IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 5, 2011

STATE OF TENNESSEE v. CARLOS WALLS

Direct Appeal from the Criminal Court for Shelby County

No. 07-02900 Otis W. Higgs, Jr., Judge

No. W2010-01129-CCA-R3-CD - Filed June 29, 2011

A Shelby County jury convicted the defendant, Carlos Walls, of aggravated sexual battery,

a Class B felony. The trial court sentenced him as a Range I, violent offender to twelve years

in the Tennessee Department of Correction. On appeal, the defendant argues that the

evidence was insufficient to support his conviction, that the trial court erred in admitting the

defendant’s statement to the Department of Children’s Services as evidence, and that the trial

court applied improper enhancement factors. Following our review, we affirm the judgment

of the trial court.

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

J.C. MCLIN, J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE R.

MCMULLEN, JJ., joined.

Barry W. Kuhn (on appeal); Robert Wilson Jones, District Public Defender; and Lisa Kutch

and Donna Armstard (at trial), Assistant Public Defenders, Memphis, Tennessee for the

appellant, Carlos Walls.

Robert E. Cooper,Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Carrie Shelton and Scott

Bearup, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Background
On April 24, 2007, a Shelby County grand jury indicted the defendant for the

aggravated sexual battery of L.S., a child under thirteen years old, a Class B felony. The

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matter proceeded to trial on December 14, 2009.

The victim testified that the defendant lived with her family for approximately one

year when she was eight years old. They lived in an apartment but moved to a house some

time around her ninth birthday. The victim recalled the first time that the defendant touched

her vagina, testifying that while they lived in the apartment, he called her into a bedroom,

pulled his pants down, and touched her vagina with a finger. She testified that he touched

her on more than one occasion. The victim said that after they moved to the house, the

defendant touched her vagina while she was taking a bath. She testified that she had locked

the door to keep the defendant out, but he opened the door somehow. He touched her navel

and then touched her vagina while she was in the bathtub. The victim said that sometimes

he took her into his bedroom after she had bathed and would dry her off with a towel, rub

lotion and powder on her, and touch her vagina. The victim testified that the defendant

rubbed “his private part against [hers] and he . . . put his tongue on [her] privates.” She

recalled that he ejaculated once onto her bottom and wiped the ejaculate off with tissue. The

victim said that she did not realize that it was sperm at the time, but she had learned about

it since then. She recalled one occasion at the apartment when the defendant tried to put his

penis in her mouth, but she kept her mouth closed and it only touched her lips. The victim

said that his penis never went inside her mouth or into her vagina. She testified that she

obeyed him when he told her to go into the bedroom because she was afraid of him. The

victim said that the defendant threatened her by saying she would get in trouble if she told

anyone. She testified that he took care of her and her brother while her mother worked. The

victim said that the defendant moved out of the house but she could not remember when.

She told her mother about the times that the defendant had touched her vagina when her

mother began talking to her and her brother about the defendant moving back in with them.

The victim went to counseling at the Department of Children’s Services.

On cross-examination, the victim recalled telling a Child Advocacy Center employee

during an interview that she kicked the defendant when he tried to put his penis inside of her

and that the defendant threatened to kill her.

Memory Shields, the victim’s mother, testified that she met the defendant while they

were working together at Barnes and Noble. They became intimate, and he moved into her

apartment with her and her two children. Ms. Shields was the “primary breadwinner,” and

the defendant took care of the children while she worked. She said that he worked off and

on. She never suspected that anything was wrong, and she trusted him to care for her

It is the policy of this court to refer to minor victims of sexual offenses by their initials. 

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children. Ms. Shields testified that she asked the defendant not to discipline her children and

that it was not necessary for him to bathe L.S. because she was old enough to bathe herself.

Ms. Shields said that the defendant began seeing someone else and moved out of the house.

They remained on “speaking terms.” She said that they began discussing “trying to work it

out” between them within a week after he had moved out. Ms. Shields testified that she

wanted to discuss his moving back in with her children before she agreed to it. When she

asked them how they felt about the situation, L.S. became frightened. She waited to talk to

L.S. about why she was upset until they were away from L.S.’s brother because she did not

want to upset him, also. L.S. told her that the defendant had touched her. Ms. Shields said

that she believed L.S., but she did not know what to do. She called her sister, and based on

her sister’s advice, she reported the situation to the police the day after L.S. told her what

happened.

Letitia Cole, a case manager with the Department of Children’s Services, testified that

she investigated the allegations of sexual abuse made in this case, along with Sergeant Beck

of the Memphis Police Department. She interviewed the defendant at his home and recorded

his statement. Ms. Cole testified that the defendant admitted that he touched the victim’s

vagina on a few occasions after the victim got out of the bathtub. The state played the tape

of the defendant’s recorded statement for the jury. In his statement to Ms. Cole, the

defendant admitted to rubbing the victim’s private parts after she had taken a bath. He also

admitted to doing the same thing to someone else.

Following the close of proof and deliberations, the jury found the defendant guilty as

charged. The trial court sentenced him as a Range I, violent offender to twelve years in the

Tennessee Department of Correction.

Analysis

I. Admission of Prior Bad Acts Evidence (Defendant’s Issue 4)

The defendant argues that the trial court erred by admitting evidence of a prior bad

act committed by the defendant when the evidence of the prior bad act was not relevant to

a contested issue. The state responds that the trial court properly admitted the evidence.

Pursuant to Tennessee Rule of Evidence 404(b), evidence of other crimes, wrongs,

or acts is generally not admissible “to prove the character of a person in order to show action

in conformity with the character trait.” The rationale underlying this rule is that the

admission of such evidence carries with it the inherent risk of the jury convicting the accused

of a particular crime based upon his bad character or propensity to commit the crime rather

than the strength of the evidence. State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The

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risk is greater when the accused’s other bad acts are similar to the crime for which the

accused is on trial. Id.; see also State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).

Nonetheless, evidence of other crimes, wrongs or acts may be admissible where it is

probative of a purpose other than the accused’s propensity. Tenn. R. Evid. 404(b). Although

Rule 404(b) does not explicitly list the exceptions under which evidence of prior crimes,

wrongs, or acts may be admitted, our courts have held that such evidence may be admissible

to show another purpose such as: motive, intent, guilty knowledge, identity of the defendant,

absence of mistake, or the existence of a common scheme. See, e.g., State v. Berry, 141

S.W.3d 549, 582 (Tenn. 2004); Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975). To

admit such evidence, Rule 404(b) specifies the following:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record the

material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear and

convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Should a review of the record indicate that the trial court substantially

complied with the requirements of Rule 404(b), the trial court’s admission of the challenged

evidence will remain undisturbed absent an abuse of discretion. State v. James, 81 S.W.3d

751, 759 (Tenn. 2002); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

In this case, the trial court did not follow the appropriate procedure required by Rule

404(b). Prior to the publication of the taped statement, the defense objected to the admission

of the entire tape and requested that the trial court redact a portion of the statement in which

the defendant admitted to a prior sexual battery against another child. The trial court sent the

jury out to hear the objection. The trial court determined that the defendant’s admission to

a prior bad act was prejudicial but overruled the defendant’s motion and stated that it would

issue a curative instruction to the jury. After the publication of the taped statement, the trial

court held a 404(b) hearing and determined that the evidence of the prior bad act was relevant

to the defendant’s “[i]dentity[,] [s]cheme[,] [m]otive[,] [and] [i]ntent.” In our view, holding

a 404(b) hearing after the admission of the evidence and publication of the evidence to the

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jury was not substantial compliance with Rule 404(b). Therefore, the trial court’s

determination of admissibility is not subject to deference.

Here, there is nothing on the record to suggest that the defendant’s admission of a

prior bad act was probative of a purpose other than to show his propensity. His identity and

motive were not contested issues, and there was no argument that the prior bad act and the

charged offense were part of a scheme. We fail to see how the admission of the prior bad

act evidence was probative of his intent to commit the instant offense. The risk of unfair

prejudice was very high as it involved a similar offense. See Rickman, 876 S.W.2d at 828.

The limiting instructions given to the jury “worked to alleviate the prejudicial effect of the

evidence, . . . presum[ing] that [the jury] follow[ed] the instructions given to them by the

trial court.” State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). Nevertheless, in balancing

the risk of unfair prejudice against the minimal probative value, we conclude that danger of

unfair prejudice outweighed the probative value and that the trial court erred in admitting the

evidence of the defendant’s prior bad act.

However, we further conclude that the trial court’s error was harmless. When

undertaking a harmless error analysis, this court must consider whether “an error more

probably than not had a substantial and injurious impact on the jury’s decision-making.”

State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008). “The line between harmless and

prejudicial error is in direct proportion to the degree of the margin by which the proof

exceeds the standard required to convict beyond a reasonable doubt.” State v. Carter, 714

S.W.2d 241, 248 (Tenn. 1986). Here, the victim’s testimony combined with the defendant’s

admission provided overwhelming proof of his guilt. Therefore, the trial court’s error in

admitting prior bad act evidence was harmless.

II. Sufficiency of the Evidence (Defendant’s Issue 5)

The defendant argues that the evidence was insufficient to support his conviction.

Specifically, he argues that “the jury did not have one, clear, specific event to consider”

because there was “no testimony as to the date or time of the event.”

We begin our review by setting forth the well-established rule that once a jury finds

a defendant guilty, his or her presumption of innocence is removed and replaced with a

presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on

appeal, the convicted defendant has the burden of demonstrating to this court why the

evidence will not support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58

(Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the

defendant must establish that no “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,

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99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003);

see Tenn. R. App. P. 13(e). In contrast, the jury’s verdict approved by the trial judge

accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn from that evidence. Carruthers,

35 S.W.3d at 558. Questions concerning the credibility of the witnesses, conflicts in trial

testimony, the weight and value to be given the evidence, and all factual issues raised by the

evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the evidence. State v. Rice,

184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the jury’s inferences drawn

from the circumstantial evidence with our own inferences. State v. Reid, 91 S.W.3d 247, 277

(Tenn. 2002).

Aggravated sexual battery is the “unlawful sexual contact with a victim by the

defendant or the defendant by a victim accompanied by any of the following circumstances:

[t]he 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.” Id. § 39-13-501(6). Additionally,

“‘[i]ntimate parts’ includes the primary genital area, groin, inner thigh, buttock or breast of

a human being.” Id. at (2).

Because the proof tended to show multiple incidences of sexual contact, the state

elected to submit for the jury’s consideration “the alleged act of sexual contact of the

defendant touching the vagina of [L.S.] after taking a bath when she was nine (9) years old

while living at the address on King in Shelby County, Tennessee.” The defendant does not

appear to challenge the specificity of the state’s election but rather that the proof was

insufficient to prove the elected offense; nevertheless, we note that “[t]he State is not

required to prove that an offense was committed on a specific date unless the date is an

element of the crime or essential to proving the offense.” State v. Brown, 992 S.W.2d 389,

392 (Tenn. 1999) (citing State v. Byrd, 820 S.W.2d 739, 741-42 (Tenn. 1991)). Viewed in

the light most favorable to the state, the proof at trial showed that the defendant touched the

victim’s vagina while she was in the bathroom of the house that they lived in when the victim

was nine years old. The victim testified to a specific occasion when she locked the bathroom

door to take a bath, but the defendant entered the bathroom anyway and touched her navel

and vagina. The victim testified generally about many other occasions when the defendant

touched her. Another panel of this court has held that when “particularized testimony was

specific to a single incident” and other testimony was general, “the jury must have been

relying on this specific incident in reaching its verdict.” State v. Anthony J. Ramey, No.

E2003-01840-CCA-R3-CD, 2004 WL 1580662, at *10 (Tenn. Crim. App., at Knoxville,July

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15, 2004). Similarly, we conclude that in this case, the victim’s testimony regarding the

incident in the bathroom was sufficient for the jury to find the defendant guilty of aggravated

sexual battery on that specific occasion. Therefore, the defendant’s argument is without

merit.

III. Sentencing (Defendant’s Issues 1-3)

The defendant argues that he received an excessive sentence because the trial court

misapplied two enhancement factors. Specifically, he argues that the trial court did not find

that “physical and mental limitations resulting from the victim’s age rendered the victim

particularly vulnerable” and that he was not in a position of private trust with the victim.

An appellate court’s review of a challenged sentence is de novo on the record with a

presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d).

The Sentencing Commission Comments to this section of the statute indicate that the

defendant bears the burden of establishing that the sentence is improper. When the trial court

follows the statutory sentencing procedure and gives due consideration to the factors and

principles relevant to sentencing, this court may not disturb the sentence. See State v. Carter,

254 S.W.3d 335, 344-45 (Tenn. 2008).

As a Range I offender, the defendant was subject to a sentence of eight to twelve years

for aggravated sexual battery, a Class B felony. See Tenn. Code Ann. § 40-35-112(a)(2).

The trial court found that no mitigating factors applied. The trial court found that the

following enhancement factors applied: (1) the defendant had a previous history of criminal

convictions beyond that necessary to establish the sentencing range; (2) the victim was

particularly vulnerable because of age; (3) the defendant, prior to trial, had failed to comply

with a sentence involving release into the community; and (4) the defendant abused a

position of private trust. The trial court sentenced the defendant to twelve years at 100%.

The defendant challengesthe trial court’sfindings that the victim was particularly vulnerable

because of age and that he abused a position of private trust.

In State v. Adams, the Tennessee Supreme Court held that

the vulnerability enhancement relates more to the natural physical and mental

limitations of the victim than merely to the victim’s age . . . . The factor can be

used . . . if the circumstances show that the victim, because of [her] age or

physical or mental condition, was in fact “particularly vulnerable,” i.e.,

incapable of resisting, summoning help, or testifying against the perpetrator.

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864 S.W.2d 31, 35 (Tenn. 1993), superseded by statute on other grounds, as recognized by

State v. Jackson, 60 S.W.3d 738 (Tenn. 2001). The state has the burden of proving that the

victim’s limitations rendered her particularly vulnerable. Id. In our view, the state did not

carry its burden. It merely argued that the factor should apply because of the victim’s age

rather than any limitations due to her age. The defendant elicited proof during the trial that

the victim did resist at least once. Therefore, we conclude that the trial court erred in

applying this enhancement factor.

The defendant contends that the defendant was not in a position of private trust with

the victim. It is well-settled that proper application of the private trust factor requires that

the court examine “the nature of the relationship,” and whether that relationship “promoted

confidence, reliability, or faith.” State v. Gutierrez, 5 S.W.3d 641, 646 (Tenn. 1999) (quoting

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996)). “A relationship which promotes

confidence, reliability, or faith, usually includes a degree of vulnerability.” Id. It is the

exploitation of this vulnerability to achieve the criminal offense which is deemed more

blameworthy and thus justifies application of the enhancement factor. Id. Here, the

defendant only had access to the victim because her mother left her in his care while she went

to work. Her mother trusted him to babysit her and take her to and from school.

Additionally, the defendant was her mother’s live-in boyfriend. As the Tennessee Supreme

Court noted in Kissinger, “[t]he position of parent, step-parent, babysitter, teacher, coach are

but a few obvious examples” of positions of private or public trust. 922 S.W.2d at 488. We

conclude that the trial court did not err in applying this enhancement factor.

An error in the application of enhancement factors will not necessarily result in

modification of the sentence if the trial court, in determining the specific sentence,

considered the nature and characteristics of the crime, the character and background of the

defendant, and the purposes of the Sentencing Act. See Tenn. Code Ann. § 40-35-210(b).

Despite the trial court’s reliance on an inapplicable enhancement factor, the record supports

the court’s consideration of the remaining three enhancement factors. The record reflects

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that in determining the specific sentence length, the trial court considered the provisions of

Tennessee Code Annotated section 40-35-210, as well as the required principles of

sentencing. As such, we affirm the length of the sentences as imposed.

___________________________________

J.C. McLIN, JUDGE

 The defendant’s criminal record supports the application of the two enhancement factors that he 2

did not challenge on appeal.

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