IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 23, 2012 Session

STATE OF TENNESSEE v. BARRY D. MCCOY

Appeal from the Circuit Court for Montgomery County

No. 41001277 John H. Gasaway, Judge

No. M2011-02121-CCA-R9-CD - Filed May 30, 2012

In this interlocutory appeal by the State, the State challenges the trial court’s ruling denying

the State’s request to admit into evidence at trial the video-recorded interview of the minor

victim pursuant to newly-enacted Tennessee Code Annotated section 24-7-123. Because the

trial court erred by reaching the constitutional question before it was ripe for review, the

ruling of the trial court is vacated, and the case is remanded for further proceedings.

Tenn. R. App. P. 3; Judgment of the Circuit Court Vacated and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which D. KELLY

THOMAS, JR., and JEFFREY S. BIVINS, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; John Carney, District Attorney General; and Kimberly Lund, Assistant

District Attorney General, for the appellant, State of Tennessee.

Greg Smith (on appeal); and Edward Dewerff (at hearing), Clarksville, Tennessee, for the

appellee, Barry D. McCoy.

OPINION

The Montgomery County grand jury charged the defendant, Barry D. McCoy,

with seven counts of rape of a child, see T.C.A. § 39-13-522, and the defendant agreed to

waive his right to a trial by jury and submit to a bench trial. Prior to trial, the State filed

notice that it intended to admit into evidence during its case-in-chief the video-recorded

interview of the minor victim pursuant to Code section 24-7-123. The defendant objected

to the admission of the video recording on grounds that it was inadmissible hearsay and that

admission of the recording would violate his constitutional right to confront the witnesses
against him. Following a hearing during which neither party presented any live evidence, the

trial court denied the State’s request to admit the video recording on three grounds: (1) the

video recording was hearsay not covered by any exception to the hearsay rule; (2) admission

of the video recording would violate the defendant’s right to confront the witnesses against

him; and (3) Code section 24-7-123 was unconstitutional as a legislative exercise of judicial

authority. The trial court granted the State’s request to pursue an interlocutory appeal to this

court via Rule 9 of the Tennessee Rules of Appellate Procedure.

This court granted the State’s application for interlocutory appeal pursuant to

Rule 9, adopting the reasons for interlocutory appeal espoused by the trial court. In this

appeal, the State contends that the trial court abused its discretion by excluding the video

recording. The defendant asserts that the trial court properly excluded the evidence because

Code section 24-7-123 is unconstitutional and no other exception to the hearsay rule provides

for its admission.

Initially, we emphasize that neither the video recording at issue nor the

transcript of the initial discussion of the evidence has been included in the record on appeal.

The State, as the appellant, bears the burden of providing an adequate record on appeal, see

State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have

prepared a transcript of such part of the evidence or proceedings as is necessary to convey

a fair, accurate and complete account of what transpired with respect to those issues that are

the bases of appeal,” Tenn. R. App. P. 24(b). Generally, when the appellant fails to file an

adequate record, this court must presume the trial court’s ruling was correct. See State v.

Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Because the record is

nevertheless sufficient for our review of the trial court’s action under the specific

circumstances of this case and because dismissal of the appeal could result in irreparable

harm to the State, we will review the propriety of the trial court’s ruling notwithstanding the

State’s procedural default.

At issue in this case is Code section 24-7-123, which provides:

24-7-123. Admission of video recording of interview of child

describing sexual conduct.

(a) Notwithstanding any provision of this part to the contrary, a

video recording of an interview of a child by a forensic

interviewer containing a statement made by the child under

thirteen (13) years of age describing any act of sexual contact

performed with or on the child by another is admissible and may

be considered for its bearing on any matter to which it is

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relevant in evidence at the trial of the person for any offense

arising from the sexual contact if the requirements of this

section are met.

(b) A video recording may be admitted as provided in subsection

(a) if:

(1) The child testifies, under oath, that the offered video

recording is a true and correct recording of the events contained

in the video recording and the child is available for cross

examination;

(2) The video recording is shown to the reasonable

satisfaction of the court, in a hearing conducted pre-trial, to

possess particularized guarantees of trustworthiness. In

determining whether a statement possesses particularized

guarantees of trustworthiness, the court shall consider the

following factors:

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

child;

(B) Any apparent motive the child may have to falsify or

distort the event, including, but not limited to, bias or coercion;

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

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

(E) Whether the child’s young age makes it unlikely that

the child fabricated a statement that represents a graphic,

detailed account beyond the child’s knowledge and experience;

(F) Whether the statement is spontaneous or directly

responsive to questions;

(G) Whether the manner in which the interview was

conducted was reliable, including, but not limited to, the

absence of any leading questions;

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(H) Whether extrinsic evidence exists to show the

defendant’s opportunity to commit the act complained of in the

child's statement;

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

(J) Whether the equipment that was used to make the

video recording was capable of making an accurate recording;

and

(K) Any other factor deemed appropriate by the court;

(3) The interview was conducted by a forensic

interviewer who met the following qualifications at the time the

video recording was made, as determined by the court:

(A) Was employed by a child advocacy center that meets

the requirements of § 9-4-213(a) or (b);

(B) Had graduated from an accredited college or

university with a bachelor’s degree in a field related to social

service, education, criminal justice, nursing, psychology or other

similar profession;

(C) Had experience equivalent to three (3) years of

fulltime professional work in one (1) or a combination of the

following areas:

(i) Child protective services;

(ii) Criminal justice;

(iii) Clinical evaluation;

(iv) Counseling; or

(v) Forensic interviewing or other comparable work with

children;

(D) Had completed a minimum of forty (40) hours of

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forensic training in interviewing traumatized children and

fifteen (15) hours of continuing education annually;

(E) Had completed a minimum of eight (8) hours of

interviewing under the supervision of a qualified forensic

interviewer of children;

(F) Had knowledge of child development through

coursework, professional training or experience;

(G) Had no criminal history as determined through a

criminal records background check; and

(H) Had actively participated in peer review;

(4) The recording is both visual and oral and is recorded

on film or videotape or by other similar audio-visual means;

(5) The entire interview of the child was recorded on the

video recording and the video recording is unaltered and

accurately reflects the interview of the child; and

(6) Every voice heard on the video recording is properly

identified as determined by the court.

(c) The video recording admitted pursuant to this section shall

be discoverable pursuant to the Tennessee [R]ules of [C]riminal

[P]rocedure.

(d) The court shall make specific findings of fact, on the record,

as to the basis for its ruling under this section.

(e) The court shall enter a protective order to restrict the video

recording used pursuant to this section from further disclosure

or dissemination. The video recording shall not become a public

record in any legal proceeding. The court shall order the video

recording be sealed and preserved following the conclusion of

the criminal proceeding.

T.C.A. § 24-7-123.

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As indicated, the trial court declared the statute unconstitutional on grounds

that, if applied to admit the video recording in question, it would violate the defendant’s

confrontation rights and that, in passing the statute in contravention of the rules prohibiting

the admission of hearsay evidence, the legislature had violated the separation of powers

doctrine by engaging in an inherently judicial function. Several well-settled principles guide

our review.

The courts of this state must uphold the constitutionality of statutes where

possible, see Dykes v. Hamilton County, 191 S.W.2d 155, 159 (Tenn. 1945); State v. Joyner,

759 S.W.2d 422, 425 (Tenn. Crim. App. 1987), always beginning review of the

constitutionality of a statute “with the presumption that an act of the General Assembly is

constitutional,” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (citing State v.

Robinson, 29 S.W.3d 476, 479-80 (Tenn. 2000); Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn.

1997)). Moreover, a reviewing court must “‘indulge every presumption and resolve every

doubt in favor of the statute’s constitutionality.’” Id. (quoting State v. Taylor, 70 S.W.3d

717, 721 (Tenn. 2002)). Most importantly to our resolution of this case, however, is the

established principle that “‘courts do not decide constitutional questions unless resolution is

absolutely necessary to determining the issues in the case and adjudicating the rights of the

parties.’” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting Taylor, 70 S.W.3d at

720 (citing Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)).

Here, the trial court “assume[d] for purposes” of its order excluding the video

recording and granting interlocutory appeal that the statutory prerequisites for admission via

Code section 24-7-123 had been satisfied, and it ruled on the constitutionality of the statute

without having reviewed the video recording or considering whether the recording would

qualify for admission under the statute. The parties did not stipulate that the video recording

satisfied the statutory requirements or that the recording was admissible only via the terms

of Code section 24-7-123. The court should not have passed on the statute’s constitutionality

without having first determined whether it was actually applicable to this case. If the video

recording does not satisfy the statutory prerequisites embodied in Code section 24-7-123,

then the constitutionality of the provision is moot. Similarly, if the video qualifies for

admission into evidence at trial under another evidentiary rule, determining the

constitutionality of section 24-7-123 as a vehicle of admission would be unnecessary. Also,

if the court rules that the video recording is nevertheless inadmissible via the discretion

afforded to the court by Code section 24-7-123, see T.C.A. § 24-7-123(b) ( providing that

“video recording may be admitted” emphasis added), the court would not reach the issue of

the statute’s constitutionality. Each of these scenarios underscoresthe prematurity of the trial

court’s ruling in this case.

Because the trial court failed to first determine the statute’s applicability in this

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case, the constitutional challenge is not yet ripe for review. See Pennell v. San Jose, 485 U.S.

1, 10 (1988) (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S.

264, 294-95 (1981), and observing that “the constitutionality of statutes ought not be decided

except in an actual factual setting that makes such a decision necessary.”). Accordingly, the

ruling of the trial court excluding the video recording is vacated, and the case is remanded

for further proceedings.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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