were both clothed.

Following the victim’s request for a break in the interview, Ms. Stith asked the
victim again about the last time the Defendant sexually abused her. The victim responded
that S.M. “was in the bath,” and the victim and the Defendant were in S.M.’s bedroom.
Ms. Stith then asked the victim whether the Defendant had ever sexually abused outside
their home, and the victim recalled that on one occasion, she accidentally broke the
Defendant’s “controller.” The Defendant informed the victim that they would “go on a
ride” and that he would “talk to [her] about it.” The Defendant took the victim inside the
new house and “did the same thing as before,” which she clarified meant that the Defendant
“touched [her] and made [her] touch him and stuff.” The victim described the location of
the new house but noted she did not know its address. Ms. Stith asked if this was the last
time she was sexually abused, and the victim agreed that it was. Later, Ms. Stith asked the

9 As stated in Qualls, this modified unanimity instruction requires that in generic evidence cases,
the trial court must inform the jury that it “must unanimously agree that the State has proven beyond a
reasonable doubt the commission of all of the acts described by the alleged victim” occurring within the
timeframe charged in the indictment. Qualls, 482 S.W.3d at 17; see also 7 Tenn. Prac. Pattern Jury Instr.
T.P.I.—Crim. 42.25(a).
-32-
victim if the Defendant had ever inserted “any other part of his body” inside the victim,
and the victim recalled that at the new house on “the last time it happened,” the Defendant
tried to insert his penis in her vagina. She was unsure whether it entered her vagina but
stated that it hurt.

At trial, the victim testified on direct examination that everything she stated in the
interview was true on direct examination. During cross-examination, defense counsel
extensively questioned the victim regarding which encounter was the last time the
Defendant sexually abused her:

Q: Okay. When Ms. [Stith] asked you the first time about the last time it

happened, which was some time at the end of June or somewhere in that time

frame, correct?

Yes.

You said it was in your mom’s room in the master bedroom, correct?
Yes.

Okay. Is that where it happened?

The first time?

The last time.

The last time it happened?

Yes.

> QO FP DOD F BP F D2 F

I don’t remember.

Q: ... [T]hat concerns me that you don’t remember anything about the
last time, because [the State] just asked you a couple of minutes ago about
watching that video, correct?

A: Yes.

Q: And he asked you if everything you said was true, and you said yes.
Do you remember that?

- 33 -
Yeah.
But you don’t remember the last time now?
I don’t remember it today, no.

You don’t remember it today?

zr QO F QO PF

It’s fuzzy. I’m sorry.

Q: Okay. If you don’t remember it today, how do you know you were
telling the truth?

A: — I don’t remember it today, but everything else that I do remember
from that video is the truth and the whole truth.

Q: Okay. So you said you remember the other stuff on there is the truth
and the whole truth, correct?

A: Yes.

Q: [Ms. Stith] talked to you about two or three different times about the
last time, correct?

A: Yes.

Q: And each time before that little break you said the last time was in
[S.M.]’s bedroom while she was in the bathroom. Do you remember seeing
that?

A: Yes.

Q: | Okay. And then after the break Ms. [Stith] comes back into the room
and starts talking to you — let me make sure I don’t say it wrong. So she
came back from the break and she says, [“]I have a few more questions for

you.[”] Do you remember when she said that on the video?

A: Yes.

-34-
Q: — And she says again, it’s about the fourth or fifth time, let’s talk about
the last time. Okay?

A: — Okay.
Q: You remember that, right?
A: Yes.

Q: She says, [“]Where was it at?[”] And you said, “[I]n her bedroom.
Mom was in the bath.[”] You said that for about the third or fourth time,
correct?

A: Yes.

Q: Okay. Then Ms. [Stith] asked you, [“]Anywhere else?[”] And you
were like, [“]What do you mean?[”] [“JLike in another house,[”] is what
[Ms. Stith] asked you. And then for the first time in about forty-five minutes
you said, [“]JOh, one time we took a ride and went by the new house and he
did something.[’’] Do you remember saying that?

A: Yes.

Q: — And she then followed up and says, [“]What happened at the new
place?[”] And you said, [“JHe touched me. I touched him, and he tried to
put it in me.[”] Right?

A: Yes.

Q: Okay. You didn’t describe to her if your clothes [were] on or off, is
that correct?

A: Yes.

Q: You didn’t describe to her if [the Defendant]’s clothes are on or off,
is that correct?

A: Yes.

Q: And then you say, after all that, you describe the terms with great
detail about how to get to the house, you said that was the last time, correct?

-35-
A:

Q:

Yes.

So It can’t be the truth if the last time was at [the new house] if you

told Ms. [Stith] four different times the last time was in the bedroom, correct?

A!

PrP O F

Q:

Yes.

So which time did you lie to Ms. [Stith]?

I don’t know.

You don’t know which time you lied to Ms. [Stith]?

At [the new house] was one of the last times it happened.

Okay. You just made a comment, and I want to make sure |

understand it because I don’t want to put words in your mouth, but you just
said that one of the last times was at [the new house], correct?

PF DO F QD FS

Yes.

When was the last time?
I don’t remember.

You don’t remember.

It was either at [the new house] or at home in [S.M.]’s bedroom,

because that’s where it usually happened.

Q: You did this interview and said the date up there was July 19, 2020,
correct?
A: Yes.

- 36 -
Q: And you state that the last time was within the last month, possibly
the Fourth of July weekend, correct?

A: Yes.

Q: So you’ve got July 19th, and the Fourth of July weekend, you’re
talking two or three weeks difference in time, correct?

A: Yes.

Q: Okay. And you’re telling this jury that you did not recall the last time
at [the new house] until Ms. [Stith] asked you if there was another house, and
there would have been two or three weeks difference in time, correct?

A: Yes.

Q: — That’s what you’re asking this jury to believe, correct?

A: Yes.

Q: Okay. And you would agree with me that there can only be one last
time, correct?

A: Yes.

Q: If it’s at [the new house], it can’t be at [S.M.]’s, correct, at the
bedroom?

A: Yes.

Q: Let me ask you this: Did you ever lie to Ms. [Stith]?
A: No.
The Defendant subsequently moved for a mistrial and requested that the trial court strike

the recording of the victim’s forensic interview from the record, both of which the trial
court denied.

ay) =
At the conclusion of the State’s proof, the Defendant moved to compel the State to
“make an election on dates and charges that are going forward in front of the jury so [he
could] make a proper argument.” The State responded that “the indictment speaks for
itself,” contending that the victim “was very clear that on or about a day in the summer of
2020, her father performed a sex act on her. And then on or about a day in the summer of
2020, her biological father performed that sex act on her[,] which would equate to the incest
charge.” The Defendant maintained that the victim had not testified to any such dates and
again moved for the recording of her forensic interview to be stricken due to the victim’s
inconsistent statements regarding the last time she was raped, which he later noted that he
“presume[d]” occurred during the Defendant’s visit over the weekend of July 4, 2020. The
State maintained that the recording of the victim’s forensic interview established the dates
and that “[i]f the jury’s allowed to do simple addition and subtraction, they would learn
that those dates fit.” The trial court denied the Defendant’s motion to compel an election
of dates, holding that it was “not making the State elect any further than they have already
in the indictment based on [the victim’s] testimony. It is a question of fact.” The trial court
provided a standard jury instruction on the State’s burden of electing an offense for the
charged crimes which tracked the pattern jury instruction. See 7 Tenn. Prac. Pattern Jury
Instr. T.P.I—Crim., 42.25(a).

The State thus presented proof of two specific instances of sexual penetration upon
which the jury could have rendered a verdict of guilty on a charge of rape of a child: oral
sex occurring in S.M.’s bedroom while S.M. was in the bath and vaginal penetration at the
new house. The victim also averred in her forensic interview that both episodes occurred
during the Defendant’s most recent visit to her home, which she testified at trial was during
the weekend of July 4, 2020. The State nevertheless maintains that no election was
required because “when viewed in the broader context of the record,” the rape described
as occurring in §.M.’s bedroom likely occurred around the time the Defendant moved out
of S.M.’s home in spring of 2018. In support of this argument, the State notes that much
of the évidence the victim presented of her sexual abuse was general and occurred on a
regular basis, approximately once every one to two weeks. In light of the uncontroverted
proof that the Defendant moved out of the home in spring of 2018, the State dates the
majority of the abuse the victim described as occurring between 2017, when the victim was
in either kindergarten or first grade, and the spring of 2018. The Defendant also agreed to
this timeframe and confessed to digitally penetrating the victim before he moved away in
spring of 2018.

The State argues that the rape at the new house was “the only offense that clearly
occurred within the summer of 2020” and contends that the victim was unable to identify
“when the last incident in [S.M.]’s bedroom occurred.” This argument is not supported by
the record. The victim clearly stated in her forensic interview that the Defendant last
sexually abused her during his most recent visit to her home, which she testified at trial

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was during the weekend of July 4, 2020. Both the Defendant’s and S.M.’s testimonies
confirm that the only time the Defendant visited the victim during this timeframe was over
the weekend of July 4, 2020. Though the victim averred that the rape could have occurred
a month before her July 19, 2020, forensic interview, she also admitted that she did not
check the months. Additionally, the State correctly notes that the victim’s description of
when the Defendant moved out was inaccurate; the victim during her forensic interview
stated the Defendant moved out approximately one month before. However, this detail is
not pertinent to the victim’s description of two specific instances of rape, both of which
she stated occurred during the Defendant’s visit over the weekend of July 4, 2020.

The State also posits that the victim was “certain” by the conclusion of her forensic
interview that the rape at the new house was the last time the Defendant sexually abused
her. This, too, is contrary to the record; the victim never disavowed her previous statement
that the rape in S.M.’s bedroom was the last time, she merely described that rape at the new
house as an additional last time. Further, she testified on cross-examination that she was
unable to remember whether the rape in S.M.’s bedroom or the rape at the new house was
the last time. Therefore, because the Defendant was charged with a single count of rape of
a child occurring on a day in the summer of 2020, and because the State presented specific
evidence of two offenses of sexual penetration that the victim described as occurring during
the charged timeframe, an election was required to specify which instance of rape the State
intended to rely upon at trial. In fact, the ambiguity surrounding the victim’s descriptions
of her rapes increased the need for a specific election of an offense in this case.

Having concluded that an election was required, we must now consider whether
there was an election and, if so, whether it was sufficient. The indictment in this case
charged the Defendant with a rape occurring on a day in summer of 2020. Following the
Defendant’s motion to compel an election, the State maintained that “the indictment speaks
for itself,” and the trial court instructed the jury to consider whether the State had proven
beyond a reasonable doubt that the Defendant had committed the rape “as charged in the
presentment.” The State also notes that it clarified during its closing arguments that the
Defendant’s abuse concluded in “July of 2020.” As pertinent here, the State presented the
following closing argument:

[The Defendant] stands before you charged with aggravated sexual
battery, continuous sexual abuse of a child, rape of a child, and incest.

The State would submit, this was a man, [the Defendant], who the
State would submit is one of the most self-serving men I’ve ever been in the
presence of. Everything he’s done through the course of this case from start

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to finish, raped his daughter. That served no one but him. Talking to the
officers, deciding okay, you know, this is looking real bad, I better get the
best deal I can. That didn’t serve anybody but [the Defendant].

You’ve heard the testimony of [the victim], now a twelve-year-old
little girl[,] but at the time[, she] was ten. Very vividly, in 2020 [she] sat
down with [Ms.] Stith at [Safe Harbor] and laid out what all horrible things
her father had done to her from the time she was in kindergarten to first grade,
which finally ended in July of 2020.

She described with great detail the things that her father was doing to
her. Why would a ten-year-old little girl know these things[?] The State
would submit to you she knows these things because they’ve been done to
her. There’s no reason for a ten-year-old child to know that white stuff comes
out of the tip of a man’s penis. The State would submit to you she knows
that because this man did it to her. .

The remainder of the State’s closing argument focused on the Defendant’s confession,
contending that his will was not overborne by the detectives such that he rendered a false
confession. In his closing arguments, the Defendant raised his arguments regarding the
victim’s inability to remember certain details about her sexual abuse, and the State
responded to these claims and argued again that the Defendant’s confession was truthful
during rebuttal arguments.

Because the victim alleged that both rapes occurred during the Defendant’s visit
over the weekend of July 4, 2020, neither the election of “a day in summer of 2020” as
charged in the indictment or the State’s clarification of “July of 2020” were sufficient to
protect the Defendant’s right to a unanimous jury verdict. See Brown, 992 S.W.2d at 392
(finding the State’s election insufficient where it “simply narrowed the time-frame of the
charged offense from the period alleged in the indictment” rather than attempting to
“clarify the victim’s testimony, or clarify the conflicts in the testimony.”). The State simply
did not do enough to indicate to the jury whether it should consider the rape in S.M.’s
bedroom or at the new house in its deliberation on the single charge of rape of a child. The
State, therefore, failed to elect a specific episode of rape it intended the jury to consider
during its deliberations. Accordingly, a clear and unequivocal rule of law was breached.
Smith, 492 S.W.3d at 236.

The third requirement for plain error review is whether one of the Defendant’s
substantial rights was adversely affected by the breach of the clear and unequivocal rule of
law. Rimmer, 623 S.W.3d at 255-56. As noted above, the requirement that the State make

- AQ -

an election serves to protect the defendant’s fundamental right to a unanimous jury verdict.
Smith, 492 S.W.3d at 236; Rickman, 876 S.W.2d at 828; Shelton, 851 S.W.2d at 137. The
Tennessee Supreme Court has held that election errors are non-structural constitutional
errors. Smith, 492 S.W.3d at 236 (citing Qualls, 482 S.W.3d at 18-20; State v. Rodriguez,
254 §.W.3d 361, 371 (Tenn. 2008)). Non-structural constitutional errors are subject to a
harmless error analysis which “requires reversal unless the State demonstrates beyond a
reasonable doubt that the error is harmless” and did not contribute to the verdict obtained.
Rodriguez, 254 $.W.3d at 371.

Although the State’s failure to make an election constitutes error, that error may be
harmless in certain cases. For example, in Qualls, the Tennessee Supreme Court concluded
that any error in the State’s failure to make an election in a generic evidence case was
harmless because “the record on appeal demonstrate[d] beyond a reasonable doubt that by
convicting the defendant, the jury expressed its unanimous conclusion that the victims were
credible and that the defendant committed all the acts described by the victims.” Qualls,
482 S.W.3d at 19. Further, the appellate courts may look to a prosecutor’s statements
during closing arguments to determine whether the State clarified its election by drawing
the jury’s attention to a specific incident to be considered during deliberations, though such
statements are not, standing alone, dispositive of harmless error. Smith, 492 S.W.3d at
237-38; see also State v. Breeden, No. E2019-00983-CCA-R3-CD, 2020 WL 5638589, at
*11 (Tenn. Crim. App. Sept. 21, 2020). Where the circumstances of the proof indicate that
there is “no reasonable likelihood that some of the jurors may have convicted the
[djefendant based on [the victim’s] vague and generalized assertions that” she was raped
on “other, unspecified occasions,” the State’s failure to make an election may be harmless
beyond a reasonable doubt. State v. Fields, No. W2018-02014-CCA-R3-CD, 2020 WL
5015902, at *10 (Tenn. Crim. App. Aug. 25, 2020). Conversely, this court has held that
the failure to make an election is not harmless even when the jury accredited the victim’s
testimony and rejected the Defendant’s theory of the case. State v. Kendrick, 38 S.W.3d
566, 569 (Tenn. 2001) (citing Shelton, 851 S.W.2d at 138; Tidwell, 922 S.W.2d at 501).

In State v. Clabo, 905 S.W.2d 197 (Tenn. Crim. App. 1995), the defendant was
charged and convicted of two counts of aggravated sexual battery and one count of
aggravated rape. At trial, the State presented proof over the defendant’s objection that the
defendant performed both oral and anal sex upon the victim, both of which were sufficient
to prove sexual penetration. Id. at 205. Accordingly,

The court presented to the jury the proof and allegations of two acts and asked
the jury if the defendant could be convicted of one count of this act.
Therefore, some jurors could have concluded that the defendant was guilty
based upon the proof of the oral sex and not the anal sex, and some jurors
could have concluded that the defendant was guilty based upon the proof of

-Al-
the anal sex and not the oral sex. The defendant may have been convicted of
a jury of less than twelve[]. Since all twelve[] members did not have to find
the same facts or draw the same conclusions, we find that a grave
constitutional error was committed in that the defendant may have been
denied a unanimous jury verdict.

Id. This court further noted that the error was not harmless because the State argued that
the defendant had committed both specific acts, the trial judge instructed the jury to rely
upon the parties’ arguments, and “[t]he jury instructions defined sexual penetration as
including fellatio and anal intercourse.” Id.

In this case, the trial court permitted the State to present proof of two instances of
rape of a child over the Defendant’s objection, and the evidence adduced at trial was
sufficient to sustain the Defendant’s singular conviction based upon either scenario. The
victim described one instance of rape as the Defendant forcing her to perform oral sex upon
him in S.M.’s bedroom while S.M. was in the bath, and fellatio is statutorily identified as
a form of sexual penetration sufficient to sustain a conviction of rape. See Tenn. Code
Ann. §§ 39-13-522 (2020), -501(7) (2020). The victim described another instance of rape
as the Defendant taking her to the new house and attempting to put his penis inside her
vagina. Although the victim was unsure whether the Defendant penetrated her vagina, she
noted that his attempts to do so hurt, and proof of even the slightest penetration is sufficient
to sustain a conviction for rape of a child. Hart v. State, 21 S.W.3d 901, 905 (Tenn. 2000)
(“[T]here is . . . sexual penetration in a legal sense if there is the slightest penetration of the
sexual organ of the female by the sexual organ of the male.”) (internal quotation marks
omitted) (citing Walker v. State, 273 S.W.2d 707, 711 (1954)); see also State v. Patrick,
No. M2019-02026-CCA-R3-CD, 2021 WL 2102914, at *9 (Tenn. Crim. App. May 25,
2021) (finding sufficient evidence to sustain a defendant’s conviction of rape of a child
where the victim testified the defendant “tried” to penetrate her anus “but was not
successful.”). As in Clabo, the trial court defined sexual penetration for the purposes of
the jury’s consideration of the charge of rape of a child as including both sexual intercourse
and fellatio, and the State during closing arguments did not specify upon which act it
intended the jury to consider, noting simply that the Defendant perpetuated a series of
abuses against the victim, that he raped her, and that the abuse concluded in July of 2020.
Having already concluded that the State’s failure to elect a specific offense was error, we
further conclude that the State did not remedy this error during closing arguments by
drawing the jury’s attention to a specific instance of conduct. Smith, 492 S.W.3d at 237-
38; Brown, 992 S.W.2d at 392; Breeden, 2020 WL 5638589, at *11.

Indeed, we discern nothing in the record to support the State’s argument that it
sufficiently clarified one particular instance of conduct for the jury to consider in its
determination. Inasmuch as the State intends to argue that any error was harmless because

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the rape at the new house was the only instance of sexual penetration which “clearly
occurred within the summer of 2020” because the victim was unable to identify when the
rape in S.M.’s bedroom occurred with precision, we disagree for the reasons noted above
and because that argument was not presented to the jury to ensure each member based its
verdict on the same instance of conduct. Particularly in light of the victim’s uncertainty,
the State should have done more to delineate for the jury which instance of rape the State
intended it to consider, and its failure to do so left some members of the jury free to convict
the Defendant of rape based on fellatio occurring in $.M.’s bedroom and others free to
convict the Defendant of rape based on vaginal penetration occurring at the new house.
Clabo, 905 S.W.2d at 205.

Accordingly, the Defendant’s right to a unanimous jury verdict was adversely
affected, and the third requirement for plain error review is satisfied. There is no indication
in the record to support a conclusion that the Defendant waived this issue for tactical
purposes, and we can fathom no reason why he would do so, so the fourth requirement for
plain error review is also satisfied. Smith, 492 S.W.3d at 238-39 (“This court has held that
an absence of indicia in the trial record that a defendant has waived an issue for tactical
reasons is sufficient to satisfy this criterion of plain error.”) (citing State v. Gomez, 239
S.W.3d 733, 742 (Tenn. 2007); State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010)
(quotations omitted)); see also State v. Guin, No. E2022-00391-CCA-R3-CD, 2023 WL
8675582, at *7 (Tenn. Crim. App. Dec. 15, 2023), perm. app. denied (Tenn. May 16, 2024)
(“[W]e can think of no tactical reason for the defendant to waive the State’s obligation to
elect offenses.”). Finally, because the Tennessee Constitution fundamentally guarantees
the criminal defendant the right to a unanimous jury verdict, consideration of this error is
necessary to do substantial justice, so the fifth requirement for plain error is satisfied. We
conclude that the State erred by not specifically electing an offense in this case as it related
to the Defendant’s prosecution for the charges of rape of a child and incest, and the trial
court’s failure to require an election constituted plain error. The Defendant’s convictions
for rape of a child and incest must be reversed, and he is entitled to a new trial.

D. Sentencing

Lastly, the Defendant argues that his effective sentence of fifty-two years’
incarceration is excessive, contending that the trial court failed to accord sufficient weight
to his mitigating proof. The State responds that the trial court did not abuse its discretion
in imposing within-range sentences. Although we herein reverse the Defendant’s
convictions of rape of a child and incest, we nevertheless will analyze the substance of his
claim as it applies to each of his convictions in the event of further appellate review.

This court reviews sentencing determinations under an abuse of discretion standard.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Additionally, so long as the trial court

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imposes a sentence “within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles” of the Sentencing
Act, the trial court’s decision will be afforded a presumption of reasonableness. Id. These
purposes and principles include imposing a sentence which is no greater than is justly
deserved in relation to the seriousness of the offense. See Tenn. Code Ann. §§ 40-35-
102(1), 40-35-103(2); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). While
“the sentence imposed should be the least severe measure necessary to achieve the purposes
for which the sentence is imposed,” it should also serve as an effective deterrent to those
likely to violate the law. Tenn. Code Ann. §§ 40-35-102(3)(A), 40-35-103(4).

In fashioning a defendant’s sentence, the trial court must consider: (1) the evidence
adduced at trial and presented at the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and any arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors listed in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses; (7) any
statement the defendant wishes to make in the defendant’s own behalf about sentencing;
and (8) the result of the validated risk and needs assessment conducted by the Tennessee
Department of Correction and contained in the presentence report. Tenn. Code Ann. § 40-
35-210(b). The trial court is not required to make particularly detailed or lengthy findings;
it is sufficient that the trial court “set forth enough to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis” for imposing the sentence.
Bise, 380 S.W.3d at 705-06 (citing Rita v. United States, 551 U.S. 338, 356-57 (2007)).

A trial court’s error in the application of an enhancement or mitigating factor will
not invalidate a defendant’s sentence nor remove the presumption of reasonableness unless
it appears from the record that the trial court wholly departed from the purposes and
principles of the Sentencing Act. Bise, 380 S.W.3d at 707. In other words, a trial court’s
imposition of a within-range sentence will be upheld even in light of its misapplication of
an enhancement or mitigating factor so long as there are other reasons consistent with the
purposes and principles of the Sentencing Act. Id. The trial court is afforded discretion in
its weighing of the enhancement and mitigating factors during sentencing, and a
defendant’s disagreement with the weight accorded these factors is not a valid ground for
appeal. Id. at 706.

We first note that the Defendant’s brief requests that we review the trial court’s
sentencing determination de novo with a presumption of correctness. This argument
erroneously relies upon the pre-Bise standard of review for sentencing determinations.
Today, we review a trial court’s sentencing determinations for abuses of discretion and, so
long as the trial court sentences the defendant within the appropriate range and properly

-44-
applies the purposes and principles of the Sentencing Act, its decision is presumptively
reasonable. Id. at 707; see also State v. Treadway, No. E2024-00608-CCA-R3-CD, 2025
WL 252671, at *5 (Tenn. Crim. App. Jan. 21, 2025), no perm. app. filed.

The Defendant was convicted of aggravated sexual battery, rape of a child, and
incest. Aggravated sexual battery is a Class B felony, and as a Range I standard offender,
the appropriate sentencing range for this conviction was between eight and twelve years.
Tenn. Code Ann. §§ 39-13-504, 40-35-112(a)(2). Rape ofa child is a Class A felony which
requires the trial court to classify the defendant as a Range II offender. Tenn. Code Ann.
§ 39-13-522(b)(1). Accordingly, the appropriate sentencing range for this conviction was
between twenty-five and forty years. Tenn. Code Ann. § 40-35-112(b)(1). Finally, incest
is a Class C felony, and as a Range I standard offender, the appropriate sentencing range
for this conviction was between three and six years. Tenn. Code Ann. §§ 39-15-302(b)
(2021) (subsequently amended), 40-35-112(a)(3). The trial court imposed maximum
sentences for each of the Defendant’s convictions, and our review of the record indicates
that it did so after consideration of the purposes and principles of the Sentencing Act. We
will, therefore, accord the trial court’s sentencing determination the presumption of
reasonableness.

The sum of the Defendant’s argument on appeal is that the trial court gave
insufficient weight to the mitigating proof of his lack of a criminal record and his previous
military service. However, the 2005 amendments to the Sentencing Act “deleted as
grounds for appeal a claim that the trial court did not weigh properly the enhancement and
mitigating factors.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). Accordingly, the
Defendant’s disagreement with the trial court’s weighing of the mitigating evidence is not
a valid ground for relief. Id. at 345; Bise, 380 S.W.3d at 706. Because we find no basis to
conclude that the trial court abused its discretion in imposing maximum sentences in this
case, the Defendant is not entitled to relief on this claim.

III. Conclusion

Following our review, we reverse the Defendant’s convictions of rape ofa child and
incest and remand for a new trial on those charges. The judgments of the trial court are
affirmed in all other respects.

sS/ W. MARK WARD
W. MARK WARD, SPECIAL JUDGE

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