IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 9, 2016

STATE OF TENNESSEE v. ROBERT G. THORNTON, JR.

Appeal from the Circuit Court for Hickman County

No. 145023CR James G. Martin, III, Judge

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No. M2015-01895-CCA-R3-CD – Filed June 22, 2017

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Following a jury trial in Hickman County Circuit Court, Defendant, Robert G. Thornton, 

Jr., was convicted of two counts of rape. The trial court merged the convictions and 

sentenced Defendant to twelve years in the Department of Correction to be served at 

100%. On appeal, Defendant argues: (1) that the trial court improperly refused to strike a 

juror for cause; (2) that the trial court erred by denying his motion for a mistrial; (3) that 

the evidence was not sufficient to support his rape convictions; and (4) that his sentence 

is excessive. After a thorough review of the record, we affirm the judgments of the trial 

court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Richard Boehms, Hohenwald, Tennessee, for the appellant, Robert G. Thornton, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;

Kim R. Helper, District Attorney General; and Kate Yeager Delk, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

Background

State’s Proof

Tina Thigpen is the Principal at the Hickman County Middle School. During the 

2012-2013 school year she was employed as a guidance counselor at the school. On May 

2, 2013, Ms. Thigpen was requested to speak with the victim after there had been a fight 
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during recess that day. The victim did not participate in the fight although he was the 

“subject” of the fight. Ms. Thigpen called the victim into her office, and they had a 

conversation. The victim was concerned that he had an STD, which raised many “red 

flags” with Ms. Thigpen. She continued speaking with the victim and suggested that he 

be tested. The victim became “visibly shaken, scared, upset,” and he began crying. Ms. 

Thigpen testified that she felt the need to notify the school principal, the victim’s mother, 

and law enforcement. The victim’s mother and law enforcement later arrived at the 

school. 

The victim’s mother testified that she has three sons. At the time of the offenses, 

the victim was fourteen years old and in the eighth grade. The victim’s mother testified 

that he liked sports and music, and she described him as a quiet child who was “sweet 

and kind.” 

On May 2, 2013, the victim’s mother received a call from Ms. Thigpen at the 

Hickman County Middle School. The victim’s mother then left work and drove to the 

school. She walked into the room where the victim was sitting, and she immediately 

noticed that he was very upset. She knew that there was “something drastically wrong 

with him.” 

The victim’s mother noted that the victim spent nearly every weekend with his 

father, from whom the victim’s mother had been divorced since 2000. She had noticed 

changes in the victim in the weeks leading up to May 2, 2013. The victim’s mother 

described him as “more distan[t] than ever,” and he spent a lot of time in bed. She also 

testified that the victim constantly wore a hoodie, and he was “very sick all of the time.” 

The victim testified that he met Defendant during the victim’s eighth grade year at 

school. He said that he went to Defendant’s house with a friend, J.D., for a birthday 

party. The victim testified that there was alcohol at the party, and everyone was drinking 

except for Defendant. The victim said that he drank “two shots.” He and J.D. then spent 

the night at Defendant’s house. After that, the victim testified that he and J.D. visited 

Defendant’s house every other week for a “month or a month and a half.” The victim 

testified that Defendant had a television but he did not have cable. Defendant also 

usually had alcohol for them to drink. The victim testified that he and J.D. usually talked 

and hung out together while at Defendant’s house. He said that Defendant also had a 

roommate but the victim only saw him one time. The victim also saw other people at 

Defendant’s house who were older than the victim. He said that there were no rules at 

Defendant’s house. The victim testified that the main reason he went to Defendant’s

house was to “hang out” with J.D. He said that Defendant was always there and sitting 

“in front of his couch or on the chair.” 
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The victim described his relationship with Defendant as someone he could talk to 

and “open up to for problems.” The victim testified that J.D. and Defendant were at 

Defendant’s house the last time that the victim was there. He said that he and J.D. were 

“messing around being stupid,” and Defendant had rum and Mountain Dew at the house. 

Defendant mixed the two ingredients together and gave it to the victim. The victim 

thought that J.D. also had a drink. The victim testified that he drank two cups of the 

mixture and began to feel lightheaded and off balance. He said, “Like whenever I was 

turning or tried to move my eyes everything felt like it was going like in slow motion and 

moving all together I guess.” The victim testified that he had never drank that much or 

felt that way before. 

The victim testified that Defendant showed the victim and J.D. some pornography 

that was playing on the television, and the victim and J.D. then went to the back room of 

the house and talked. The victim described the room as the closest one to the living 

room. He said that Defendant walked into the room while the victim and J.D. were on 

the bed talking. The victim testified that Defendant asked him if he wanted to “try anal 

or anything with a guy,” and the victim told him, “I didn’t want to.” The victim said that 

the next thing he remembered was being facedown and feeling a sharp pain inside his 

“butt.” He could not turn around to see what was inside of him but he felt a “ripping” 

sensation. The victim testified that he felt J.D.’s hand on his back, and J.D. told 

Defendant to stop because he was hurting the victim. The victim said that he could not 

tell Defendant to stop because he was in too much pain. He testified that the pain stopped 

after a while, and he “just kind of laid there,” and J.D. hugged him. The victim testified 

that J.D. was in the room the entire time that Defendant was raping him. He said that 

Defendant did not say anything and left the room after the rape. The victim went to 

sleep, and Defendant was gone when he woke up at approximately 7:30 to 8:00 a.m. the 

next morning. The victim left Defendant’s house and walked to his girlfriend’s house. 

The victim did not tell anyone what happened because he was scared and wanted to 

forget about it. 

The victim admitted that he spoke with a detective a few weeks before he told Ms. 

Thigpen what happened. He did not tell the detective about the rape because he did not 

want to talk about it, and he wanted to “leave it alone and forget about it.” The victim 

said that he finally told Ms. Thigpen what happened because he trusted her, and 

Defendant was in jail and “already caught.” The victim testified that it was difficult to 

tell his mother what happened, and he did not want anyone to “feel bad” for him. 

On cross-examination, the victim testified that Defendant never personally invited 

the victim to his house, and he did not pressure the victim to drink alcohol or watch 

pornography on television. The victim admitted that he asked for alcohol the last time 

that he was at Defendant’s house. He recalled talking to a woman a few weeks after he 

disclosed the rape. The victim told the woman that he went to Defendant’s house three 
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times, and Defendant was at the house one of those times. He did not feel comfortable 

telling the woman the whole truth and everything that went on. He said that he was 

afraid to tell her how many times he went to Defendant’s house and what he was doing 

there. 

The victim testified that he was wearing tight stretchy pants at the time of the rape. 

He described them as “like the ones you probably get from like Hot Topic or kind of 

store like that.” He also usually wore “band shirts.” The victim did not recall how his 

pants were removed, and he said that Defendant pushed him from the shoulder, and he 

was face down on the bed. He did not know how long the rape lasted, and he could not 

do anything to stop it. The victim testified: “I was like I blacked out once my face hit 

the bed. I couldn’t - - I wasn’t - - I was kind of shocked at the moment. I didn’t know 

what was going on and I felt a sharp pain.” The victim said that he could not “really 

move,” and it “hurt real bad.” He felt as though he “couldn’t do anything about it.” The 

victim testified that he felt a hand on his back, and he knew that it was J.D.’s hand 

“because it felt gentle [.]” He heard J.D. yelling “stop you’re hurting him.” The victim 

again testified that J.D. hugged him, and the victim went to sleep. He did not recall 

telling the woman during the interview that he went into the living room after the rape 

and slept on the couch with J.D. The victim also did not recall telling the woman during 

the interview that Defendant used baby oil from the nightstand and that the rape lasted 

approximately fifteen to thirty minutes. 

The victim did not recall every time that he went to Defendant’s house but he said 

that Defendant was there. However, Defendant would sometimes leave after the victim 

got there. He did not recall telling Officer Mobley that he had been to Defendant’s house 

four times, that Defendant was not there the first two times, and that Defendant was only 

there for fifteen minutes the third time the victim was there. The victim testified that he 

spent the night at Defendant’s house two times. On redirect examination, the victim 

testified that he never returned to Defendant’s house after the rape. He estimated that he 

had been to Defendant’s house four or five times. 

M.C was seventeen at the time of the trial, and he attended Hickman County High 

School with the victim, and he knew J.D. He said that the victim was younger than he 

was. M.C. testified that during the spring of 2013 he and the victim would occasionally 

hang out after school and go to Defendant’s house or go skating. M.C. noted that he was 

still struggling with the passing of his mother at the time. He said that his friend, D.W, 

was Defendant’s son. M.C testified that he and D.W. were in band together. M.C. said 

that he went to Defendant’s house sometimes with D.W. M.C. testified that he and 

Defendant were “pretty good friends,” and they had conversations about M.C.’s life. 

M.C. told Defendant about his relationships and girlfriends. 
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M.C. testified that he was at Defendant’s house once or twice when the victim was 

there. Defendant was also there when the victim was there. M.C. testified that 

Defendant had alcohol at the residence most of the time when they were there. M.C. 

testified that they all would “pitch in money and [Defendant] would go to Dickson and 

buy some.” He said that Defendant would either purchase Jagermeister or Vodka. M.C. 

recalled a point when the victim stopped coming to Defendant’s house. Defendant would 

ask M.C. if he knew when the victim was coming over again. M.C. testified that 

Defendant would also say, “I want to go over like the other night again, and then he 

would be kind of hinting that it - - it be [sic] kind of like nudging at me. . .” M.C. said 

that he and Defendant had been talking about relationships when Defendant asked about 

the victim. M.C. testified that he spent the night at Defendant’s house most of the time. 

On cross-examination, M.C. testified that Defendant never forced him to drink alcohol. 

J.D. testified that he currently lives in Hendersonville, Tennessee with his mother 

and is enrolled in an online school. He previously lived with his father in Hampshire, 

Tennessee, located “technically” in Maury County but he had attended Hickman County 

Middle School. He was friends with D.W. who introduced him to Defendant. J.D. 

testified that D.W. referred to Defendant as his “uncle.” They stopped by Defendant’s 

house one night on Halloween and stayed approximately fifteen to thirty minutes. After 

that, J.D. testified that he visited Defendant’s house “maybe every other weekend.” J.D. 

said that M.C. and the victim would come over to Defendant’s house. J.D. had known 

the victim since they were both in seventh grade. J.D. thought that the victim went to 

Defendant’s house with J.D. two or three times. He said: “Sometimes we would just sit 

there and listen to music. Sometimes there would be drinking involved, but I would just 

mainly be hanging out with my friend, you know, we would just do typical stuff, talk so -

-[.]” J.D. testified that Defendant sometimes had Vodka at the house, and one time there 

was rum or Jagermeister. 

J.D. testified that he spent the night at Defendant’s house [m]ost of the times that 

[he] went over there.” The victim was not with him every time that he stayed at 

Defendant’s house. J.D. testified that his memory of the night of the offense was a “little 

fuzzy.” However, he distinctly remembered the victim “on the bed and I remember [the 

victim] was in pain and I was telling [Defendant] to stop.” He also told Defendant that he 

was hurting the victim. J.D. specifically testified that Defendant was penetrating the 

victim’s anus with Defendant’s penis. J.D. testified that he could tell from the victim’s 

facial expression that he was in pain. He did not recall if the victim said anything. J.D. 

testified that he was on the bed next to the victim when the rape occurred. He did not 

recall how the victim’s pants were removed, and he said that Defendant was wearing 

pants but that they were unzipped and pulled slightly down. J.D. testified that the rape 

lasted approximately fifteen minutes, and he “felt powerless.” He thought that he hugged 

the victim after the rape, and they both went to sleep. 
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J.D. testified that he could not remember everything that happened because “[w]e 

were inebriated.” J.D. thought that he had been drinking Vodka and that he had more to 

drink than the victim. He believed that the victim went to Defendant’s house with him 

one time after the rape occurred. 

On cross-examination, J.D. testified that Defendant never forced him to drink 

alcohol. He said that Defendant was at the house every time that J.D. was there with the 

victim. J.D. did not believe that anyone other than he and the victim was at Defendant’s 

house on the night of the rape. J.D. testified that he and the victim were lying on the bed 

with their head on the head board and their feet vertically on the bed. He said that they 

were not lying on the edge of the bed. J.D. thought that he and the victim had been in the 

bedroom talking for approximately thirty to forty-five minutes when Defendant walked 

into the room. J.D. testified that he did not call anyone to help stop the rape because he 

was afraid. The first time that he told anyone what happened was when his principal 

asked him about it. 

Sergeant Levy Mobley of the Hickman County Sheriff’s Office testified that he 

was working as a detective for the sheriff’s office in the spring of 2013. He received 

information during that time that teenage boys were “hanging out” at Defendant’s 

residence. 

Sergeant Mobley interviewed the victim on April 19, 2013, at the victim’s home. 

The victim’s mother was present, and Detective Mobley asked the victim about what 

went on at Defendant’s house. Detective Mobley testified that the victim was “reserved,” 

and he would not give Detective Mobley much information. The victim admitted to 

being at Defendant’s house and that he and other friends drank alcohol and watched 

pornographic movies while there. He told Detective Mobley that he had been to 

Defendant’s house three to four times. According to Detective Mobley’s notes, the 

victim said that Defendant was not at the house the first two times that the victim was 

there. The victim also said that Defendant was there for approximately fifteen minutes 

the third time, and Defendant was there the fourth time for the entire time the victim was 

at the house. The victim did not tell Detective Mobley anything about what happened to 

him personally at Defendant’s house. Detective Mobley did not press the victim on the 

issue because it made Detective Mobley “a little bit uncomfortable.” When asked why it 

made him uncomfortable, Detective Mobley testified: “Well, because he’s a child and

because of the allegations that I was aware of that been [sic] going on over there, I was a 

little uncomfortable with it.” 

Detective Mobley also talked with Defendant about what may or may not have 

been going on at his house. He testified:
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[Defendant] advised me that the boys, you know, they would come over 

sometimes. He - - he had a son named [D.W.] that I guess they were 

supposedly friends and that’s - - that was the connection, but anyway 

they - - he had - - he let boys come over and they stay around his house.

Defendant told Detective Mobley that he would allow the boys to drink “Fanta” and 

watch movies. Defendant also told him that he would talk to the boys about their 

problems at school and “stuff like that.” Detective Mobley testified that Defendant 

denied allowing the boys to watch pornography, and he said that they only watched 

cartoons. Defendant told Detective Mobley that he kept alcohol in the refrigerator but 

that he never provided any to the boys.

On May 2, 2013, Detective Mobley was called to the Hickman County Middle 

School by the Principal. He spoke with J.D. and the victim, who was visibly upset and 

crying. Detective Mobley asked the victim specific and detailed questions, and their 

conversation lasted fifteen to twenty minutes. He said that the victim’s demeanor was 

different than their first conversation on April 19, 2013. He also noted that victims of 

“sexual crimes don’t always admit to it at first.” Detective Mobley then referred the 

victim to the Child Advocacy Center to be interviewed. Detective Mobley also 

interviewed M.C. and D.W. Detective Mobley testified that the victim told him at the 

school that he had been to Defendant’s house more than twice. He admitted that there 

were some small inconsistencies between what the victim told him on April 19, 2013, and 

what the victim told him on May 2, 2013, about how many times he was at Defendant’s 

house. When asked if the inconsistencies concerned him, Detective Mobley testified:

Well, I mean it didn’t really concern me because like I said before, it 

didn’t surprise me on the first interview the fact that he didn’t reveal 

anything, didn’t - - because I’m sure he was ashamed and probably was 

a little embarrassed and didn’t want to - - you know, I kind of took him 

by surprise because they had no idea why I was there . . . 

Charlsi Legendre was working at the David House Child Advocacy Center in May 

2013 as a forensic interviewer, and she interviewed the victim. The interview was video 

and audio recorded. Ms. Legendre testified that the victim was “very closed” and “very 

guarded.” She also noted that he was not comfortable. Ms. Legendre testified that she 

gave a copy of the recorded interview to Detective Mobley. On cross-examination, Ms. 

Legendre testified that the victim was not emotional during the interview. She said that 

there were “some differences in some things” which she said was “typical of teenaged 

boys.” The victim told her that he had been to Defendant’s house three times. Ms. 

Legendre testified that the victim originally said that Defendant was at the house when he 

was there on one occasion, “but then he followed it up with a detail of two separate 

incidents.” 
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On cross-examination, Ms. Legendre testified that according to her report, the 

victim said that J.D. was in the room during the rape, and J.D. had been back to 

Defendant’s residence. The victim said that he thought the rape lasted between fifteen 

and thirty minutes. The victim also said that he fell asleep on the couch with M.C. after 

the rape was over. On redirect examination, Ms. Legendre testified that the victim’s 

story never differed with respect to him being raped once while J.D. was in the room. 

She said that there were no inconsistencies in the victim’s story other than the number of 

times Defendant was at the residence when the victim was there and whether M.C. was 

present at the time of the rape. Ms. Legendre also noted that “as the interview progressed 

[the victim] kind of clarified himself.” 

Defendant’s Proof

Defendant testified that in March and April of 2013, he was living on Highway 48 

North. He was disabled and not working at the time due to severe liver disease. 

Defendant said that he was also enrolled in the University of Phoenix. 

Defendant testified that he did not rape the victim or touch him “sexually in any 

way.” He said that there was alcohol at his house because of his roommate but 

Defendant denied giving it to any children. Defendant testified that he occasionally 

drank beer, and J.D. would bring “Faygo” to the house from the store next door. 

Defendant also denied watching pornography with the victim or J.D. He testified that he 

never knew when the victim was coming to his house. Defendant testified that he had no 

running water because his meter had been removed from the house. 

On cross-examination, Defendant testified that D.W., who is now 20 or 21 years 

old, is his son. Defendant described their relationship as good. He said that D.W. did not 

live with him but D.W. would have his friends come to Defendant’s house. Defendant 

remembered the victim, J.D., and M.C being there. He thought that he also remembered 

someone named “Chance,” who had dropped D.W. off at Defendant’s house “one time 

or something.” 

Defendant testified that in March and April of 2013 D.W. rarely came to 

Defendant’s house. He said that D.W.’s friend came to Defendant’s house when D.W. 

was not there to meet with either D.W. or “Elizabeth.” Defendant testified that the 

friends would sometimes hang out with him if D.W. or Elizabeth was not there. 

Defendant said that he developed a relationship with the young boys and that they would 

“drop by and talk to [him] about stuff and ask him [stuff] about school, and some of them 

had girlfriend problems and just random stuff.” He said that M.C. struggled with the 

passing of his mother. Defendant also said that he would provide food to M.C. “if he was 

there at night.” He thought that M.C. spent the night at his house one time. 
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Defendant testified that J.D. did not come to the house very often because he was 

going to move to Hendersonville with his mother. He said that J.D. stopped by 

occasionally on Saturdays to meet with “Elizabeth.” Defendant estimated that J.D. was at 

his house “no more than 10 times,” and J.D. spent the night there four times. Defendant 

testified that he and J.D. were alone at the house on one or two occasions, and they 

sometimes watched movies such as “True Blood,” and “the Vampire Diaries and stuff.” 

They also may have watched one of the “Twilight” movies. Defendant said that he did 

not watch the movies with D.W., M.C., or the victim. 

Defendant testified that D.W. stayed at his house “continually for about a week[]” 

because D.W. and his girlfriend had some “issues.” He said that other times D.W. 

stopped by “randomly.” Defendant testified that there were three bedrooms in his house. 

Defendant said that one of the bedrooms belonged to D.W., one belonged to him, and the 

third bedroom did not have electricity and was used for storage. Defendant also testified 

that since D.W. was not at the house very often, Defendant had obtained a roommate. 

Defendant also noted that he “slept a lot on the couch. 

Defendant testified that alcohol was stored in the refrigerator and that it was 

“[b]eer mostly.” He denied that the alcohol belonged to him. Defendant said that he 

occasionally drank alcoholic beverages to “flush [his] kidneys out.” He said that it was 

never more than one beer. Defendant testified that there was a television in the living 

room that was connected to a VCR. Defendant denied watching any pornography on the 

television. He admitted that there was some pornography stored in the bedroom used for 

storage. Defendant testified that there was no plumbing in his house and that he had told 

the boys that visited his house to go next door to McDonald’s to use the restroom rather 

than relieving themselves in his yard. 

Defendant testified that the victim was only at his house twice. He said:

[The victim] came both times with [J.D.]. I had no previous knowledge 

of him showing up. The intention was that Jake was coming to meet 

with Elizabeth. She was supposed to pick him up and they were 

supposed to go to her house so, occasionally, Elizabeth didn’t show up 

and he was kind of stranded. 

Defendant thought that M.C. was at the house one time while the victim was there. He 

said that the victim spent the night at his house one time, and the victim and J.D. slept in 

the “front bedroom,” and Defendant slept on the couch. Defendant said that the victim 

and J.D. were talking and playing “their I-pod things” on the night that the victim spent 

the night. Defendant did not attempt to call the victim’s mother or father that night since 

the two boys were “stranded” at his house. Defendant testified that it did not concern 
- 10 -

him that two fourteen-year-old boys that he was not related to were spending the night at 

his house. He never asked them to leave or call their parents to pick them up. Defendant 

testified that neither the victim nor J.D. drank any alcohol that night. He thought that 

D.W. stopped by the house earlier that night but then left with his girlfriend. 

Defendant testified that he did not talk to the victim much “because he was there 

with [J.D.],” and the victim’s school still didn’t . . .affect [him].” Defendant testified that 

the boys randomly showed up at his house, and he was “hospitable” to them. He denied 

talking to the boys about what was going on in their life. He thought that he told 

Detective Mobley that the boys knew they could talk to him if they needed to. He denied 

saying that he would talk to them about what was going on at school or that he would 

help them address “any type of identity issues.” Defendant testified that he did not want 

to have a relationship with any of the boys but he never told them to leave his house. He 

said that he would have discussed some issues with the boys but other issues needed to be 

addressed by their parents. 

Defendant testified that he had met M.C.’s father but he never contacted him to 

express concern about how M.C. was processing the death of his mother. He also never 

called J.D.’s parents to let them know that he was cutting himself. Defendant admitted 

that J.D. told him that he was cutting himself, and he showed the cuts to Defendant. 

Defendant said that he told D.W. and M.C. that they needed to talk with J.D. about the 

cutting. Defendant was not sure if he was present each time that the victim was at his 

house because there was a key on the front porch, and D.W. knew where it was. 

Defendant again denied giving the boys alcohol or mixing alcoholic drinks for them. He 

said that he did not pour “shots” for the victim. Defendant said that he last saw M.C. and 

J.D. in April of 2013. He did not recall the last time that he saw the victim. Defendant 

testified that he was surprised by the allegations that the victim made against him. He 

denied ever asking M.C. when the victim was coming back to the house, and he denied 

talking about M.C.’s “sex life.”

On redirect examination, Defendant asserted that he is homosexual. He thought 

that D.W. was his biological son although that had never been confirmed. He noted that 

he went through a “bisexual stage” where he thought that he “could deal with females, 

but over a period of time [he] realized that [he] was more interested in males[.]” 

State’s rebuttal Proof

D.W. testified that he is currently twenty years old. He attends school and works 

at McDonald’s. He described his relationship with Defendant as follows: “[H]e was 

friends with my mom for 20 plus years and he was like a father figure to me growing up 

so naturally I just heard he moved in so I started going down there.” D.W. testified that 

his mother had told him that Defendant was not his biological father. 
- 11 -

D.W. testified that J.D. is one of his friends, and they met while D.W. was living 

with another friend. D.W. testified that he was living at Defendant’s house between 

September and November of 2012. He also stayed at his girlfriend’s house sometimes. 

D.W. wanted J.D. to come over to Defendant’s house to “hang out.” D.W. testified that 

he saw M.C. at the house during that time, and there was alcohol in the home that 

Defendant bought and brought in. He said that Defendant offered some of the alcohol to 

him but he did not drink any. D.W. testified that he saw J.D. and M.C. drinking alcohol

and Defendant’s house and that Defendant mixed their drinks and gave it to them. 

Analysis 

A. Failure to Strike a Juror for Cause

In order to protect the identity of the juror who is the subject of this issue, we will 

identify her as “Juror A.” Defendant argues that the trial court erred by failing to strike 

Juror A from the jury panel because Juror A stated that she had been raped when she was 

between the ages of ten and thirteen by a family member. However, Juror A also told the 

trial court that she could be impartial if selected as a juror. 

Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant 

the right to trial “by an impartial jury.” In fact, every accused is guaranteed “a trial by a 

jury free of . . . disqualification on account of some bias or partiality toward one side or 

the other of the litigation.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993) 

(citing Tooms v. State, 197 Tenn. 229, 270 S.W.2d 649, 650 (Tenn. 1954)). In 

Tennessee, challenges to juror qualifications generally fall into two categories: propter 

defectum, “on account of defect”; or propter affectum “for or on account of some 

affection or prejudice.” Carruthers v. State, 145 S.W.3d 85, 94 (Tenn. Crim. App. 2003); 

Akins, 867 S.W.2d at 355. General disqualifications such as alienage, family 

relationship, or statutory mandate are classified as propter defectum and must be 

challenged before the return of a jury verdict. Akins, 867 S.W.2d at 355. An objection 

based upon bias, prejudice, or partiality is classified as propter affectum and may be 

made after the jury verdict is returned. Id. “Where a juror is not legally disqualified or 

there is no inherent prejudice, the burden is on the defendant to show that a juror is in 

some way biased or prejudiced.” State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993) 

(citing Bowman v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980). The defendant 

bears the burden of proving a prima facie case of bias or partiality. Id. (citing Taylor,

669 S.W.2d at 700).

Relative to challenges of prospective jurors for cause, Rule 24(b), Tennessee 

Rules of Criminal Procedure, provides in part as follows:
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Any party may challenge a prospective juror for cause if:

(1) There exists any ground for challenge for cause provided by law; or

(2) The prospective juror’s exposure to potentially prejudicial 

information makes him unacceptable as a juror. Both the degree of 

exposure and the prospective juror’s testimony as to his state of mind 

shall be considered in determining acceptability. A prospective juror 

who states that he will be unable to overcome his preconceptions shall be 

subject to challenge for cause no matter how slight his exposure. If he 

has seen or heard and if he remembers information that will be 

developed in the course of the trial, or that may be inadmissible but is 

not so prejudicial as to create a substantial risk that his judgment will be 

affected, his acceptability shall depend on whether his testimony as to 

impartiality is believed. If he admits to having formed an opinion, he 

shall be subject to challenge for cause unless the examination shows 

unequivocally that he can be impartial.

Although jurors may be excluded for cause if they have formed an opinion which will 

prevent impartiality, “[j]urors need not be totally ignorant of the facts of the case on 

which they sit [and even] the formation of an opinion on the merits will not disqualify a 

juror if [the juror] can lay aside [his or her] opinion and render a verdict based on the 

evidence presented.” State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). The United 

States Supreme Court has made the following observation:

In these days of swift, widespread and diverse methods of 

communication, an important case can be expected to arouse the interest 

of the public in the vicinity, and scarcely any of those best qualified to 

serve as jurors will not have formed some impression or opinion as to 

the merits of the case. This is particularly true in criminal cases. To 

hold that the mere existence of any preconceived notion as to the guilt or 

innocence of an accused, without more, is sufficient to rebut the 

presumption of a prospective juror’s impartiality would be to establish 

an impossible standard.

Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Thus, so long 

as a juror can set aside any previously-formed opinions and render a verdict based upon 

the evidence presented in court, the juror may properly participate in the case. Id.

Irrespective of whether the trial judge should have excluded the challenged jurors for 

cause, any possible error is harmless unless the jury who actually heard the case was not 

fair and impartial. Howell, 868 S.W.2d at 248; State v. Thompson, 768 S.W.2d 239, 246 

(Tenn. 1989). The failure to correctly excuse a juror for cause is grounds for reversal 
- 13 -

only if the defendant exhausts all of his peremptory challenges and an incompetent juror 

is forced upon him. Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 101 L.Ed.2d 80 

(1988); State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990).

In the case under submission, it is not clear from the record whether Defendant 

did, in fact, exhaust all of his peremptory challenges prior to requesting that Juror A be 

removed from the panel for cause. The record shows that challenges were exercised but 

not by which party. At one point, the trial court noted that the “defense [was] nearly out 

of challenges.” Even if Defendant exhausted all of his preemptory challenges, there is no 

evidence that the jury who heard the case was not fair and impartial. This alone prevents 

him the relief he seeks. We further conclude that the trial court did not err when it 

declined to excuse Juror A for cause. The following exchange took place between the 

trial court and Juror A:

THE COURT: What has been your life experience with the 

offense of rape or sexual assault?

JUROR A: I was raped as a child.

THE COURT: Okay. Was it a family member or non-family?

JUROR A: Family Member

THE COURT: It was by a family member. Have you had to 

have counseling or any kind of - -

JUROR A: Counseling, yes.

THE COURT: And that was obviously a traumatic thing to 

have happen to anybody in life. By the same token, you 

understand [Defendant] is presumed innocent. He comes to this 

Court with that presumption. And it is the burden of the State of 

Tennessee to establish his guilt beyond a reasonable doubt. And 

both the State and the Defendant are entitled to have jurors that 

will be fair and impartial. And the question I have for you is 

whether you can put that life experience out of your mind and 

judge the guilt or innocence of [Defendant] strictly based on the 

evidence you hear?

JUROR A: I believe I can. 

THE COURT: Okay. Very well. 
- 14 -

Juror A told defense counsel that the person who raped her was never prosecuted. 

When asked if she would hold Defendant’s denial of the rape in this case against him, 

Juror A replied: “No.” Juror A clearly indicated that she could set aside any previouslyformed opinions and render a verdict based upon the evidence presented in court, 

meaning that she could properly participate in the case. See Irvin, 366 U.S. at 722-23. 

The Defendant is not entitled to relief on this issue.

B. Failure to Declare a Mistrial

Defendant argues the trial court abused its discretion by denying his motion for 

mistrial made during after the victim’s direct examination. We disagree. 

Courts should only declare a mistrial in a criminal matter when required by 

manifest necessity. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). 

A mistrial is an appropriate remedy when the trial cannot continue or a miscarriage of 

justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. 

App. 1994). The decision to grant a mistrial is within the sound discretion of the trial 

court, and this Court will not interfere absent a clear abuse appearing on the face of the 

record. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). The party seeking the mistrial 

has the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385, 

388 (Tenn. Crim. App.1996).

During the victim’s direct examination, the State asked why he decided to talk to 

Ms. Thigpen at school. The victim replied: “She told me that I could trust her and I 

believed her and he was already, I guess, he was already caught. He was already in jail.” 

There was no objection to the victim’s testimony at that time. After the victim’s direct 

examination, there was a short recess, and the jury was excused. The following took 

place:

[Prosecutor]: This is a difficult trial to have because there’s so 

many other events and so many other charges that [Defendant] had. I 

want to just make sure that - - that - - and we’ve spoken to [the victim] 

and [the victim] knows this, but just to make sure that during crossexamination if [Defense Counsel] were to ask him a question, that he 

still knows he’s not supposed to talk about other victims, that he’s not 

supposed to talk about [Defendant] - - and sorry, I refer to him as 

[Defendant]. That what [the victim] has been calling him - - that 

[Defendant] has been arrested for other crimes, that he’s been charged 

with other crimes and sometimes it’s difficult as you can imagine when 

you’re under the stress of cross-examination, and so I want - - and [the 

victim] knows this, that I just want him to understand that no time is 

[Defense Counsel], I would assume, soliciting any type of answers that 
- 15 -

would indicate that [Defendant] that - - there are other crimes, that he’s 

been arrested, that he’s been in jail, and so I wanted to just make sure we 

are clear on that. 

And then also we have it - - forensic interview that [the victim] did that 

we listened to last in out last hearing and it’s very difficult to hear as we 

all recall. The attorneys have agreed that the summary that the forensic 

interviewer prepared is accurate as to the video, and so when [Defense 

Counsel] cross-examines [the victim], he may ask him a question; do 

you recall speaking with the forensic interviewer, do you recall making 

this statement and [the victim] may or may not remember saying it. If he 

doesn’t remember it, the State is fine with [Defense Counsel] showing 

[the victim] the written summary, asking him to read it and then at that 

point, [the victim] at that point can either say, yes, you know, I 

remember saying it. And that’s how we’re going to try to do it without 

actually playing the video, and then I wanted [the victim] to understand 

the process because it’s confusing, obviously, when you’re not an 

attorney. 

* * *

[The Court]: [To the victim] But under our rules of evidence, 

under most circumstances, it’s improper for the jury to know that he’s 

been charged with the other offenses because [their] - - [their] focus is 

on the offense that related to you. 

So unless some question is asked of you that you think would require 

you to speak about other offenses, you shouldn’t do that. If you think it 

does require you to speak about other offenses then you shouldn’t do 

that. If you think it does require you to speak about other offenses then 

you say I’d like to ask the judge a question. So before you answer the 

question that would relate to any kind of other offense, you just stop and 

I’ll let the jury go out and then you can - - you can ask for clarification, 

okay?

[The victim]: (Nods head.)

[The Court]: Very good. And then the lady that Ms. Mason talked 

to you about that you went to visit and you didn’t remember her name 

and you didn’t remember where you went, she recorded your meeting 

with her and she’s prepared a summary, so it on cross-examination 

you’re asked questions about what you said to her, if you don’t 
- 16 -

remember, that’s fine. [Defense Counsel], who represents [Defendant], 

will let you read the summary, and then if it refreshes your memory you 

can then answer the question. If it doesn’t refresh your memory you 

don’t have to answer. You can just say I’m sorry, I still don’t remember. 

You understand?

[The victim]: Yes, sir. 

[The Court]: Very well. Let’s take a break.

[Defense Counsel]:Judge, I may need to ask her - - if I recall, I believe in 

his prior testimony he did mention something that when he once talked 

to Ms. Thigpen she told him that my client was already in jail so that he 

could trust her. 

[The Court]: Yes. 

[Defense Counsel]: May need to talk about a limiting jury instruction on 

that. 

[The Court]: Well, you - - you be thinking about it. It was very 

quick and it was - - he was very soft when he said it. 

[Defense Counsel]: Okay. And I was in the middle of - -

[The Court]: I understand, but if I give a limiting instruction then I 

am absolutely will be highlighting it, but - -

[Defendant Counsel]: I understand. 

[The Court]: But if the defense wants a limiting instruction, I will 

give a limiting instruction. So it’s clearly his reference to the fact that 

[Defendant] had been caught and was in jail, I think those were the 

words that he used, came out, but I picked up on it, but it was said softly 

and I’ll let you - - I’ll let you - -

[Defense Counsel]: I mean I would ask for a mistrial at this time based 

on that. 

[The Court]: Well, and I would overrule your mistrial, but I will 

tell you without equivocation I’ll tell the jury that they’re totally directed 

to disregard that statement. 
- 17 -

[Defense Counsel]: Okay. If I - - let me talk to my - -

[The Court]: That’s right. You talk to your client, and if there’s 

any - - any - - any desire whatsoever on your client’s part for me to tell 

the jury that that statement is to be totally disregarded, I will be happy to 

do that.

Our review of the record shows that after the recess, Defendant began crossexamination of the victim without requesting a curative instruction concerning the 

victim’s prior testimony. Based on our review of the record, “manifest necessity” did not 

require a mistrial. As set forth above, the trial court stated that the victim was very soft 

spoken when he said that Defendant had been caught and was in jail when the victim 

agreed to talk to Ms. Thigpen. Defense counsel did not express any disagreement. Also, 

defense counsel did not specifically request a curative instruction after he was allowed 

time to discuss it with Defendant. Defendant has not met his burden of establishing the 

necessity for a mistrial and is, therefore, not entitled to relief on the issue. We affirm the 

trial court’s denial of the defendant’s motion for mistrial. 

C. Sufficiency of the Evidence. 

Defendant contends that the evidence at trial was insufficient to support his 

conviction for rape. Specifically, Defendant asserts that the evidence failed to show he 

“actually penetrated the victim.” He also states that there were numerous discrepancies 

in the testimony of the victim and J.D. The State responds that the evidence was 

sufficient to sustain Defendant’s convictions. 

The standard for appellate review of a claim challenging the sufficiency of the 

State’s evidence is “whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. 

App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a 

claim of insufficient evidence, appellant must demonstrate that no reasonable trier of fact 

could have found the essential elements of the offense beyond a reasonable doubt. See 

Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is 

predicated on direct or circumstantial evidence, or a combination of both. State v. 

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). 

On appellate review, ‘“we afford the prosecution the strongest legitimate view of 

the evidence as well as all reasonable and legitimate inferences which may be drawn 

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
- 18 -

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of 

witnesses and the weight and value to be given the evidence, as well as all factual 

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). 

This court presumes that the jury has afforded the State all reasonable inferences from the 

evidence and resolved all conflicts in the testimony in favor of the State; as such, we will 

not substitute our own inferences drawn from the evidence for those drawn by the jury, 

nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; 

Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). 

Because a jury conviction removes the presumption of innocence that appellant enjoyed 

at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts 

from the State to the convicted appellant, who must demonstrate to this court that the 

evidence is insufficient to support the jury’s findings. Davis, 354 S.W.3d at 729 (citing 

State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)). 

A applicable to this case, rape is the unlawful sexual penetration of a victim by the 

defendant accomplished by force or coercion, without the consent of the victim, and the 

defendant knows or has reason to know at the time of the penetration that the victim did 

not consent, or where the defendant knows or had reason to know that the victim is 

mentally incapacitated or physically helpless. T.C.A. § 39-13-503(a)(2)-(3). “Sexual

penetration” includes sexual intercourse, cunnilingus, anal intercourse, or any other 

intrusion, however slight, of any part of a person’s body into the genital or anal openings 

of the victim’s body. T.C.A. § 39-13-501(7).

The victim testified that Defendant mixed rum and Mountain Dew prior to the 

rape, and the victim drank two cups of the mixture. The victim said that he began to feel 

lightheaded and off balance. He further said, “Like whenever I was turning or tried to 

move my eyes everything felt like it was going like in slow motion and moving all 

together I guess.” The victim testified that Defendant also showed him and J.D. some 

pornography that was playing on television. Later on, while the victim and J.D. were 

sitting on the bed and talking in the back room of the house, Defendant walked in and 

asked the victim if he wanted to “try anal or anything with a guy,” and the victim told 

him that he did not want to. The next thing the victim remembered was being face down 

and feeling a sharp pain inside his “butt.” He also felt a “ripping sensation.” J.D. 

testified that he was in the room during the rape, and he said that Defendant’s pants were 

unzipped and pulled slightly down. He specifically testified that Defendant was 

penetrating the victim’s anus with Defendant’s penis. He also said that he saw Defendant 

“thrusting” with his body. J.D. testified that the victim’s pants were unzipped and pulled 

down during the rape. J.D. said that he told Defendant to stop and that Defendant was 

hurting the victim. 
- 19 -

The jury, as was its prerogative, obviously accredited the testimony of the State’s

witnesses and resolved any discrepancies in favor of the State. Therefore, we conclude 

that the evidence is sufficient to support Defendant’s conviction for rape. 

D. Sentencing

The Defendant claims the trial court abused its discretion by ordering him to serve 

twelve years for his rape conviction. However, we find that the trial court imposed a 

sentence within the appropriate range after a proper application of the purposes and 

principles of our Sentencing Act.

When the record establishes that the trial court imposed a sentence within the 

appropriate range that reflects a “proper application of the purposes and principles of our 

Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of 

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 

707 (Tenn. 2012). A trial court abuses its discretion when it applies an incorrect legal 

standard, reaches an illogical conclusion, bases its decision on a clearly erroneous 

assessment of the evidence, or employs reasoning that causes an injustice to the 

complaining party.” State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014) (citing State v.

Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). “[A] trial court’s misapplication of an 

enhancement or mitigating factor does not remove the presumption of reasonableness 

from its sentencing determination.” Bise 380 S.W.3d at 709. Moreover, this court may 

not disturb the sentence even if it had preferred a different result. See State v. Carter, 254 

S.W.3d 335, 346 (Tenn. 2008). The same standard applies when a defendant challenges 

the denial of probation or other alternative sentence. State v. Caudle, 388 S.W.3d 273, 

278-79 (Tenn. 2012). 

To facilitate meaningful appellate review, the trial court must state on the record 

the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-

35-210(e) (2010); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the 

articulation of the reasons for imposing a particular sentence . . . should not negate the 

presumption [of reasonableness].” Id. at 705-06. The party appealing the sentence has 

the burden of demonstrating its impropriety. T.C.A. § 40-35-401 (2010), Sent’g Comm’n 

Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, the trial court must consider: (1) the evidence, 

if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and 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 set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

Administrative Office of the Courts as to sentencing practices for similar offenses in 

Tennessee; and (7) any statement the defendant made in the defendant’s own behalf 
- 20 -

about sentencing. See T.C.A. § 40-35-210(b) (2010); State v. Taylor, 63 S.W.3d 400, 

411 (Tenn. Crim. App. 2001). The trial court should also consider the potential or lack of 

potential for rehabilitation or treatment of the defendant in determining the sentence 

alternative or length of a term to be imposed. T.C.A. § 40-35-103(5) (2010).

In determining a specific sentence within a range of punishment, the trial court 

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the sentence 

that should be imposed, because the general assembly set the minimum 

length of sentence for each felony class to reflect the relative seriousness of 

each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, 

by the presence or absence of mitigating and enhancement factors set out in 

§§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2010).

Although the trial court should consider enhancement and mitigating factors, the 

statutory enhancement factors are advisory only. See T.C.A. § 40-35-114 (2010 & Supp. 

2013); see also Bise, 380 S.W.3d at 699 n. 33, 704; Carter, 254 S.W.3d at 343. “[A] trial 

court’s weighing of various mitigating and enhancement factors [is] left to the trial 

court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is 

free to select any sentence within the applicable range so long as the length of the 

sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 

343. “[Appellate courts are] bound by a trial court’s decision as to the length of the 

sentence imposed so long as it is imposed in a manner consistent with the purposes and 

principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

In this case, the trial court properly applied the principles and purposes of 

sentencing and explained its reasoning for the sentence imposed. As such, we review the 

trial court’s sentencing decision for an abuse of discretion with a presumption of 

reasonableness. 

The applicable sentencing range for a Range I offender convicted of a Class B 

felony is 8 to 12 years. T.C.A. § 40-35-112(a)(1)-(2). The trial court found that 

Defendant had “a previous history of criminal convictions or criminal behavior, in 

addition to those necessary to establish the appropriate range.” T.C.A.§ 40-35-114(1). 

The trial court found this factor to apply because Defendant had a history of providing 

alcohol to minors and showing pornography to them. The trial court also made the 

following findings:
- 21 -

In factor number 3 the State would urge that there is more than one 

victim here. The Court is persuaded that the defense has cited law that 

establishes that that factor strictly does not apply. And while the strict 

application of that factor is not appropriate by the Court, the Court does 

believe that [J.D.], who himself was also under the influence of alcohol 

and acknowledged that during the course of this trial, found himself in a 

position of helplessness in trying to come to the rescue of his friend who 

was being raped by [Defendant]. So while I don’t believe the factor 

applies in the strict sense, the facts themselves are something the [court] 

clearly takes into consideration in making a decision. 

In factor 4, whether the victim of the offense was particularly vulnerable 

because of age or physical or mental disability. Again, the Court finds 

itself with a 14 year old boy. I don’t have any evidence before me that 

he was particularly vulnerable. I think the strict application of that 

enhancing factor would be inappropriate based upon the law that the 

Defense has sited [sic] to the Court. But I can’t ignore, while not 

employing that as an enhancement factor, I can’t ignore the fact that 

[Defendant] to some measure incapacitated the victim through his supply 

of alcohol to him. And that in combination with [Defendant’s] size and 

weight made the victim incapable of resisting. So, I don’t find the strict 

application of number 4 to be appropriate, but the facts are certainly to

be taken into consideration in the overall decision of the Court. 

Factor number 6 relates to personal injuries, and the Court would note on 

that regard that the presentencing report in this case establishes that the 

victim has experienced nightmares. He had thought a lot about this - -

this rape that occurred. He has experienced nightmares. He has 

experienced depression to the point where he has wanted to commit 

suicide. And it has caused pain in his anal area. He also notes for the 

Court’s consideration in the last two years he has to undergo many blood 

test[s] to be checked for STD’s. So, it has created fear and anxiety with 

him, apprehension. He also notes that he has been scared to go 

anywhere because of the fact that he lives here in Hickman County and 

[Defendant] in the past has lived here in Hickman County. He - - until 

the trial of this case, the victim was afraid to get out and go places for 

fear that he would see [Defendant]. And that he’s not even felt safe in 

his own home. Clearly the victim has been emotionally injured in a 

significant way. And the victim notes that coming to Court, seeing 

[Defendant] and talking about this has brought all of these feelings back. 

He further notes in the victim impact statement, he felt powerless. He

couldn’t do anything in defense because he was intimidated and that the 
- 22 -

event has put him through so much stress. And following the event he 

has suffered depression, guilt, and stress. 

The State has not supplied the Court with any case from the Appellate 

Court or Supreme Court that would say that under the facts and 

circumstances on this particular case the physical injuries that were 

sustained by the victim, which has resulted in prolonged difficulty with 

hemorrhoids and the emotional injury sustained by the victim which at 

times has caused him to even consider suicide, would be considered 

particularly great. 

Based upon the law the Court has been furnished by the Defense, the 

Court believes that the strict application of that factor might be incorrect. 

But I can’t ignore those facts that I just related to everyone, at least in 

making my overall decision. 

Number 7 is the issue of whether the offense was committed to gratify 

the defendant’s desire for pleasure or excitement. [Defense Counsel] 

and I had a conversation about that when the Defense was arguing that 

there’s no evidence to that effect. The Court just simply at that time and 

still disagrees with the Defense on that point. 

The evidence establishes that [Defendant] approached the victim, asked 

him if he wanted to do anal. The victim declined, and he then came in 

and disrobed the victim, disrobed himself at least partially and 

commenced to rape the victim. That evidence leads to the Court’s 

inescapable conclusion that this conduct of [Defendant] was for his own 

pleasure or excitement. And it was done to gratify his desire for pleasure 

and excitement. So, the Court finds that that factor does in fact apply. 

On factor number 23, again, I have looked at that and it doesn’t include 

alcohol. And the Defense has correctly pointed out that the Legislature 

in including factor number 23 in the enhancing factors specifically uses 

controlled substances, controlled substance analogue and other illegal 

drugs with a minor. In other words it says, the defendant is an adult and 

sells to or gives or exchanges a controlled substance, controlled 

substance analogue or other illegal drug with a minor. So, the Court 

believes that strict application of factor number 23 would not be 

appropriate in reaching a decision. 

But as I mentioned earlier I can’t ignore the fact that part of the M-O of 

[Defendant] was to groom these minors through the use of alcohol and 

pornography. And in this case the use of alcohol rendered both the 

victim and the witness incapable of preventing this attack. So, I’m not 
- 23 -

applying it strictly, but I’m noting that the facts should be taken into 

consideration and I am doing that in some measure. 

As far as mitigating factor number 1, there was no serious bodily injury 

based on the Code definition. The Court agrees with the Defense that 

based upon the definition set forth in our Tennessee Code regarding the 

definition of serious bodily injury, it doesn’t exist. There is clearly 

bodily injury involved here, but it is not of the kind that is described by 

our Legislature. 

See T.C.A. §§ 40-35-114(3), (4), (6), (7), and (23); § 40-35-113(1). 

The State also asked the trial court to consider enhancement factor fourteen in that 

Defendant abused a position of public or private trust and used that in a manner that 

significantly facilitated the commission of fulfillment of the offense. T.C.A. § 40-35-

114(14). The State argued that Defendant had a public trust with the young boys at his 

house by providing him with a place to stay, and he furnished alcohol to them. The trial 

court noted that if J.D. had been the victim in this case, it would have felt more 

comfortable applying this factor. However, the court ultimately refused to apply factor 

fourteen. The trial court then made further findings concerning Defendant’s sentence:

However, when I look at all of the information I have before me and I go 

back to - - I go back to what I talked about earlier. And that’s 

[Defendant’s ] position in connections with his conduct. And you can 

see that in the presentencing report that’s part of the psychosexual 

evaluation and it is under the topic of attitudes. And this is what I was 

trying to talk about earlier. It says: When asked to explain events 

leading up to the sexual offense charged [Defendant] explained that there 

was one victim and one “watcher,” quote, unquote. Both being 14 year 

old boys. [Defendant] made it clear that he had a different version than 

the victim’s. He said that he reported to have met the victims, plural, 

twice because they were real tight with his 18 year old son. 

Well, we know that’s not true. We know [J.D.] had been there multiple, 

multiple times. And we know that [Elizabeth] was as much or more 

involved than [Defendant’s] son. 

And they had all gotten together to hang out. That’s true, [Defendant] 

made his home a place where teenagers go and hang out. And then he 

said he was asleep. And then it says, one victim according to 

[Defendant] said he was raped while the other boy watched. [Defendant] 

described one of the victims as being “gay”, quote, unquote. 
- 24 -

And this is what he says in the presentence - - I mean the psychosexual 

evaluation. He stated that the victims did not live in his neighborhood 

but somewhere in the county. He denied - - he denied knowing where 

either victim lived. Yet the proof in this case as [sic] that - - the proof in 

the case today and before was that he was willing to give them rides to 

places they needed to go, including their homes. 

Then he says the victims lied as he would never commit rape. He 

described rape as “aggressive,” quote, unquote, and he does not feel he is 

aggressive. He has no theory to offer for why the victims would have 

lied about him. 

Now, that was the very question I put to him. And he answered the same 

way to me that he answered to the lady, I believe her name was Brakebill 

[sic] or whatever it was, that did the psychosexual evaluation. Let’s see I 

can get her name here pretty quickly. 

* * *

Yes, Kelly Blackwell. He has no idea, no plausible explanation for why 

all these people would have ganged up on him and lied about him. And 

then he goes on to say this; during this assessment it became evidence 

that [Defendant] has - - has several he blames, meaning he had several 

persons, he blames for his current situation; those being his son, his 

son’s future mother-in-law, the school guidance counselor, the local 

newspaper, the local police and the victims. And this is what I want to 

highlight: Mr. Thornton took no responsibility for the situation or his 

actions. 

So in reaching the Court’s decision regarding the appropriate sentence 

within the range, I keep going back to this notion that [Defendant] is a 

sexual predator. It is that simple. And he poses an extraordinary threat 

to this community. And he is going to continue to pose that threat unless 

and until he acknowledges this culpability. Because until that happens, 

he can’t be rehabilitated and he can’t be treated. 

So, based upon all the evidence I have before me considering enhancing 

and mitigating factors, and the Court’s view of the evidence both today 

and at trial, the Court finds that the sentence should be set at 12 years. 

Because the trial court properly considered the evidence offered by the parties, 

stated on the record what enhancement and mitigating factors were considered, and 

complied with the purposes and principles of sentencing and imposed a within range 
- 25 -

sentence, the trial court did not abuse its discretion in enhancing Defendant’s sentence.

Defendant is not entitled to relief. 

Defendant also argues that he should have been sentenced to probation because his 

twelve-year sentence was excessive and should be reduced. However, since we have 

found that Defendant’s twelve-year sentence was properly imposed and not excessive, 

Defendant is not eligible for probation. A defendant is eligible for probation if the actual 

sentence imposed upon the defendant is ten years or less and the offense for which the 

defendant is sentenced is not specifically excluded by statute. T.C.A. § 40-35-303(a). 

Accordingly, the judgments of the trial court are affirmed. 

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE