IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 8, 2014

STATE OF TENNESSEE v. DWIGHT GOSSETT

Appeal from the Criminal Court for Shelby County

No. 1201774 Lee V. Coffee, Judge

No. W2013-01120-CCA-R3-CD - Filed November 21, 2014

The defendant, Dwight Gossett, was convicted of two counts of aggravated sexual battery,

Class B felonies, and sentenced to two consecutive twelve-year sentences for an effective

sentence of twenty-four years. On appeal, he argues that: (1) the trial court erred in admitting

the forensic interviews of the victims as substantive evidence pursuant to Tennessee Code

Annotated section 24-7-123 (2010) because the statute is unconstitutional; (2) the evidence

is insufficient to sustain his convictions; (3) the trial court erred in admitting testimony of the

defendant’s prior bad act; (4) the trial court committed plain error when it failed to require

the State to make an election of offenses and when it failed to instruct the jury as to the

election of offenses; (5) the State made a prejudicially improper closing argument; (6) the

trial court imposed an excessive sentence inconsistent with the principles of the Sentencing

Act; and (7) the cumulative effect of these errors violated the defendant’s due process rights.

After thoroughly reviewing the record, the briefs of the parties, and the applicable law, we

conclude that the trial court erroneously admitted evidence of the defendant’s prior bad act

and that the prosecutor delivered an improper closing argument. Accordingly, we reverse

the judgments of the trial court and remand the case for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;

Case Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.

MCMULLEN, J., joined. JERRY L. SMITH, J., not participating.

Stephen Bush, District Public Defender and Phyllis Aluko, Assistant District Public

Defender, Memphis, Tennessee, for the appellant, Dwight Gossett.
Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Carrie

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

OPINION

Facts and Procedural History

This case arose out of the defendant’s inappropriate sexual contact with the minor

victims. Between October 15, 2008, and September 2, 2010, the defendant inappropriately

touched his step-granddaughters, A.R. and A.C.R., several times. The contact occurred at

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the defendant’s residence, a place where the victims frequently spent time. The victims’

mother often took the victims to the defendant’s residence, and the victims’ mother and

grandmother had no issue placing the victims in the care of the defendant. At the time of the

trial, A.R. was ten years old and A.C.R. was eight years old.

The first incident involved A.R. when she was eight years old and occurred on the

patio of the defendant’s residence. A.R. had been playing “dress-up” with her younger sister

when she went to the backyard to check on the “kiddie pool” that the defendant and the

victims’ grandmother had recently purchased. The defendant was working on the pool,

which A.R.’s mother testified was acquired in the summer of 2010, in the backyard. A.R.

was wearing a “loose tank top” that belonged to her grandmother and a “dress-up tutu[.]”

When A.R. was on the back patio, the defendant approached her, pulled down her tank top,

and kissed one of her breasts twice. The defendant asked A.R. if she liked it and when she

told him, “No,” the defendant told her “Shh[.]” A.R. took this to mean that she should not

mention the incident to anyone. A.R. did not tell her mother about the incident because she

thought she would get in trouble, but she did tell her younger sister, A.C.R., about the

defendant’s actions.

Sometime after the incident on the patio, A.R. was at the defendant’s residence

washing her grandmother’s car with her younger sister and several friends from the

neighborhood. A.R. went inside of the house alone to get popsicles, and she ran into the

defendant. The defendant looked down, pointed at his penis, and asked A.R. if she wanted

to touch it. A.R. said, “No,” and the defendant attempted to pull A.R.’s hand toward his

penis. He managed to pull her hand to within inches of his penis, but A.R. did not touch it.

Frightened, she ran back outside without the popsicles.

In order to protect their identity, we will refer to the victims and other minors by their initials. 

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A third incident occurred when A.R. was playing “house” with her younger sisters in

the living room of the defendant’s residence. The defendant entered the room and asked for

one of the girls to get him a drink, and A.R. agreed. A.R. brought the drink to the defendant

in his bedroom, where the defendant was alone and seated in his desk chair. The defendant

then rose and pulled his pants and underwear down to his “mid-thigh,” and A.R. saw the

defendant’s penis. After both of these incidents, the defendant told A.R., “Shh,” and he

instructed her not to tell anyone about the incident. After the third incident, A.R. told her

grandmother that the defendant was “sexy” in an attempt to convey to her grandmother that

the defendant was doing sex-related things to her.

The incident with A.C.R. also occurred in the defendant’s bedroom. A.C.R. brought

the defendant lunch in his room, and the defendant was seated at his desk using his computer.

Once A.C.R. entered the room, the defendant stood up, unbuckled his pants, grabbed

A.C.R.’s hand and placed it inside of his pants. A.C.R. attempted to move her hand to the

side, and she touched the defendant’s skin. The defendant told her, “Shh,” and A.C.R. then

pulled her hand away and exited the room. A.C.R. testified that, prior to this incident, she

had never spoken to the defendant about having seen or touched someone else’s penis.

In early September 2010, A.R. and A.C.R. went to dinner with their mother, younger

siblings, aunt, and two cousins. A.R. and A.C.R. were at a separate table with their cousins,

and A.C.R. told her cousin C.J. that she had a secret that she would not tell anyone but him.

C.J. recalled that A.C.R. was very calm, which was unusual because she was typically

energetic. C.J. testified that A.C.R. told him that her grandfather made her touch his private

parts, although A.C.R. testified that A.R. told C.J. about the abuse. C.J. looked alarmed

when he heard about the touching, prompting the victims’ aunt to ask what the children were

talking about. The victims then told their mother for the first time about the incidents of

abuse. The victims’ mother contacted the police and the victims’ grandmother and made an

appointment for the victims at the Child Advocacy Center. The victims’ grandmother called

police after speaking with her daughter, and the defendant quickly moved out of the home

after the allegations were made.

At the time the allegations were made against the defendant, Lieutenant Carl Ray was

a sergeant and investigator with the Memphis Police Department’s Child Abuse Sex Crimes

division. He was assigned to the victims’ case and scheduled the victims for a forensic

interview. Lieutenant Ray did not conduct these interviews, but he observed the interviews

from a separate room. Lieutenant Ray personally observed A.C.R.’s interview and later went

back and reviewed the tape of A.R.’s interview. As a result of the victims’ interviews,

Lieutenant Ray contacted the defendant and asked him to come in for an interview.

The defendant came on his own to the interview and was not shackled or handcuffed.

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Before speaking with the defendant, Lieutenant Ray advised the defendant of his Miranda

rights. The defendant signed a rights waiver form indicating that he understood his rights

and was voluntarily waiving them. The defendant told Lieutenant Ray that he was being

charged with “[s]exual abuse or something.” When asked to describe what occurred to result

in these allegations, the defendant recalled an incident when A.C.R. entered his bedroom

while he was changing his shirt and would not leave. A.C.R. began “bragging about what

she had seen on other males, including full exposure of the genitals and touching.” The

defendant said “mean like this[?]” and touched A.C.R.’s hand to his belt buckle. A.C.R. had

a “shock[ed] look on her face,” seeming surprised that the defendant “called her out on her

bragging.” He told Lieutenant Ray that he “never had a problem” getting A.C.R. out of his

room after the incident. He recalled that his wife and A.R. were in the house during this

incident.

The defendant stated that he was alone with A.R. when she was younger and recalled

being outside with A.R. by the pool. When asked if he ever touched or kissed A.R.’s breast,

the defendant responded, “No, I don’t remember. I can’t thin[k] of any thing that could have

happened to make her think that.” He denied ever pulling down his boxers and telling A.R.

to touch his penis while A.C.R. was in the room, and he stated that he did not wear boxers.

He stated that he may have rubbed the victims’ breasts when “picking them up or something”

because the victims were small and the defendant had large hands that covered “a lot of

area.” He admitted that a former girlfriend made charges with the Department of Human

Services (DHS) alleging that he abused one of her daughters. He stated that he never heard

from DHS and that the allegation was twenty-five or thirty years old. When asked if he ever

touched or fondled the victims in an inappropriate manner, he responded, “I would say no.”

At trial, the defendant testified he was in his room changing his shirt when A.C.R. told

him, “I have seen all of that.” He stated that he touched A.C.R.’s hand to his belt buckle “to

see if she was telling the truth” about having seen the private parts of other men. He stated

that he had asked her to leave his room while he changed his shirt and performed his “test”

to get her to leave the room. He reiterated that he never touched either victim

inappropriately.

L. testified that she began living with her mother and the defendant, who were dating

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at the time, when she was fourteen years old. Whenever her mother was “out selling Avon”

or taking her sister to receive allergy shots, the defendant had sexual intercourse with L. in

the bedroom and the garage. This occurred over a two-year period until the Department of

Social Services removed L. from the home.

 We refer to this witness by her first initial in order to protect her identity because she also was a 2

minor at the time of her abuse. 

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The defendant testified that L.’s mother made the allegations against him “as an

excuse to turn [L.] over to the State when [her mother] left town.” He stated that he did not

find out about the allegation until years later, and he testified that he did not have sexual

relations with L. He recalled that L. was fourteen to seventeen years old when she began

living with him.

At the conclusion of the proof, the jury found the defendant guilty on both counts.

The court sentenced the defendant as a Range I, standard offender to twelve years on each

count to be served consecutively, for an effective sentence of twenty-four years.

ANALYSIS

I. Constitutionality of T.C.A. § 24-7-123

The defendant argues that Tennessee Code Annotated section 24-7-123 is

unconstitutional for numerous reasons. He also argues that the trial court abused its

discretion in determining that the forensic interviewers possessed the necessary criteria to

warrant the admissibility of the recorded interviews of the victims and in determining that

the interviews were admissible as prior consistent statements. The statute permits the

admission, either as substantive evidence or as a prior consistent statement, of a video

recording of an interview of a child under the age of thirteen by a forensic interviewer where

the child describes any act of sexual contact performed with or on the child by another.

T.C.A. § 24-7-123(a). The interview “may be considered for its bearing on any matter to

which it is relevant evidence at the trial” of the defendant. Id. In order to admit the video,

the child must testify, under oath, that the offered recording is an accurate recording of the

events contained in the recording, and the child must be available for cross-examination. Id.

at (b)(1). The trial court must be reasonably satisfied that the interview possesses

particularized guarantees of trustworthiness, and the court shall consider a variety of factors

in making this determination. Id. at (b)(2)(A)-(K). The forensic interviewer conducting the

interview must possess specific educational, employment, and training qualifications. Id. at

(b)(3)(A)-(H). The entire interview must be recorded, the recording must be both visual and

oral and recorded on film, video, or a similar audio-visual means, and every voice heard on

the recording must be properly identified. Id. at (b)(4)-(6). The trial court must make

specific findings of fact explaining its ruling regarding the admissibility of the interview. Id.

at (d). The recording shall not become a public record in any legal proceeding, and the trial

court shall order the recording to be sealed and preserved at the conclusion of the trial. Id.

at (e).

Prior to trial, the court held an evidentiary hearing to determine the admissibility of

the victims’ forensic interviews. Multiple witnesses, including the victims and their forensic

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interviewers, testified. At the conclusion of the hearing, the trial court found that the statute

was constitutional and that all of the statutory requirements for admission were met. The

court also determined that the forensic interviews would be admissible as prior consistent

statementsto rehabilitate the witnessesif their credibility was attacked on cross-examination.

In order for this court to address the merits of a constitutional challenge, there must

be a genuine “case” or “controversy” present, and the defendant must have standing to bring

the challenge. We will not pass on the constitutionality of a statute unless absolutely

necessary for the determination of the case and of the rights of the parties to the litigation.

County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996).

We are charged with upholding the constitutionality of a statute whenever possible.

Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). “It is well-settled in Tennessee that

‘courts do not decide constitutional questions unless resolution is absolutely necessary to

determining the issues of the case and adjudicating the rights of the parties.’” Waters v.

Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn.

2002)); see Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Therefore, we begin our

analysis “with the presumption that an Act of the General Assembly is constitutional[,]” and

we are required to “‘indulge every presumption and resolve every doubt in favor of the

statute’s constitutionality.’” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (quoting

Taylor, 70 S.W.3d at 721. Issues of constitutional interpretation present questions of law,

which this court reviews de novo with no presumption of correctness regarding the legal

conclusions of the trial court. State v. Robinson, 29 S.W.3d 476, 480 (Tenn. 2000).

Here, the trial court admitted the forensic interviews of the victims for two reasons.

First, the trial court admitted the evidence pursuant to T.C.A. § 24-7-123, and second, the

trial court ruled that the evidence was admissible as a prior consistent statement for the

purpose of rehabilitating a witness. Recently, a panel of this court addressed the

constitutionality of § 24-7-123 and noted that if the interview was admissible at trial pursuant

to another rule of evidence, it would be unnecessary to determine the constitutionality of

section 24-7-123 as a method of evidentiary admission. State v. Barry D. McCoy, No.

M2011-02121-CCA-R3-CD, 2012 WL 1941775, at *4 (Tenn. Crim. App. May 30, 2012),

perm. app. denied (Tenn. Sept. 19, 2012). This court has repeatedly held that a prior

consistent statement is admissible as an exception to the hearsay rule to rehabilitate a witness

after an impeaching attack on the witness’s testimony. State v. Meeks, 867 S.W.2d 361, 374

(Tenn. Crim. App. 1993). Therefore, we must first determine whether the trial court properly

admitted the interviews as prior consistent statements. If the interviews were properly

admitted as an exception to the rule against hearsay, we need not address the defendant’s

constitutional claims because resolution of the constitutional issue is not necessary to

determine the issues of the case. See Barry D. McCoy, 2012 WL 1941775, at *4.

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The trial court possesses the sound discretion to determine the admissibility of

evidence at trial and that determination will be upheld unless there is a showing that the trial

court abused its discretion. See State v. Banks, 271S.W.3d 90, 116 (Tenn. 2008). The

general rule is that prior consistent statements are inadmissible to bolster a witness’s

credibility in the absence of an impeaching attack on that testimony. Meeks, 867 S.W.2d at

374 (citing State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980)). However,

several exceptions to this rule exist, and “prior consistent statements may be admissible, as

an exception to the rule against hearsay, to rehabilitate a witness when insinuations of recent

fabrication have been made, or when deliberate falsehood has been implied.” State v.

Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988). The impeaching attack on the

witness’s credibility need not be successful in order to admit the prior consistent statement,

and wide latitude is given when determining whether the witness’s credibility has been

sufficiently assailed or attacked. State v. Albert R. Neese, No. M2005-00752-CCA-R3-CD,

2006 WL 3831387, at *6 (Tenn. Crim. App. Dec. 15, 2006), perm. app. denied (Tenn. Apr.

23, 2007). The prior consistent statement is not hearsay because it was offered to rehabilitate

the witness and not to prove the truth of the matter asserted. Tenn. R. Evid. 801(c).

On cross-examination, defense counsel asked A.R. why she did not immediately tell

her mother or grandmother about the abuse, with the inference being that she did not disclose

the incident because the touching did not occur. Defense counsel elicited an admission from

both victims that they continued to go to the defendant’s residence after the abuse occurred,

insinuating that they would have immediately stopped the visits if the abuse actually

happened. Both victims also admitted that they had a better memory of the events at the time

they disclosed the abuse than they did at the time of trial. The cross-examination challenged

the credibility of the victims, as it created the insinuation that the victims were lying about

being touched by the defendant. As a result, the forensic interviews were admissible to

rehabilitate the credibility of the victims and to corroborate their testimony that the abuse did

in fact take place. Further, the trial court provided a limiting instruction to the jury that any

prior consistent statements could only be used to assess the credibility of the witness and

were not to be considered as substantive evidence. We conclude that the trial court did not

abuse its discretion in admitting the videos as prior consistentstatements. Because the videos

were properly admitted as extrinsic evidence of prior consistent statements, we need not

address the defendant’s constitutional challenges to the statute or his claims that the forensic

interviewers did not possess the statutory criteria for admissibility. See Barry D. McCoy,

2012 WL 1941775, at *4.

II. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support his convictions for

aggravated sexual battery. Specifically, he claims that there was no evidence that he kissed

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A.R.’s breast for his own sexual arousal or gratification and that the State failed to introduce

evidence that either A.R. or A.C.R. actually touched the defendant’s private part. He also

contends that the appropriate standard of review for the sufficiency of the evidence permits

this court to affirm the conviction only when we determine “that the evidence, if believed by

the jury, would convince the average mind of the [defendant’s] guilt beyond a reasonable

doubt.”

When a defendant challenges the sufficiency of the evidence, the relevant question

for this court is “whether, after reviewing the evidence in the light most favorable to the

State, 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). On appeal, “‘the State

is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate

inferences that may be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (2003)

(quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore, this court will not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)

(superseded by rule). Instead, it is the trier of fact, not this court, who resolves any questions

concerning “the credibility of witnesses, the weight and value to be given the evidence, as

well as all factual issues raised by the evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997). A guilty verdict removes the presumption of innocence and replaces it with a

presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then

shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support

the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court applies the

same standard of review regardless of whether the conviction was predicated on direct or

circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

Tennessee Code Annotated section 39-13-504(a)(4) defines aggravated sexual battery

as “unlawful sexual contact with a victim by the defendant or the defendant by a victim”

when the victim is less than thirteen years of age. The code further provides that:

“Sexual contact” includes the intentional touching of the victim’s, the

defendant’s, or any other person’s intimate parts, or the intentional touching

of the clothing covering the immediate area of the victim’s, the defendant’s,

or any other person’s intimate parts, if that intentional touching can reasonably

be construed as being for the purpose of sexual arousal or gratification.”

T.C.A. § 39-13-501(6). “Intimate parts” includes “the primary genital area, groin, inner

thigh, buttock, or breast of a human being[.]” Id. § 39-13-501(2).

The defendant contends that the State failed to prove that his alleged kissing of A.R.’s

breast was done for the purposes of sexual gratification. This court has stated that in cases

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where the sufficiency of the evidence of the defendant’s intent in challenged, “intent is

almost always proven circumstantially.” State v. Hayes, 899 S.W.2d 175, 180 (Tenn. Crim.

App. 1995). Viewed in the light most favorable to the State, the proof at trial showed that

A.R. and A.C.R. frequently spent time at the defendant’s residence. One afternoon, A.R. had

been playing “dress-up” with her sister, and she was wearing a tank top that belonged to her

grandmother. She went outside onto the back patio, and the defendant pulled down her tank

top and kissed her breast twice. A.R. was alone with the defendant when the incident

occurred. The defendant asked A.R. if she liked the kissing. When A.R. said, “No,” the

defendant told her, “Shh,” which A.R. took to mean that she should not tell anyone about the

incident. Given that the defendant waited until he was alone with A.R., asked her if she liked

it when he kissed her breast, and told her not to tell anyone about the incident, a rational trier

of fact could have found that the touching was intentional and could reasonably be construed

as having been done for the purpose of sexual arousal or gratification.

The defendant also contends that the evidence is insufficient to show that A.C.R.

actually touched an intimate part of the defendant. The victim testified that the defendant

unbuckled his pants, grabbed her hand, and placed it inside of his pants. She testified that

her hand went underneath the defendant’s underwear and touched his skin. The jury also

heard the testimony of the defendant that he only placed A.C.R.’s hand on his belt buckle.

The jury, through its verdict, credited the testimony of A.C.R. over the testimony of the

defendant. It is the jury who assesses the credibility of the witnesses and resolves factual

questions raised by the evidence. Bland, 958 S.W.2d at 659. We conclude that the evidence

was sufficient for a rational trier of fact to find that the defendant intentionally pulled

A.C.R.’s hand toward his groin area and that she touched either the defendant’s primary

genital area, groin, or inner thigh. The defendant is not entitled to relief as to this issue.

III. Prior Bad Act

The defendant argues that the trial court abused its discretion in admitting L.’s

testimony that the defendant had sexual intercourse with her for two years beginning when

she was fourteen years old. The alleged offenses occurred some thirty years prior to the

defendant’s trial. Specifically, he contends that the probative value of the evidence was

outweighed by the prejudicial effect.

Tennessee Rule of Evidence 404(b) states that “[e]vidence of other crimes, wrongs,

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

conformity with the character trait.” However, such evidence may be admissible for other

purposes, such as illustrating motive, intent, guilty knowledge, the identity of the defendant,

absence of mistake or accident, and common scheme or plan. Collard v. State, 526 S.W.2d

112, 114 (Tenn. 1975); Tenn. R. Evid. 404(b) Advisory Comm’n Cmt. In order to admit

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evidence of a prior bad act:

(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)(1)-(4). Our standard of review of the trial court’s determinations

under Tennessee Rule of Evidence 404(b) is whether the trial court’s ruling was an abuse of

discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). However, this decision is

entitled to deference only if the trial court substantially complied with the procedural

requirements of Rule 404(b). Id.

Here, the trial court conducted a hearing to determine whether L.’s testimony was

admissible. After hearing the testimony of L., the court determined that the testimony was

relevant to the defendant’s intent, motive, or lack of accident or mistake, as the defendant

told police that he may have inadvertently touched the victims and that he attempted to teach

A.C.R. a lesson by grabbing her hand and placing it on his belt buckle. The court also

determined the testimony was relevant to rebut the defendant’s claim of innocence. The

court found that the testimony of L. and the defendant’s own admission that he was accused

of abusing an ex-girlfriend’s daughter provided clear and convincing evidence that the

defendant committed the prior bad act. By allowing the testimony, the court implicitly found

that the probative value was not outweighed by the danger of unfair prejudice. We conclude

that the trial court substantially complied with the requirements of Rule 404(b), and we

review the decision under the abuse of discretion standard. See Dubose, 953 S.W.2d at 652.

Our supreme court has explicitly rejected a general “sex crimes” exception to Rule

404(b) that would permit the admissibility of uncharged prior sex crimes. State v. Rickman,

876 S.W.2d 824, 829 (Tenn. 1994). The court reasoned that:

The general rule excluding evidence of other crimes is based on the

recognition that such evidence easily results in a jury improperly convicting a

defendant for his or her bad character or apparent propensity or disposition to

commit a crime regardless of the strength of the evidence concerning the

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offense on trial.

Id. at 828.

The danger of a jury convicting a defendant based upon his propensity to commit a

crime, rather than the evidence at trial, is especially heightened in the prosecution of a sex

crime where the victim is a child because “‘[t]here is no subject which elicits a more

passionate response than the sexual exploitation of children. Society abhors, and rightfully

so, the victimization of the defenseless child.’” State v. Rodriguez, 254 S.W.3d 361, 376

(Tenn. 2008) (quoting United States v. Villard, 700 F.Supp. 803, 809 (D.N.J. 1988)).

Therefore, evidence of a prior, uncharged sex crime is generally admissible only when an

indictment charges that a number of offenses occurred during a specified period of time but

does not allege specific dates on which the offenses occurred. Rickman, 876 S.W.2d at 828.

Although the testimony wassomewhat probative of the defendant’sintent and to rebut

a claim of accident or mistake, the probative value was decreased by the distance in time

from the prior bad acts, the dissimilarity in the ages of the victims of the two episodes, and

the difference in the actual crime committed. Further, the evidence was extremely

prejudicial. “Our supreme court has long recognized ‘the inherently inflammatory nature’

of evidence of other sexual offenses and recognized that ‘the danger of prejudice may require

the sacrifice of relevant evidence in order to assure fairness to the criminal defendant.’”

State v. Montgomery, 350 S.W.3d 573, 584-85 (Tenn. Crim. App. 2011) (quoting State v.

Burchfield, 664 S.W.2d 284, 287 (Tenn. 1984)). The underlying rationale behind Rule

404(b)’s exclusion of evidence of prior bad acts is the inherent risk that the jury will convict

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

than the strength of the evidence. Rickman, 876 S.W.2d at 828. This risk increases when the

prior bad conduct is the same or similar to the offense alleged at trial. Id. The defendant was

on trial for aggravated sexual battery, and the jury heard testimony about an uncharged,

thirty-year-old rape that occurred outside the time period alleged in the indictment.

Accordingly, we conclude that the probative value of the evidence was not outweighed by

the danger of unfair prejudice and that the trial court erred in admitting the testimony of L.

We must next determine whether this error was harmless.

Our supreme court has recognized three categories of error: structural constitutional

error, non-structural constitutional error, and non-structural error. Rodriguez, 254 S.W.3d

at 371; State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003). Rulings regarding the

admissibility of evidence are analyzed as non-structural error, as “an evidentiary ruling

ordinarily does not rise to the level of a constitutional violation.” Powers, 101 S.W.3d at

397. Tennessee Rule of Appellate Procedure 36(b) controls the analysis of a non-structural

error, and it places the burden on the defendant to demonstrate that the error “‘more probably

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than not affected the judgment or would result in prejudice to the judicial process.’”

Rodriguez, 254 S.W.3d at 371-72 (quoting Tenn. R. App. P. 36(b)). This court must consider

the record in its entirety, including “the properly admitted evidence of the defendant’s guilt.”

Id. at 372 (citing State v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000). When the amount of

guilt is substantial, the defendant bears a heavier burden “to demonstrate that a nonconstitutional error involving a substantial right more probably than not affected the outcome

of the trial.” Id. (citations omitted).

The purpose of a harmless error analysis is for this court “to ascertain the actual basis

for the jury’s verdict,” and the “crucial consideration is what impact the error may reasonably

be taken to have had on the jury’s decision-making.” Id. An error is not harmless “[w]here

[the] error more probably than not had a substantial and injurious impact on the jury’s

decision-making.” Id. Cases that present close questions of witness credibility make it less

likely that an error will be harmless because “[t]he harmful effects of propensity evidence

that undermines a defendant’s credibility increase in close cases when the outcome is

dependent on the jury’s assessment of the witnesses’ credibility.” Id. at 377.

Tennessee courts have repeatedly held that admission of uncharged sexual activity of

the defendant creates an unfair prejudice that warrants the reversal of a conviction. See id.

at 377-78 (concluding that in a case where the testimony of the victims was the only evidence

of the defendant’s abuse, admission of evidence that the defendant viewed or possessed child

pornography to show his propensity to abuse children was prejudicially unfair to the

defendant “and, more probably than not, . . . affected the verdict of guilt.”); Montgomery, 350

S.W.3d at 582, 587 (concluding that admission of the victim’s testimony about uncharged

sexual acts with the defendant outside of those alleged in the indictment prejudiced the

defendant sufficiently enough to warrant a new trial); State v. Woodcock, 922 S.W.2d 904,

912 (Tenn. Crim. App. 1995) (concluding that when “the State referred to the evidence of

uncharged misconduct so ostentatiously and so frequently that it overwhelmed the victim’s

succinct and matter-of-fact testimony” regarding the charged instances of sexual abuse, “the

admission of evidence of uncharged sexual misconduct unrelated to any of the counts in the

indictment was highly prejudicial and more probably than not did affect the judgment in this

case.”); State v. Jeff Carter, No. M2009-02399-CCA-R3-CD, 2010 WL 5343212, at *15

(Tenn. Crim. App. Dec. 16, 2010) (concluding that when no physical evidence or witnesses

other than the victim corroborated the allegations of abuse, doctors found no physical

indications of sexual abuse, the victim recanted her allegations four days after making them,

and the allegations did not reemerge until nine years later, admission of evidence of the

defendant’s prior bad acts and unindicted charges was not harmless error). In this case, the

primary evidence of the defendant’s abuse was the testimony of the victims. We conclude

that the introduction of the defendant’s uncharged rapes more probably than not affected the

jury’s assessment of the evidence to the defendant’s prejudice. The fact that the defendant

12
was never charged or punished for his crimes against L. adds to the prejudicial value of the

evidence and “more probably than not, made it easier for the jury to disbelieve” the defendant

and “freed the jury to conclude more comfortably” that the defendant committed aggravated

sexual battery against the victims. Rodriguez, 254 S.W.3d at 377. Additionally, as we will

explain below, the prosecutor’s closing argument further compounded the harm of admitting

the evidence. Accordingly, we conclude that the admission of the evidence of the uncharged

rape was not harmless, as it more likely than not affected the verdict of the trial. We

therefore must reverse the defendant’s convictions for aggravated sexual battery and remand

the case for a new trial.

IV. Election of Offenses

The defendant argues that the trial court committed plain error when it failed to

require the State to make an election of offenses and failed to instruct the jury on the issue

of election. Specifically, he claims that the State was required to make an election of

offenses in regards to A.R. because she testified about three incidents of sexual misconduct,

and a failure to make an election prevented the jury from reaching a unanimous verdict. The

State responds that no election was necessary because the evidence did not show evidence

of multiple offenses against A.R. and that if an election was required, the State made an

effective election in its closing argument.

The doctrine of election requires the State to elect a set of facts when it charges a

defendant with one offense, but there is evidence of multiple offenses. State v. Brown, 992

S.W.2d 389, 391 (Tenn. 1999). This doctrine is applied to ensure that the defendant can

prepare for the specific charge, to protect the defendant from double jeopardy, and to allow

an appellate court to review the legal sufficiency of the evidence. Id. Most importantly,

election ensures that some jurors do not convict the defendant of one offense and other jurors

of another. State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). It is the duty of the trial

court to require the State to make an election of offenses at the close of its case-in-chief

regardless of whether the defendant requested the instruction. State v. Kendrick, 38 S.W.3d

566, 569 (Tenn. 2001); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). Thus, we may

review the issue for plain error even though the defendant did not request that the State make

an election of offenses or raise the issue in his motion for new trial. See State v. Hodge, 989

S.W.2d 717, 720 (Tenn. Crim. App. 1998).

When the victim of a crime is a young child who may not be able to recall the specific

date when the abuse occurred, evidence of other sex crimes committed by the defendant may

be admissible when the crimes occurred during the time period indicated by the indictment.

Rickman, 876 S.W.2d at 828; see State v. McCary, 119 S.W.3d 226, 244 (Tenn. Crim. App.

2003). However, at the close of its proof, the State must then elect the particular incident for

13
which it is seeking a conviction. Rickman, 876 S.W.2d at 829; McCary, 119 S.W.3d at 244.

The State may effectively make this election through closing argument. See State v. Warren

Curnutt, No. M2006-00552-CCA-R3-CD, 2007 WL 1482390, at *6 (Tenn. Crim. App. May

22, 2007), perm. app. denied (Tenn. Sept. 17, 2007); see also State v. William Darryn Busby,

No. M2004-00925-CCA-R3-CD, 2005 WL 711904, at *6 (Tenn. Crim. App. Mar. 29, 2005)

(citing State v. James Arthur Kimbrell, No. M2000-02925-CCA-R3-CD, 2003 WL1877094,

at *23 (Tenn. Crim. App. Apr. 15, 2003); State v. Michael J. McCann, No. M2000-2990-

CCA-R3-CD, 2001 WL 1246383, at *5 (Tenn. Crim. App. Oct. 17, 2001); State v. William

Dearry, No. 03C01-9612-CC-00462, 1998 WL 47946, at *13 (Tenn. Crim. App. Feb. 6,

1998)).

Here, A.R. testified as to three separate incidents involving the defendant, although

only one of the incidents constituted proof of a completed aggravated sexual battery because

only one incident resulted in the intentional touching of the defendant’s or of the victim’s

intimate parts. In the first incident, the defendant pulled down A.R.’s shirt and kissed her

breasts. In the second incident, the defendant grabbed A.R.’s hand and pulled it toward his

groin area, but A.R. never came into contact with the area. In the third incident, the

defendant exposed himself to A.R., but no physical touching of an intimate area occurred.

Because the evidence only established only one instance in which the jury could have found

the defendant guilty of aggravated sexual battery, the risk of the jury returning a “patchwork

verdict” was eliminated, and we conclude that the defendant received a unanimous verdict.

Even if the State were required to make an election of offenses, we conclude that the

State made an appropriate election during its closing argument. During closing arguments,

the State referred only to the defendant’s kissing of A.R.’s breast as the incident of unlawful

sexual contact. Although the State mentioned that “Papaw’s not supposed to be creeping

around his own house every time you turn a corner, pulling down his pants and saying, ‘What

do you think of that?[,]’” which is arguably a reference to the third incident that A.R.

described, the State repeatedly emphasized that the defendant committed unlawful sexual

contact against A.R. when he kissed her breast. Therefore, the State sufficiently indicated

to the jury which incident the State elected as aggravated sexual battery. The defendant is

not entitled to relief as to this issue.

V. Closing Argument

The defendant raises the issue of prosecutorial misconduct and asks this court to

address the issue under plain error review. As the State correctly points out, the defendant

did not make any contemporaneous objections during the State’s closing arguments, and he

did not raise this issue in his motion for new trial. Normally, the failure to lodge a

contemporaneous objection at trial results in a waiver on appeal of the issue of prosecutorial

14
misconduct. See Tenn. R. App. P. 36(a); see also State v. Thornton, 10 S.W.3d 229, 234

(Tenn. Crim. App. 1999). However, an error which has affected the substantial right of a

defendant may be noticed at any time in the discretion of the appellate court where necessary

to do substantial justice. State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). “Plain error,”

or “fundamental error,” is recognized under Tennessee Rule of Appellate Procedure 36(b).

Some errors are so fundamental and pervasive that they require reversal without regard to the

facts or circumstances of the particular case. Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986).

In order to determine whether an error rose to the level of “plain error,” this court

must consider five factors: “‘(a) the record must clearly establish what occurred in the trial

court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right

of the accused must have been adversely affected; (d) the accused did not waive the issue for

tactical reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). Complete consideration of all five factors is unnecessary

if at least one is absent. Id. at 283. Furthermore, the plain error must be such that it probably

changed the outcome of the trial. Adkisson, 899 S.W.2d at 642.

Closing argument is a valuable tool for both parties during trial, and wide latitude is

given to counsel in presenting these arguments to the jury. State v. Goltz, 111 S.W.3d 1, 5

(Tenn. Crim. App. 2003). Consequently, a trial court is accorded wide discretion in its

control of closing arguments. State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995).

This court will not interfere with that discretion unless there is evidence it was abused. Smith

v. State, 527 S.W.2d 737, 739 (Tenn. 1975). However, closing arguments “must be

temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and

not otherwise improper under the facts or law.” Goltz, 111 S.W.3d at 5. In order to

determine if closing remarks were improper, this court generally recognizes five areas of

prosecutorial misconduct:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the

evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the prosecutor to express his personal belief

or opinion as to the truth or falsity of any testimony or evidence of guilt of the

defendant.

3. The prosecutor should not use arguments calculated to inflame the passions

or prejudices of the jury.

15
4. The prosecutor should refrain from argument which would divert the jury

from its duty to decide the case on the evidence, by injecting issues broader

than the guilt or innocence of the accused under the controlling law or by

making predictions of the consequences of the jury’s verdict.

5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue

facts outside the record unless the facts are matters of common public

knowledge.

Id. at 6 (citations omitted).

This court should not lightly overturn a criminal conviction based solely upon a

prosecutor’s closing arguments. See State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008).

Closing arguments should provide a basis for reversal only when “it is so inflammatory or

improper that it affected the outcome of the trial to the defendant’s prejudice.” Id. In order

to measure the prejudicial impact of any misconduct, this court should consider: (1) the

conduct in light of the facts and circumstances of the case; (2) any curative measures

undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the

cumulative effect of the improper conduct and any other errors in the record; and (5) the

relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim.

App. 1976). To show error, a defendant must demonstrate that the argument was so

inflammatory or the conduct so improper that it affected the verdict to the defendant’s

detriment. Id.

The defendant first takes issue with the prosecutor’s statement that the defendant

testified, “I guess I had sexual contact with her,” and the statement that the defendant

“admitted to unlawfulsexual contact.” He arguesthat the prejudicial effect was compounded

by the trial court’s instruction to the jury that “[e]vidence has been introduced in this trial of

a statement or statements by the Defendant made outside the trial, to show a confession or

an admission against interest.” In the defendant’s statement to Lieutenant Ray, he said that

he touched A.C.R.’s hand to his belt buckle and admitted that he may have inadvertently

touched both victims while picking them up. While the prosecutor’s paraphrase of the

defendant’s admission was not exact, the defendant’s statement that he may have “touched”

the victims while picking them up could fairly be construed as an admission of having sexual

contact with the victims. Further, the trial court admonished the jury that the statements of

counsel during closing arguments were not to be considered as evidence and that the jury

should disregard any statement that they believed was not supported by the evidence. It is

presumed that the jury follows the instructions of the trial court. See State v. Smith, 893

S.W.2d 908, 914 (Tenn. 1994). We conclude that the prosecutor’s statement, even if it was

in error, did not prejudice the defendant to the degree that it affected the outcome of the trial.

16
Accordingly, the defendant cannot demonstrate that a substantial right was adversely affected

or that consideration of the issue is necessary to do substantial justice, and he is not entitled

to relief.

The defendant next contends that the prosecutor expressed her personal opinion as to

the guilt of the defendant and attempted to inflame the passions of the jury with the following

statements:

Because [the defendant] was testing the waters. That is what I submit

to you. [The defendant] was going to see if [the victim] was going to say

anything. That is what I think happened that day. [The defendant] was seeing

if [A.C.R.] was the one that would tell somebody, if she was going to accept

it, if he was going to be able to escalate it to the next step. That is what I

submit to you we are seeing with [A.R.] and [A.C.R.]. [The defendant] was

preparing them. He was setting it up. And [A.C.R.] and [A.R.] talked on the

upswing.

. . . .

Ladies and gentlem[e]n, a perpetrator who comesin and says, “Thissixyear-old was bragging,” should be a red flag to everyone, period, end of story.

A prosecutor should not inject his or her personal opinions or beliefs into closing arguments,

but the determination of whether doing so constitutes misconduct is often a question of the

specific terminology of the prosecutor. State v. Gann, 251 S.W.3d 446, 460 (Tenn. Crim.

App. 2007). A prosecutor’s use of the phrases “I think,” or “I submit” does not always

indicate a prosecutor’s personal opinion. Id. After reviewing the prosecutor’s argument, it

is our conclusion that the prosecutor was not attempting to convey her personal beliefs to the

jury but instead to illustrate the theory of the State’s case and to address the defendant’s

intent and motive.

There also was no impropriety in the prosecutor’s referring to the defendant as a

“perpetrator.” The defendant was on trial because the State believed that he perpetrated the

abuse of the victims; the prosecutor used the word “perpetrator” in the same context that one

would use the word “defendant.” The statement did not constitute the improper use of an

epithet to characterize the defendant or derogatory name-calling. See State v. Cauthern, 967

S.W.2d 726, 737 (Tenn. 1998) (stating that the use of the term “the evil one” to describe the

defendant was improper); State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD,

2002 WL 1400059, at *129 (Tenn. Crim. App. Oct. 11, 2002) (calling the defendant “a

human predator” was derogatory and improper but did not affect the verdict), perm. app.

17
denied (Tenn. Feb. 18, 2003). The defendant cannot demonstrate that a clear and

unequivocal rule of law was breached and is not entitled to relief.

The defendant’s next claim of misconduct is that the prosecutor alluded to the

consequence of the jury’s verdict in rebuttal closing argument by asking the jury if they

would “just turn [the defendant] loose” if they credited his testimony. The prosecutor told

the jury:

You’re here because of something you said, a response that you had,

information that you gave that led us to believe that you were the best possible

group we could get to hear this case. And [the defendant has] had a fair trial.

Witnesses were called, he has a great attorney, those witnesses were

questioned, he was allowed to put on proof, he chose to take the stand and told

you his side.

What do you think about [the defendant’s] side? What do you think

about the story, the explanation he gave for what happened? Do you believe

it? Did you believe him? Because if you did, you know what you’re supposed

to do, right? Will you just turn him loose?”

The argument begins with a reference to the jury’s duty to acquit the defendant if the

members chose to credit his testimony. The prosecutor’s last question, however, urges the

members of the jury to consider that they would be releasing a sex offender back into society

if they returned a verdict of not guilty. It is improper for a prosecutor to make a prediction

as to the consequence of a jury’s verdict. See Goltz, 111 S.W.3d at 6. However, this was an

isolated statement made in the context of properly urging the jury to exercise its role as the

arbiter of credibility, and we conclude that the prosecutor’s remark was not so inflammatory

as to affect the verdict to the defendant’s detriment.

The defendant’s final issue concerns a second portion of the prosecutor’s rebuttal

closing argument. In the relevant portion of the rebuttal closing argument, the prosecutor

stated:

These little girls, with your verdict, you can never erase for them that

summer, that year that [the defendant] decided that he would gratify himself

at their expense. You -- you can’t take that away. They had a six- and an

eight-year-old’s understanding of it then. Now, a couple of years later, they

have a different understanding. And when they’re grown, they’ll have a

different understanding. They’ll get it fully. But you can’t erase that. But

what you can do with your verdict is send all involved away, knowing that

18
justice has prevailed.

[L.] didn’t get it for whatever reason in ‘79 and ‘80, whether it was

because of her disability, whether it was because she didn’t have a protective

3

mother, whether it was because they took her away and put her in a group

home, she didn’t get it. She’s not lying. She told the truth then, and she told

you what happened. Use that if you need to to determine what his intention,

4

what his plan, what his motive, what his purpose was years later when, once

again, he put himself in a situation where he was with a woman, with the

younger children, built a relationship, trusted to be alone with that child, and

he abused the trust on every single level. So you can’t fix it, you can’t erase

it, you can’t -- can’t take away that experience, but with your verdict, you can

tell him that you won’t tolerate it. Not now, not in 2013.

The prosecutor’s closing argument was, in essence, urging the jury to punish the defendant

for a crime for which he was not on trial. Such an argument is improper even if based upon

admissible evidence, but the argument further compounded the error of admitting L.’s

testimony. Moreover, the prosecutor’s comments that L. was “not lying” and that she “told

the truth [at the time of the allegations]” constituted improper vouching for the truthfulness

of a witness.

Although the prosecutor stated that the jury should use L.’s testimony to determine

the defendant’s intent, plan, motive, and purpose, the argument was premised on testimony

that should not have been presented to the jury. Because the defendant did not

contemporaneously object, no curative measures were taken by the trial court. It appears that

the intent of the prosecutor was to inflame the passions and prejudices of the jury, as the

argument implied that a guilty verdict could also provide L. with justice that she never

received. The cumulative effect of the remarks and the erroneous admission of L.’s

testimony were serious. The prosecutor was able to base argument off of inadmissible and

highly prejudicial evidence, which may have caused the jury to decide the case on grounds

other than admissible evidence of the defendant’s guilt. We must next determine whether

this argument rises to the level of plain error.

At trial, L. testified that she received Social Security Income because she had a learning disability 3

that affected her ability to “count change.”

We note that separate prosecutors delivered the closing and rebuttal closing arguments. In the 4

State’s closing argument, the first prosecutor informed the jury that L.’stestimony was to be used by the jury

“solely to make a determination of whether or not [the defendant] intentionally, knowingly, or recklessly

acted with [the victims].” 

19
Examining the Adkisson factors, we conclude that the prosecutor’s argument does

constitute plain error. The defendant included a transcript of the trial proceedings and

closing arguments in the record on appeal, clearly establishing what occurred in the trial

court. The prosecutor’s argument was improper, breaching a clear and unequivocal rule of

law. The argument, along with the admission of L.’s testimony, adversely affected the

defendant’s right to a fair trial. Although the defendant did not make a contemporaneous

objection, he did object at the 404(b) hearing to L.’s testimony. Because the defendant had

already sought, and failed, to obtain a ruling excluding references to the crimes against L.,

it appears that the defendant did not waive this issue for tactical reasons. Finally,

consideration of the issue is necessary to do substantial justice. Because L.’s testimony was

erroneously admitted and directly led to the prosecutor’s improper argument, we conclude

that the cumulative effect of these errors more likely than not affected the verdict and

necessitatesreversal of the defendant’s convictions. Accordingly, the case must be remanded

for a new trial on both counts.

VI. Sentencing

The defendant argues that the trial court imposed an excessive sentence and erred in

imposing consecutive sentences. The defendant contends that the trial court misapplied

enhancement factor (1) because he did not receive an adequate opportunity to investigate L.’s

claims of sexual abuse, and the State did not provide any records to support L.’s allegations

of sexual abuse; the court misapplied enhancement factor (14) because it was not established

that the defendant was in a position of private trust; and the court failed to apply the

mitigating factor that his conduct did not cause or threaten serious bodily injury. The

defendant also claims that the trial court erred in imposing consecutive sentences because the

sentences were not the least severe measure necessary to achieve the purposes of sentencing.

This court reviews challenges to the length of a sentence under an abuse of discretion

standard, “granting a presumption of reasonableness to within-range sentences that reflect

a proper application of the purposes and principles of our Sentencing Act.” State v. Bise, 380

S.W.3d 682, 707 (Tenn. 2012). The court will uphold the sentence “so long as it is within

the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Id. at 709-10. The

misapplication of an enhancement or mitigating factor by the trial court “does not invalidate

the sentence imposed unless the trial court wholly departed from the 1989 Act, as amended

in 2005.” Bise, 380 S.W.3d at 706. A sentence imposed by the trial court that is within the

appropriate range should be upheld “[s]o long as there are other reasons consistent with the

purposes and principles of sentencing as provided by statute.” Id.

After the trial court establishes the appropriate range of the sentence, the court must

20
consider the following factors to determine the specific length of the sentence: (1) the

evidence, if any, received at trial and at 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 applicable enhancement and mitigating factors; (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 wishes to make in his own

behalf about sentencing. T.C.A. § 40-35-210(a), (b)(1)-(7).

The trial court found that the defendant was a standard, Range I offender. The

court applied enhancement factor one, finding that L.’stestimony proved by a preponderance

of the evidence that the defendant had a history of prior criminal behavior. The trial court

also found that enhancement factor fourteen applied because the defendant abused a position

of private trust to commit the offenses. The court did not find that any mitigating factors

applied, but the court noted that the defendant had never been arrested before, had a

consistent work history, and served his country honorably in the Marine Corps. The court

considered the victim impact statements of A.R. and A.C.R., where both victims stated that

the incidents affected their performance in school and made them feel afraid. The court also

found that the defendant refused to accept responsibility for his actions but instead continued

to claim that all of the witnesses against him were untruthful. After considering the

appropriate statutory factors, the court sentenced the defendant to the maximum sentence of

twelve years for each conviction.

The record supports the findings of the trial court. The trial court found by a

preponderance of the evidence that the defendant sexually abused L., and it appropriately

applied the enhancement factor. The record also shows that the defendant was the victims’

step-grandfather, the victims frequently spent time at the defendant’s residence, and the

defendant was entrusted to care for the victims. The trial court appropriately applied

enhancement factor (14). Even if the trial court erred in declining to find any mitigating

factors, “the misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in

2005.” Bise, 380 S.W.3d at 706. Here, the sentence was within range and comported with

the principles of the Sentencing Act. The defendant is not entitled to any relief.

The defendant also takes issue with the imposition of consecutive sentences,

contending that the trial court erroneously classified him as a dangerous offender and that

consecutive sentences were not the least severe measures necessary to achieve the purposes

of sentencing. The State concedes that the trial court erred in classifying the defendant as

a dangerous offender but argues that other statutory factors were met that justified

consecutive sentencing.

21
A trial court has the ability to impose consecutive sentences if it finds by a

preponderance of the evidence that the defendant falls into one of seven categories, including

that “[t]he defendant is convicted of two (2) or more statutory offenses involving sexual

abuse of a minor with consideration of the aggravating circumstances arising from the

relationship between the defendant and victim or victims, the time span of defendant’s

undetected sexual activity, the nature and scope of the sexual acts and the extent of the

residual, physical and mental damage to the victim or victims.” T.C.A. § 40-35-115(b)(5).

The court may also impose consecutive sentences if it finds that “[t]he defendant is a

dangerous offender whose behavior indicates little or no regard for human life and no

hesitation about committing a crime where the risk to human life is high.” Id. § 40-35-

115(b)(4). When a trial court orders consecutive sentencing, the overall sentence “should

be no greater than that deserved for the offense committed” and “should be the least severe

measure necessary to achieve the purpose for which the sentence is imposed.” Id. § 40-35-

103(2), (4). A trial court’s decision to impose consecutive sentencing is also reviewed under

an abuse of discretion standard with a presumption of reasonableness. State v. Pollard, 432

S.W.3d 851, 860 (Tenn. 2013). So long as the “trial court properly articulates reasons for

ordering consecutive sentences, thereby providing a basis for meaningful appellate review,

the sentences will be presumed reasonable, and absent an abuse of discretion, upheld on

appeal.” Id. at 862.

The court found that the defendant was convicted of two or more statutory offenses

involving the sexual abuse of a minor and that the defendant was a dangerous offender whose

behavior indicated little or no regard for human life and who had no hesitation about

committing a crime in which the risk to human life was high. The court found that the length

of the sentence was reasonably related to the severity of the defendant’s offenses and that

confinement was necessary to protect the public from further criminal acts by the defendant.

In finding that the defendant was a dangerous offender, the court noted that the defendant

committed offenses against both victims when no one was present. The court observed that,

even though no penetration occurred, the defendant still committed a dangerous crime and

was a dangerous offender. The court stated that the defendant engaged in “deviant sexual

behavior, touching two young women -- two young girls and penetrating, raping another

child many, many times over a two-year period of time.” The court found that the defendant

committed separate and distinct crimes against A.R. and A.C.R. and that he should be held

equally responsible for each offense. The court observed that the defendant “probably never

needs to be released from prison” because, if released, he would “continue to prey upon

vulnerable children that cannot protect themselves.” The court noted that the defendant

would be “very old” by the time he was released if the sentences were served consecutively

but found that consecutive sentences were appropriate to ensure that the defendant’s separate

and distinct violations of the law were equally punished.

22
The trial court also considered the victim impact statements of A.R. and A.C.R.

A.C.R.’s victim impact statement indicated that, although she did not suffer any physical

injuries, “sometimes [her] heart hurt[]” and the defendant’s conduct made her sad. She was

afraid to sleep alone when she was with him and was unable to concentrate in school. She

stated that she did not want the defendant to be able to hurt any other children and that she

felt safer when he was in jail. A.R. told the court that the defendant’s actions caused her to

have nightmares for three years. A.R. blamed herself for the abuse, believing that it was her

fault. A.R. struggled in school as well after the abuse, but she said that she was able to

regain her concentration atschool and sleep better after the defendant was incarcerated. Both

victims asked the court to impose the maximum sentence possible so that the defendant could

not harm any more children.

We conclude that the trial court properly imposed consecutive sentences. Even if the

trial court improperly classified the defendant as a dangerous offender, the court engaged in

the required considerations of Tennessee Code Annotated section 40-35-115(b)(5) and found

that the defendant committed two statutory offenses involving the sexual abuse of a minor.

The trial court found that the defendant committed the offenses when he was alone with the

victims and that he used his role as a step-grandparent to perpetrate the abuse. The record

reflects that the abuse went undetected until September of 2010. Both victims testified that

the defendant told them not to tell anyone about the abuse, and both victims believed that

they would get in trouble if they spoke of the abuse. The court considered the nature and

scope of the abuse, noting that, although the defendant never penetrated the victims, his

conduct still constituted “deviant sexual behavior.” The court further considered the victim

impact statements of A.R. and A.C.R., observing that A.R. had nightmares for three years

and that both victims struggled to concentrate in school after the abuse. The record supports

the trial court’s imposition of consecutive sentences.

We also conclude that consecutive sentences were the least severe measure necessary

to achieve the purpose of sentencing. The defendant contends that his lack of prior

convictions,steady employment history, honorable military service, and age makes a twentyfour year sentence greater than deserved for his offenses. The trial court, as it had the

discretion to do, afforded little weight to these mitigating factors. The court also explicitly

rejected the defendant’s age as a factor weighing against consecutive sentencing, stating that

“it is not an argument that this court will ever accept that a person is of age, he is a little bit

old and it is not in anybody’s best interest to make him serve a sentence that might cause

[him] never to be released from prison.” The trial court found that, based upon the

defendant’s conduct toward the victims and L., he would likely continue to “prey upon

vulnerable children” if he was released from confinement. The court also found that the

defendant committed offenses against both victims and that consecutive sentencing was

appropriate to ensure that the defendant was punished for both offenses. “The power of a

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trial judge to impose consecutive sentences ensures that defendants committing separate and

distinct violations of the law receive separate and distinct punishments” and prevents a

defendant from otherwise escaping “the full impact of punishment for one of their offenses.”

State v. Robinson, 930 S.W.2d 78, 85 (Tenn. Crim. App. 1995). Accordingly, the trial court

appropriately sentenced the defendant, and he is not entitled to relief as to this issue.

VII. Cumulative Error

The defendant arguesthat the cumulative effect of the trial court’s errors deprived him

of his right to due process. However, as we concluded above, the admission of L.’s

testimony and the prosecutor’simproper closing argument require reversal of the defendant’s

convictions.

CONCLUSION

For the foregoing reasons, we conclude that the trial court erred in admitting evidence

of the defendant’s uncharged sex crimes and that the effect of this error rendered the State’s

closing argument improper. Accordingly, we reverse the defendant’s convictions for

aggravated sexual battery and remand the case for a new trial.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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