1 It i s the policy of th is cour t to n ot reveal the names of minor vict ims of sexual abuse. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE August 14, 2002 Session
STATE OF TENNESSEE v. WALTER CLYDE RAINEY, J R.
Direct Appeal from the Circuit Court for Wayne County Nos. 12297-12307 Robert L. Jones, Judge

No. M2001-01870-CCA-R3-CD - F iled June 6, 2003

The appellant, Walter

Clyde Rainey , Jr., was convicted by a jury in the Way

ne County Circuit Court of seven co unts of se xual batter

y by an author ity figure and seve n counts of statutory rape . The trial court sentenced the appellant to a total effective sentence of four yea rs incarceration in the Tennessee Department

of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evide nce wassufficie

nt to sustain his convictions; (2) whether the trial court erred by consolidating the offe

nses for trial; (3 ) whethe

r the tria l court e rred in it s rulin g rega rding the admissibility

of the testimony of prosec ution witness Tabitha Smith; (4) whether the prosecution’s clos ing a rgumen

t was impr

oper; an d (5) whe

ther the trial cou rt erre d in sente

ncing th e appell ant. Upon review of the record and the pa rties’ briefs, we affirm the judgments of the tr ial court.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Ci rcuit Court are A ffirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.
Robert D. Massey, Pulaski, Tenne ssee, for the appellant, Walter Cly de Rainey, Jr.

Paul G. Summers, Attorney Gene ral and Repor

ter; David H. Find

ley , Assistan

t Attorne y General ; Mike Bottoms, District Attorney Gene ral; and Joel Douglas Dicus and Rober t C. Sander s, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION

I. Fact ual Backgro

und In January

2000, the

appella nt was the

principa l and gir l’s baske tball coa ch at th e Frank Hughes School

in Cl ift on. In connection with these roles, the appellant became ac quainted withthe victim , LNW, a student

. 1 The victim met the a ppellant when she was in the

seventh grade at the schoo l and he w as her ba sketball c oach. Sub sequentl y, w hen she w as in the te

nth grade, the-2-

two developed a relationship that extended bey ond t he normal student-teacher relationship. As a result of his involvement with the victim, the appellant was indicted in the Way

ne County

Circuit Courton eleven counts of sexual battery by an authority

figureand eleven counts of statutory rape.

At trial, the victim wa s the prima ry witness a gainst the appellant. The victim testified that at the time of the offenses she worked as an off ice aid at the Frank Hughes School. She wa s fifteen years old a

t the time of the offen ses. She maintained that, initially, she approac hed the appella nt. She testified that the first sexual incident between them occurred on January 16, 2000, when th e appell ant in vited the victim to hi s house. T

he appellant kne w that the victim’s p arents
were out of town that day. While they were in the dining room, the appellant kissed the victim and then they went into the

appellant’s bedroom. In the bedroom, they kissed ag ain. The victim testified that she “told [the appellant] that my chest was par tof my body

as well a nd he beg [a]n to touch

my breast.” The victi m als o as ked if t he a ppe ll ant wou ld li ke t o t ouc h an y oth er p art of h er b ody. In response, the appellant unzipped the victim’s pants and performed oral sex on her.

Next, the victim

maintaine d that on Jan

uary 28, 2000, s he went to

the school g ym, knowing the appellant

would be there. They

went into the appellant’s office and bega n kissing. The victim testified that “I believe

he started to finger me,” explaining that the appellant placed his finger inside her vagina. They

ended up in the “special ed room” because there were no security

cameras in that room. They

kissed again and the appellant digitally penetrated the victim and touched her breast. Additionally, she touche d the appellant’s penis.

On February

6, 2000, the

victim asserted that she went to the school gy m to practice basketba ll. She fa bricat ed an ex cuse t o go to the school weight room where she met the

appella nt. They kissed and the appellant digitally penetrated t

he vic tim and performed oral sex on her. The victim also touched the appellant’s penis.

The victim further related that on Februar y 8, 2000, during half-time of the Clifton boy s’ basketball game, she and the appe llant wen t to the appellant’s office and the appellant touched her breast and digitally

penetrated her.

The victim stated that on February 10, 2000, the appellant

drove her from the school to his home. They went

into his bedroom and kissed. She testified that the appellant “put m y legs
over my head and

he said, ‘ Some day

I will have y ou like this .’ Somethi ng alon g the lines of the first time we have sex, I’ll be

real gentle and I ’ll show you my animal side.” The appellant then drove the victim back to the school. The next day, dur ing a telephone conversation, the appellant told the victim that someone had seen her at the appellant’s house a nd called the board of

education. When the school superi nt endent, Jerry Pigg , questioned the appellant regarding the report, the appellant told him that he

had drive n the vict im home to

pick up a shirt for a basketball game and they stopped by the appellant’s house

so he could pick up a jacket.

On February

13, 2000, the victim’s mother asked h er if sh e had ever been to the appellant’s house. Th

e victim told her mother the same version of events th at the ap

pellant h ad told-3-

Pigg. Afterw ards, the

victim informed the appe llant that her mothe

r had bee n asking questions , but the victim had related the appellant’s version of the events. The appellant responde d, “Good.” The following day , the vict

im’s mothe

r and ste pfather went to the

appella nt’s offi ce to speak with him. After they left, the victim we

nt into the a

ppellant ’s offic e, alone , and ask ed why her par ents had been there.

The victim sta ted that her mothe

r refus ed to allo w her to

attend school February

17, 2000, through February

20, 2000. Acc ordingl

y, t he victim did not see the appellant during that time. The victim telephoned the appellant on February 21, 2000. The next day, the victim saw the appe llant at school and he gave her a letter . After school, they went into the computer lab. The appellant attempte d to kiss the victim, but she reminded him that the computer lab was monitored by security camera s. The ap

pellant w ent into hisoffice, removed the video tape, returne d to the lab, and kisse d the vict

im.

On February

26, 2000, the appellant was planning to go out of town to “let things cool off.” He met with the victim at school and wrote his tel ephone calling card number on a piece of paper so she could call him. Concerned that thevictim might drop the paper, the appellant wrote the number backwards to conceal the information. While in a classroom at the school, they kissed, the appellant again digitally

penetrated the victim, and she touched the appellant’s penis.

The next sexual incident occurred early in the morning of

March 4, 2000. On March 3, 2000, the

victim wa s caring

for two children in

their home

in Cl ifton. The victim called the appellant and told him that she w as cold. The appel lant came to the children’s home where the victim was staying

overnight and he

brought her pajamas. L ater that night, the appella nt tried to call the victim. She returned the call around midnight. The appellant asked if he could come to t

h e house. The victim discouraged the appellant; however, he was insistent and around 4:00 a.m. or 5:00 a.m., the appe

llant drov e to the home and parked his car outside the house. The victim got into the appellant’s car. They kissed and the a ppellant digitally pene

trated the victim, touched her breast, and performed

oral sex on her. Additionally, the victim related tha t she did not recall the a

ppellan t ejacula ting dur ing any of their s exual cont

act.

Later the same morning, the vic tim returned home and asked her stepfather f or permission to go to the school gy m. She arranged for Jessica McI ntosh to meet her there . Th e victim also called the appellant and told him that she was going to the school gy m. The appellant agreed to meet her there. Whenthere, they kissed a nd touched and then went into the coaches’ office to avoid being seen by

McIntosh. The appellant told the victim that he loved her. He ki s sed her breast and performed oral sex on her. During this encounter Jessica McIntosh began be ating on the door of the gy m. The victim went to meet McIntosh who asked if the a ppellant was at

the schoo l. The victim stated that he had been there earlier a nd suggested they

look for him. While McI ntosh
was searching elsewhe

re, the victim

returned to the coaches’ office and warned the appellant that he should leave. The appella

nt informe d the vict

im that he w ould

go to his o ffice. The victim then told McIntosh that she had found the appe llant in his office.-4- The victim tes tified tha

t later in the evening of March 4, 2000, she returned to the school gym with her sister and McIntosh to play basketball. The appellant came back to the school and went i nto the counselor’s office with the victim. I n the counselor’s office, the appellant perfor med oral sex on the vi ctim. She ma intained that after he got finished then he told me to sit between his legs and I did and he said, “Now, don’t . . . do any thing you don’t want to do,” and I told him, “I

didn’t do a

nyt hing I didn’t wa

nt to do.” He t

oldme, he said to lick the tip of

my f inger a nd to put it o n the hea

d of his pe

nis. Well, I did i t and I thought this is just going to take forever. He i s just going to wal k me th rough this whole thing so I just put it in

my mouth and p erformed oral se x on him. The appellant instructed her to stop before he ejac ulated.

The victim also asserted that she and the appellant performed oral sex on each other in a room be si de th e s ch oo l o ff

ic e o n M ar ch 5, 20 00 . A dd it io na ll y, she contended that she saw the appellant in the school gy m on the night of March 6, 2000, and she performed or al sex on him.
Next, the victim

recalled that on March 15 , 2000, she left on a

school tr

ip to Washington D.C. The day be fore her trip, she told the appellant that she wanted to see him before she left. On the afternoon of March 14, 2000, the victim and the appellant met in an e quipment room at the school and she performed oral sex on the a

ppellant . The vic tim

asserted that she talked to the appellant on the telephone regularly while she was on her three-day trip. The victim testified that she paid for

the long -distanc e calls by using the appellant’s calling card number whic h he had previously g iven her. At approximately 1:00 a.m. on Mar ch 18, 2000, the day the

victim returned from her trip, she arranged to meet the a ppellant at

a factory located behind he

r house. O n this occasion, they only

kissed.

On the ni gh t of March 18, 2000, the victim arrang ed to go

to the sch ool gy

m with McIntosh. The victim informed the appellant of her plans. The victim and the appellant kissed in a
corner near steps located outside the gy m. The victim returned to the gy m and talked with McIntosh. McIn toshbegan acting strang ely around the victim, and McIntosh’s father soon ca me to the school to drive her home. The victim went to the appellant’s office and started to perform oral sex on the appellant. He stopped her, say ing, “[W]e

don’t need to do this in here.” The appellant proceeded to informher that “I have got something in mind that is like mutual pleasure.” They went into the counselor’s office and

began to perfo rm oral se x on one ano ther in wh at “is co mmonly known as the sixty-nine position.”

On March 22 or 23, 2000, Agent Vance Jack with the Te nnessee Bureau of Investigation

(TBI ) talked withthe victim

. Originally she denied the events, explaining later that the appellant “made me

feel g ood about

mys elf and I looked upon him as a father figure and I

was trying to pr ot ec t h im be ca us e I d id n’ t w an t h im to ge t i n t ro ub le , yo u know .” However, the victim soon confessed to a sexual relat ionship with the appellant. Agent Jack asked the victim to write a statement detailing her involvement with the appellant. She complied.-5- At trial, the victim maintained that the a ppellant “manipul ated me in

to doing things,” butshe conceded that the appellant did not threaten her. She

explained , “I

t was har d to tell [him]
no. I trusted [him] and I looked at him as a father figure and, y ou know, I had

feelings for [him].” Additionally, she stated that the appe llant told her that he looked at her as a daughter

. The victim revealed that sometime after she made he r statement to Agent Jack, the appellant wrote her a letter and contacted her about delivering a le tter to her. Subsequently, the appellant drove past the victim’s house, dropped the letter in the street, and drove aw ay . The vic tim went into the street to retrieve the letter and, pursuant to the appellant’s instructions, burne d the letter after reading it.

Th e vict im also testified that on two occasions she recorded her telephone conversations withthe appellant. The audio tapes of those recorded conversations were pla yed for the jury. During

one conversation, the victim asked the appellant what he had told investigators

. After askin g t he victim if she was alone, the appellant and the victim discussed the conversa tions eachhad with the officials. At one point, the victim asked the appellant what he thoug h t would happen if she revealed every thing about their relationship. The appellant res pon ded that if more
were told the situation would only worsen. She also told the appellant that she had inf ormed the “FB I” that

he had “fin gered

her.” T he appellant did not deny

the victim ’s commen

ts, but simpl

y sa id “ah.” The victim also asked the appellant if he intended to “tell them that I ’m lying” a nd further inquired if the appellant was “going to make me out to be crazy.” The appellant responded that he did not know what he was going to tell authorities.

Agent Vance Ja

ck testi fied at trial th at he and Agent Wa

yne Wesson initi ally investigated

the case ag ainst the a

ppellant . Beca

use the vi ctim denie d a sexual r elationsh ip with the appella nt, the investigation was cl osed. Howev er, fol lowi ng a report of the incident witnessed by McIntosh, the investigation was reo pened. A gent Jack stated th at when he interviewed the victim following McIn

tosh’s re port, the victim wa s relu ctant and e mbarrassed, but he overcame such feelings by

building a rapport with her. Agent J ack op ined t hat wr itin g a statement is often easier than ver bally recount ing eve nts, so he asked

the victim

to write a

statemen t about he r relati onship withthe app ell ant . She

ga ve t his sta tem ent to A ge nt Ja

ck on Marc h 23, 2000. Subsequently, the victim submitted a more detailed statement on March 28, 2000. Agent Jack admitted that there was
no physical evidenc e, such as fingerprints or DNA samples, to conf irm the vi ctim’s version of events.

Ad di ti on al ly, Agent Jack testified concerning hi s inv estigation of the appellant’s telephone records. He stated that on February

28, 2000, there were two calls placed to the Holiday Inn in Brentwood which originated from the victim’s residence and utilized the appellant’s calling card number. There was a similar call the f ollowing day . The tota

l length of these three c alls was thirty-three

minutes. On March 7, 2000, there were three calls utilizing the appellant’s calling card number. These c alls were placed from Murfree sboro to the appellant’s residence. The total duration of these three calls was forty -two minutes. There was another such call lasting seventeen minutes-6-

which occurred the next day . Additionally on March 8, there were two calls utilizing the appellant’s calling card number. The

two calls originated from Murfreesboro and w ere placed to the private line of the appellant’s office at the Frank HughesSchool. Th

ese calls lasted a

total of f ifteen minutes. On that same

day , the appe

llant plac ed a one

minute ca

ll to a motel in Murfreesboro. The appellant
was also billed for two c alls, with a total length of four minutes, from the Nashville Airport on Marc h 15 , 2000, to his office at the school. Furthermore, on March 15 a nd 16, 2000, while the victim was on a school trip, there were eight calls placed to the appe llant’s residence from Mary land, utilizing the appellant’s calling card number.

The victim’s younge

r sister, Natalie Crystal Watson, testified that she also attended Fran k Hughes Sch ool. Watson observed that by the end of their relationship, it seemed that the victim and the appellant were together every d ay . Watson sta

ted that sh

e sometime s went to basketba ll games with the victim and the appellant. They w ould take the driver’s education car and often the appellant allowed the victim to drive even though she did not have a driver’s license

. Watson stated that

during one particular trip, she saw the appellant hold the victim’s hand the entire way home. The

appella nt often c alled the

ir home an d s po ke wi th th e v ic ti m. Ad di ti on al ly, Watson remarked that the vi ctim and the appellant made an effort to touch eac h other. Moreover, the ap pellant gave the victim his key s to the school gymna sium so she could practice basketba ll

. Furthermore, Watson re

membere d that on J anuary 16, 2000, w hile Lisa Allen was at Watson’s house, the victim called Watson from the appellant’s house. Watson knew the call originated from the appellant’s house because she saw the appe llant’s number on t he calle r id entifica

tion sy stem. The victim re

turned ho me at app

roximately

10:30 p.m. that night. Watson saw the appellant bring the victim home.

Watson further explained that when she went wi th hersister to t he schoo l gy

m to practice basketba

ll, the victim rarely stay

ed in the gy

m with her. The victi m and the a ppellant would leave the gy

m and go into the weight room or the office.

At trial, Jessica Elaine McIntosh testified that she and the victim we

re goo d friend s. McIntosh confirmed that she saw the appellant and the victim “French kissing for a long time” on March18, 2000. M cIn

tosh expound

ed that “ Frenc h kissing ” means “[ u]sing the tongue.” She further described the kiss as “passionate” and related that the appellant had his arms on the victim’s waist and her arms were

around his neck. McIntosh stated that a fterward, the victim returned to the gym to resume basketball practice. Shortly thereafter, McI

ntosh informed her father

of what she had witnessed and together they went to see their minister.

Jane Martin, a

social stu dies tea

cher at the Fra nk Hughes School, testifie d that t h e position of offic e aid wa s a desir able job. She also r

elate d tha t she was aware that the victim had been allowed t

o drive the driver’s education car. Additionally , Martin stated that she often saw the appellant and the victim alone together.

Gina Watson Grace, the victim’s mother, testified that the victim’s date of birth was July 13, 1984. Grace stated that the appellant was the principa l at the Frank Hughes School, which-7-

school her children attended. Additionally , the appellant coached the victim when she play ed junior high basketba

ll. Subsequently, the appellant beg an coaching the high school girl ’s baske

tball tea m, of which t h e victim w as a memb er. He a lso gave the victim

extra help

to improve

her bask etball skills. Grace also n oted that her caller identification sy stem reflected that the appellant had freque ntl y

telephoned her ho me. While th ese calls had bee

n delete d from the

main sy stem, th e backup sys tem she ke

pt in her b edroom r

eflected the calls. Grace related that the appellant had asked for her permission to purchase the victim a Christmas present and she had g iven her permission.

In Ja nu ar y, Grace became “s uspicious ” of the a ppellant ’s relat

ionship wit

h the vict im. In part, Grace’s suspicions stemmed from chang es in the victim’s behavior. She b e came more rebellious and wanted to spend more time at school or at ball games. She of ten asked permission to ride home with t

he appellant. Gr

ace als o no ti ce d t ha t t he vi ct im an d t he ap pe ll an t w er e a lw ays looking at each

other. Based upon her

suspicions, Grace and her husband went to the Fra nk Hughes School at 10:00 a .m. on Fe bruary 14, 2000, a

nd confr onted the appell ant. Grace informed the appellant that his re

lationship with the vi ctim

was inap propria te and caused people to think that he
was “sc rewing ” her da

ughter . She instr

ucted the appella nt to not ch

eck the v ictim out o f schoo l without Grace’s permission and also told the appellant that the victim was not to drive the driver’s education car

because she did not possess a driver’s license. Grace also dema nded that the victim’s job as an officeassistant be discontinued and warned the appellant that he was not to spend any time alone with the vi ctim in his o ffice. To emp hasiz e her displeasure with the appellant’s behavior, Grace sent a formal complaint to the Boar d of Education.

Grace maintained that the appellant never denied having a n inappr opriate relationshi p withthe victim . Howeve

r, he did d eny that the victim

had ever been inside his house. The appellant assuredGrace that the victim would not continue to work in the office. Neve r theless, Gra ce maintained that afte

r this mee ting, the victim continued to leave school without Grace’s permission, to drive th

e driver ’s educa

tion car , and to wo

rk in the o ffice a

t school.
Raymond Paul Coggins testified that in February 2000, he andthe appellant attended
an administrator ’s academy in Nashville. They shar ed a room during the trip. While they were there, the appellant

received a

telephone call from a y oung woman. The appellant never identified the calle r, but Cog gins “in

terpre ted” tha t the call was from one of the

appella nt’s daug hters.
Stacey Baker testified that on March 30, 2000, after the appe llant’s suspension because of his relationship with the victim, she witnessed the appellant drop an envelope in the road outside the victim’s house. The victim retrieve d the envelope. Baker conceded that she did not know the contents of the envelope.

Byron Skelton, the Chief

of Police for the City of Clifton, related that he was called t o the victim’s house after Baker repor ted the letter incident. Chief Skelton retrieved the rem ain s of a burned note.2 The indictment spelled the s urname of the appellant “Rai ney ”; els ewhe re i n t he r ecor d, t he f ami ly surname is s pelled “ Raney.”
-8-

GailandGr in de r, an em pl oye e o f t he Wa yne Co un ty Board of Educatio n, testified that in February , the Board was notified that the victim and the appellan t had bee n se en entering the appellant’s house. An investigation ensued. On February 16, 2000, Grinde r talked with the appellant at the sc hool. The

appella nt mentioned that Gra

ce had w arned him to never be alonewith the victim. The appellant informed Grinder that he would no longer be alone with the victim.

Grinder stated that there was a meeting on Marc h 20, 2000, concerning

the appellant’s cond uct. Grind er; Jerry Pigg , the Wayne County Superintendent of Schools; and Joe Treece, a school board member

from Clifton, attended the meeting. Additionally, D avid McIntosh, the father of J essic a McIntosh, came to the mee ting to relate the kissing incident witnessed by his daughter. When Gr in de r a nd Pi gg c on fr on te d t he ap pe ll an t a bo ut th e i nc id en t, he de ni ed an y w rong doin g. Original ly, the appellant claimed that he did not remember being a t the school that day. As the questioning pr og re ss ed , t he ap pe ll an t e ve nt ua ll y c oncede d that he was at the school and saw the victim, but he came no closer to her than three feet. A dd it io na ll y, the appellant initially denied talkin g w ith the vic tim on the te lephone, but later

admitted t

hat she w ould occa sionally call him. The appellant admitted t h at he ga ve the victim a Christ

mas pres ent and a

cknowle dged th at he did notgive presents to any

other students. Grinder testified that the appellant maintained that he did not curtail h

is contact with the victim afte r the orig inal acc usations b ecause

he did not w ant it to appear that he had done any thing wrong.

Ci ndy Davis, a first grade teache r at the Frank Hughes School, testified as the f irs t defense witness. Davis asserted that the victim approached her a ft er the re lationship with the appellant was exposed and told Davis that “what you’ ve heard about me, it’s not true. I don’t care what a lot of people think, but I care what you think ab out me.” D avis conc eded tha t the victi m did not specify to what he

r comment referred.

Heather Warren, another teacher at the Frank Hughes School, sta ted that sh e was als o the victim’s basketball coach and had a good ra pport with her. Warren noted that the victim had sometimes spent the night at her house, she had given the victim rides home, and she had taken her shopp ing. Warren also related that the appellant often had students in his office and she never saw any improper sexual con

tact betw een the a

ppellant and the vi ctim.

The ap pe ll an t’ s d au gh te r, Re be cc a R an ey, 2 testified that she befr iended th e victim. She explained that the appellant was a “father fig ure” to the victim an d she never saw behavior betweenthem that

differed from any

other teacher-student relationship. Furthermore , Raney stated that she was with the appellant for most of the day on February

6, 2000.
Stephanie Kennedy, a

former student at the Frank Hughe s School, a ttested th at while she was working at the Pirate’s Lair Restaurant, the victim approa ched her and declared, “I

f you hear that I have had sex with [the appellant] it is not true.” Kennedy noted that she was not

a partic ularly-9-

close friend of the victim . She also o

bserved that the a ppellant was in jail when the victim made the statemen t.

Tina

Bowling, the Frank Hug hes School secretary , explained that the po sition of office aid was considered an “honor.” The appe llant rec ommended

the victim

for the position and Bowl ing ag reed that she was qualified. Bowling r emarked that she saw no inappropriate conduct betweenthe appe

llant and the victim. She also stated that the victim told her that “what you r ead in the paper is not true.”

The appellant’s oldest daughter, Sara Raney , testified that she was also with the appel lant o n Febru ary 6, 200 0. The y were in Bi rmingh am, Al abama, for a fa mily out ing.

To conclude the defense proof, the appellant testified on his own behalf. He stated that he was f ifty -seven y

ears old . He bec ame acq uainted with the vic tim when he was he r junior high basketball coach

and he also tutored her in basketball. The appellant maintained that the victim needed someone t

o talk with

and she sent him an e-mail message that she wante d to “perc eive” hi m as a father figure. He did not recall if he respon ded to t he messa ge, but stated tha

t he did wa

nt to help the victim.

The appell ant acknowledged that the vi ctim call ed him whe n he atte nded an a cademic seminar in Nashville. He stated that he may have told Coggins that the call was from his daughter. According to the appellant, the victim called to ask about the appellant’s relationship with a former Frank Hughes School student, Tabitha Smith. The appe

llant also admitted t

hat he g ave the v

ictim his calling card number, but contended that he d id so in order for her to telephone her fathe r. He confirmed

that he wrote the calling card number ba ckwards as a security

measure in case she lost the number. The a

ppellant also no ted that he called the victim once from Birmingha m to ask if the weat her had affected a basketball g ame. Additionally, the appe llant admitted that he allowed th e victim to drive the d river’s educa tion car even though she did not have a license to dr ive. Regar dless, he denied

ever having sexual contact with the victim. The appellant explained that on the day McI

ntosh alleged she saw him kiss the victim, he and the victim were discussing the victim’s medical p roblems a nd he put h

is arms around her and

kissed he r on the f orehea d to offe r comfor t.

The appellant observed

that his female students occasionally developed crushes on him. He opined that a rivalry over him developed betwe en the victim and Tabitha Smith. Furthermore, the appellant explained that in the conversations that the victim rec orded, he did not deny sexual con

tact with herbecause he was “in shock.” He wa s warned as part of his bond agreement

that he should not have contact with the victim, but she continued to call and he listened wh ile she talke d. The ap pellant a dmitted tha

t despite t

he warn ing not to contact the victim , h e delivered to her a letter filled with inspirational say ings because she had requested tha t he do so.

He denie d hol ding the victim’s hands while they rode together in the driver’s education car, but admitted that he did “warm” her h ands on o ne occa sion whil e she wa s driv ing. He also denied picking the victim up at her home, tak

ing her to his home , then re

turning her to her-10-

residence on January

16, 2000. H owever , he conc eded tha t h e did driv e past

he r h ou se th at da y. Furthermore, he asser

ted that he heede d Grace ’s warning to limit contact with the victim

. Neverth eless, she “called [him] all the time.” In any event, the appella

nt never asked the victim to stop calling him.

The ap pellant contended that he told Pigg and Grinder diff erent versions of even t s because of a faulty m

e mor y, not because

of a desire to deceive. As to his failure to deny a sexual relationship with the victim on the audio tape, the appellant stated that he rema ined silen t becaus e he did not understand and did not respond because he was listeni ng. Add itionally , he want

ed to obtain legal advice before re sponding. The appellant as sert ed, “I never initiated contact with that girl. . . . She’s the one that made the calls.” On c ross-examination, the State asked the appellant about the victim’s “competition” with Smith for his affections. The a ppell ant stated that he was never involved in a sexual relationship with Smith.

As a rebuttal witness, the State called Tabitha Smith, a recent graduate of the F rank Hughes School. She testified that after her graduation, while she w as eighteen y ears old, she was involved in a s exual rela tionship with the app ellant. F urthermo re, in Fe bruary 2000, the

victim askedSmith about her relationship w i th the appellant. The victim was jealous because of rumors concerning Smith’s involvement with the appellant.

Based upon the foregoing proof, the jury convicted the appellant of seven counts of sexual battery

by a n authority f

igure a nd seven counts of statutory rape

. The trial court sentenced the appellant to a total effective sentence of f our year s incarceration. On appeal, the appellant challenges the suf

fi ciency of

the evidence supporting the convictions, the consolidation of the offenses for trial, the admission of Smith’s testimony, the State’s improper closing ar gument, and the sentences imposed.
II. Analysis

The appellant first challenges the sufficiency of the e vidence to support hi s convictions of sexual battery by a n authority

figure and statu tory rape. I n Tennes see, app ellate c ourts accord consider able weight to the verdict of a jury in a criminal trial. In essence, a jury conviction removes the presumption of the appellant’s innocence and r eplaces it with one of guilt, so that the appellant carries the burd en of demonstrating to this court why the evidence will not support the jury’s findings. State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must estab lish that no “rea so nable tri er of fact” could have found the e ssential elements of the offense bey ond a
reasona ble doubt. Jackson v. V

irginia , 443 U.S. 307, 319, 99 S. Ct. 2781 , 2789 (19 79); Tenn . R. App. P. 13(e).
According ly, on appeal, the State is entitled to the strongest legitimate view of t h e evidence and all reas onable inferences which may be drawn therefrom. State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). In other wor ds, questions concerning the credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raise d by the evidenc e,-11-

are resolved by

the trier of fact, and not the appellate courts. State v. Pr uett , 788 S.W.2d 559, 561 (Tenn. 1990).

Tennessee Code Annotated section 39-13-506(a) (1997) definesstatutory rape as the “sexual penetration of a victim by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) y ears of age and the def

endant is at least four (4) yearsolder than the victim.” Statutory rape is designated a Class E felony

. Id. at (c ). Ad di ti on al ly, Tenness ee Code A

nnotated section 3 9-13-527 (a)(1) (A) (Sup p. 1998) p

rovides: (a) Sexual batt

ery by a n authority f

igure i s unlawfu

l sexual c o ntact witha victim by the defe

ndant or t

he defe ndant by a victim accompa nied by all of the following

circumst ances: (1) The victim was, at the time of the offense, thirteen (13) y ears of age or older but less than eightee n (18) yea rs of age; and . . .
(A) The d efendant

had, at the time of the offense, supervisory or disciplinary

power over

the victim by

virtue of the defe ndant’s l egal, professional o r occupa

tional sta

tus and use d such pow er to accompl ish the se xual conta

ct. Sexual battery by

an authority fig

ure is designated a Class C felony

. Id. at (b).

The appella

nt’s main complain t is that the

victim wa s an acc omplice to the offenses
as a matter

of law and there was insufficient evidence presented to corroborate her testimony

. “An accompl ic e is defined as a person who knowingly , voluntarily, and with common intent with the princi pal offers to unite in the commission of a crime.” State v. McKnight , 900 S.W .2d 36, 4 7 (Tenn. Crim. App. 19 94). This cou rt ha s obse rved that “ [a] ch

ild ca n be a n acc ompli ce in

a sexrelated case. Whe

n a child i s deemed an accomplice, the testimony

of the ch ild, like a n adult, mu st be corroborated.” Statev. Griff is , 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997) (footnote omitted).
Generally , “a defendant cannot be convicted upon the unc orroborated testimony of [an] accomplice[].” McKnight , 900 S.W.2d at 47. In other words,

there must b e some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the infer ence, notonly that a cr ime has been committed, but also that the defendant is implicate d in it; and this independent corroborativetestimony must al so in cl ud e s om e f ac t e st ab li sh in g t he de fe nd an t’ s i de nt it y. He nley v. State , 489 S.W.2d 53, 56 (Tenn. Crim. App. 1972). “The corroboration ne ed not b e conc l usive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, although the evidence is slight and entitled, when standing alone, to but littleconsideration.” State v. H eflin , 15 S.W.3d 519, 524 (Tenn. Cr im . A pp . 1 99 9) . A dd it io na ll y, such corroborative evidence may be direct or circumstantial. See State v. Spadafina , 952 S.W.2d 444, 450 (Tenn. Crim. App. 1996).-12- The trial court found that the victim was an accomplice as a mat t er of la w becau se she effectively

consented to sexual relations with the appellant. On appeal, the State argue s thatthis finding was error. If

the proof at trial indicated that the victim “did not voluntarily consent, as in the
case of rape, force, threats, fra ud or undue influence, she is not an accomplice.” Scott v. Sta te , 338 S.W.2d 581, 583 (Tenn. 1960). The State contends that the

entire crux of

the State’s case was that the [appellant], by virtue of his position of author

ity a s the victim’s princ ipal a nd baske tball coach, brought undue influence to bear on the victim, who was experiencing problems at home with her stepfather and was vul nerabl e to the [appella nt’s] manipulations. Indeed, that is the intent behind the crime of sexual battery

by an authority

figure.

Black’s Law Dictionary

1529 (7 th ed. 1999) defines undue influence as “[t]he improper use of power or trust in a way that depr

ives a person of free will and substitutes another’s object ive.” At trial, the victim testified that the appellant “manipulated me into doing things”; however, she mainta

ined that she eng aged in

the sexual

a cts because s he “had feelings for [the appellant].” We cannot conclude that the proo f at t rial established that the victim’s consent was involuntary

or that the appellant’s influence was such that the victim wa s deprive d of her f ree will

. Moreover, even if, as the Sta te sugg ests, the

exertion o f undue in

fluence is the har m so ught to be curtailedby the law ag ainst sexual battery by an author ity f igure, corrobo

ration wo uld never theless be required

to su st ai n t he ap pe ll an t’ s c on vi ct io ns fo r s ta tu to ry r ap e. Ac co rd in gl y, having concluded that the trial court co

rrectly determined that the victim w as an ac complice to these cr

imes, we m

ust now determine if sufficient evidence exists to corroborate he r testimony.

The appellant was found guilty of sexual battery

by an authority

figure and statutory rape based upon the events of January 16, 2000. As we noted supra , the victim testified that on January 16, her parents were out of town and the appe llant picked her up at her house after she finished baby-sitting he

r brother. The two went to the appellant’s house where the appellant touched her breasts and performed oral sex on her. Watson asserted that the victim left a note explaining that she had gone to the appellant’s house. She calle d her home from the a

ppellant ’s house, which ca ll her sister confirmed by a

nswering the telephone and checking the ca ller identification system. The victim testified thatthe appellant took her home, and the victim’s sister testified that she observed the appellant bring the victim home. The appellant denied seeing the victim

on this occasion, but admitted that he drove by he r house.

The appellant was found

guilty of sexual battery by

an authority fig

ure and statutory rape based upon his digital penetration of the victim on February 8, 2000, during the half-time of the Clifton boys’ basketball g ame. Additionally, the appe llant was found guilty of

the two offenses for the events of Marc h 3, 2 000, when the appellant came to the residence w here the victim was babysitting

and performed oral sex on her in his car. On Marc h 4, 2000, the appe llant also performed

oral sex upon the victim in the coaches’ office, but t hey were int errupte d by

McIn tosh knocking on the office door.-13- Ad di ti on al ly, the appellant was convicted of sexual b attery

by a n authority

figure and statutory rape based upon the appellant and the victim performing oral sex on each other in the school counselor’s office on March 5, 2000. The appellant’s convictions for March 14, 2000, were basedupon the victim’s performance of oral sex upon the a

ppellant in an equi

pment roo m at schoo l.

“G en er al ly, the question of corroboration of an accomplice’s te stimonyis for the jury to determine.” State v. Ro bert Allen Garner , No. 03C01-9205-CR-00178, 1993 WL 3474, at *4 (Tenn. Crim. App. at Knoxville, Jan. 11, 1993). The victim’s accounts of these offenses were corroborated

in general by

the testimony of Watson and Grace, w hich testimony recounted the general behavior

of the victim and the appellant toward each other. They frequently touc

hed each other and would not break ey e contact with each other. Watson was often with the appellant and the victim when they we

re in the driver’s education car and witnessed them act

especia lly f amiliar w ith eachother. Particularly, Watson noted that the appellant spoke so softly to the victim that Watson
was unab le to overhear their conversation. Moreover, Watson maintained that, when she and the victim went to the school to practice basketball, the victim and t h e appellant would go into the weight room together. Grace

asserte d that the

victim began to be particularly

rebellious where the appellant was concerned

and noted that the appellant freque ntly called h er home. The appe

llant also gave th e victim ke

ys t o the school gym. Additionally , Jane Martin testified that the appellant was often alone in his offi ce with the victim, more often than with any other student. Furthermore, Agent Jack testifie d conce

rning nu merous c alls to the appellant whichwere billed to the appellant’s calling card number, calls which originated fr om places the victim was staying

. Finally, the appe

llant was also found guilty of sexual battery by

an authority fig

ure and st at ut or y r ape based upon the events of March 18, 2000. Jessica McI ntosh witnessed the appellant and the vi ctim k

issing “p assionately” on this date. Mc Intosh testified that the appellant and the victim were still at the gy mnasium when she left. Subsequently, the victim and the appellant went into the counselor’s office and performe d oral sex on each other.

Moreove r, the Sta te contends that the appellant made two “tacit admissions” to the sexual contact with the victim. The State argues that the first such admission occurred when Grace confronted

the appellant at the school on February 14, 2000, and the appellant did not deny a sexual relation ship with the victim. The State postulates that the second tacit admission occurred when “the victim was taping her conv ersation withhim and he remained silent, only sig hing, when confronted with her statement that she told the authorities that he had ‘fingere d’ her.”

Our cour ts have r ecogn ized that when a statement is made in the presence and hearing of

one accused of an off ense and the state ment tend s to incrimina

te him, or i s of an incriminating character, and such statement is not denied or in any way objected to by him, both the statement and the fact of his failure to deny it or make

any response to it, is adm

iss ible a ga inst him as evidence of his acquiescence in its truth.-14-

Ledu ne v. State , 589 S.W.2d 936, 939 (Tenn. Crim. App. 1979). Before a tacit admission may be used as evidence against a party , several requirements must be met. “First, the party against whom it is used must have heard and understood the other person’s stateme nt.” Neil P. Cohen, e t al. , Tennessee Law of Evidence , § 8.06[4][d], at 8-44 (LEXI S publishing, 4th ed. 2000). After satisfying that requirement, it must next be established that the subject matter of the ac cusation

must be wit

hin the knowledge of the party

. Id. Additional ly, “t he pa rt y must have been phy sically

able to communic ate a clarification or disagreeme nt.” Id. As a fina

l require ment, “the circu

mstance s must have been such that the par ty woul d probably have

responded if he or she disagree d with the statement.” Id. An example of a tacit admission is “silence in the face of a damning acc usation.” Id.

In relation to the first proposed tacit admission, we note that Grace co nfro nted the appellant by say

ing to the appellant, You can go ask two of your most trusted staff and ask them, “Do y ou think I am screwing

[the victim]?” . . . and if you like them and .

. . you trust them, they’ll tell y ou, “Yes.” Her frie nds think you are screwing her. Grace asserted that the appellant did not den y an i napprop riate re lationship with the vi ctim. Ad di ti on al ly, the victim later called the appellant and told him that she had informed the authorities that he had “fingered” he

r. Afte r bei ng in form ed of this s tatement, the a

ppel lant o nly

sighed. We
co nclude that, in both instances, the jury could have considered the appellant’s silence a s a taci t admission of

the acc usatio ns against him. See State v. Ly on , 648 S.W.2d 9 57, 959 (T enn. Crim. App. 1982 ). We conc lude that , based u pon all the

foreg oing pro of, the ju

ry could have found that the victim’s testimony reg arding the offenses was sufficie ntly corrobora

ted.

B. Consolidation of Offenses As his second complaint, the appellant contends that the trial court err ed “ by consolidating the eleven (11) indictments for the purposes of trial in this cause.”Initi ally , we note that the appellant did not include in the record fo r our review a copy of the transcript of any procee dings related to this issue. Thus, the appellant has waived this issue on appeal. See Tenn. R. App. P. 24(b). “[T]his Court will not speculate what the missing portions of the record may or may not reveal.” State v. Keen , 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999).
C. Smith’s Testimony As h is third issue, the appellant contends that “[t]he trial court erred in its ruling s regarding the admissibility of

the testimony of prosecution witness Tabitha Smith.” The a ppellant argues that Smith’ s testimony was irre levant, o r, if rel evant, w as imp roperly a dm itted witho

ut a proper hearing in compliance with Tenne ssee Rule of Evidence 404(b).

On direct examination, the appellant stated that the victim called him while he was attending a seminar in Nashville. According to the appellant, the vic tim called to inquire about the appellant’s relation ship with Smith, a former student. The appellant theorized that the two females-15-

were in a “competition” or “rivalry ” for his affections. However, on cross-e xamin ation, the appellant denied having a sexual relationship with Smith.

Following the conclusion of defense proof and while the jury was out of the courtro om, the State informed the trial court that it wished to call Smith as a reb uttal witnes s to attack the appe llant’s c redibilit y. T he trial c ourt state d that i f the evi dence was regarding “other misconduct” by t

he appellant, the

court mus t first co nduct a hearing in compliance with Tennessee Rule of Evidence 404(b) and further stated, “I consider wha

t we’re doing now is the jury out hearing under 404.” However, the appellant never formally reque sted such a hearing. At the conclusion of the “hearing,” the

trial court

determined that it would allow Smith’s testimony, finding “that it is not offered under Rul e 404 to pr

ove cha racter in gene ral or the propensi ty to engag e in cer

tain cond uct, but to test the credibility of the witness.”

Before the jury was brou ght bac

k in the cour

troom, the State made an offer of proof regarding Smith’s testimony. Smith asserted that she had sexual relations with the appellant and that the relationship began “[t]wo weeks before the Aug ust of ‘99 school yea

r” and lasted until June or July 2000. Smith

explained that she had graduated from high school in May 1999 and was eighteen ye ar s of age at the time of the relationship. Smith informed the court that in Febr uary 2000 the victim talked to Smith concerning Smith’s relationship with the appellant.

Following this proffer, the trial court ob served tha t neither the appe llant or Smith
were married

to other people at the time of the offenses. Additionally , Smith was eighteenye ars old when the rela

tionshipbegan and she was no longer a student. Accordingly , the trial court determined that their relationship “would not be a crime, it would not be a – necessarily a bad act, even.” The trial court further explained:

I don’t think it’s a 404 situation, but at the same time , in case

it falls unde r any of these

rules, the four hundred rules, or the six hundr e d rules, or any

others, t he Court f

inds th a t this evidence is probative. One, on the cr

edib ility of

the [appellant], significantly probative on that issue. Also, it may have some proba tive and corroborative

value
on the relationship alleged by [the victim], which might cause a usual and natural feeling of jealousy if there was any

word getting around about that, during the early

months of 2000. So, I think fo r bot h reasons, it’s probative in this case. . . .
[The testimony is corroborative to] explain the reasons for the phone calls and why [the victim] woul d ha ve cared about those kind of things, because of the alleged re lationship between her an d [the appellant] at that time.

The jury was then broug

ht back into the c ourtroom

. Smith testified that she began
a sexual relationship with the appellant shortly after her graduation from Frank H ughes High School and the affair lasted for

several months. Smith stated that the appellant was principal of the school-16-

when she was a student at the high school. Smith related that she was eighte en y ears old at the time of her sexual relationship with the appe llan t. Smith also asserted that in February 2000, she was confronted

by the victim

regar ding he r relati onship with

the appe llant. On cross -examinat

ion, Smith admitted that she told a defense investigator that she had not had sex with the appellant. However, Smith maintained that

she later confessed the

truth to the investigator. Smith testified that after the vic t imfound out about Smith’s relationship with the appellant, she would “chase [Smith] around and honk her horn” and would “ru n up on [Sm ith] and flip birds at [Smith].” Smith opined that the vi ct im ’s be ha vi or wa s a re su lt of je al ou sy. As we noted earlier, the

appellant has essentially r aised this issue under

Tennessee Rule of Evidence 4 04(b). Su ch rule p rovides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a per son in orde

r to show a

ction in conform ity with the ch ar ac te r t ra it . It ma y, however, be admissible for other pur poses. The condit

ions which must

be satisfied before allowing such evidenc e are: (1) The court upon request must hold a hearing outside the jury's presence ; (2) The court must determine t hat 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 mus t exclud e the evi dence if its proba tive valu e is outweighed by

the danger of unfair prejudice

. Ge ne ra ll y, the trial

court ha s the discretion to a dmit evide

nce unde r Ru le 404(b). See State v. Dubose , 953 S.W.2d 649, 652 (Tenn. 1997).

Regar dless, to ensure compl iance with this r ule, seve ral “pr otective procedu res” mus t be followed prior to the admission of the contested evidence. State v. James , 81 S.W.3d 751, 758 (Tenn. 2002). To begin, the trial court, upon requ est , must hold a jury-out hearing concerning the admissibilit y of the other acts evi dence in

order to determine whethe

r the pro ffere d evidenc e is relevant to prove a material issue other than the character of the accused. Id. In the instant case, as
we have mentioned, the appellant never formally reque sted a Rule 404(b) hearing . Never theless, it appears that the tr

ia l court and the appellant were in concert in believing that such a hearing was necessary

. “Second, upon a finding of relevance, the c ourt must find and state on the record the specific issue to which the evidence is relevant.” Id. The trial court determined that the proffere d testimony was releva

nt to the appella

nt’s cre dibility

and to corroborate that the victim perceived a relation ship between herself and the appella nt. Finally, we note

that the trial court balanced the probative value of

the evidence against its prejudicial effe ct and concluded that

the probative value of the evidence outweighed any unfair prejudice. Id. Based upon the trial court’s statemen

ts, it is clear that the court determined that the evidence was proba tive to the appellant’s credibi lity and that,-17-

because the contested testimony

concerned behavior that

was not “necessarily

a bad act, even,” the probative value outweighed any possible prejudicial effect.

This court has also noted that “[a]ny competent evidence which explains or is a direct reply to, or a contradiction of, material evidence introduced

by the acc

used, or which is brought out
on his cross-examination is admissible in rebuttal.” Nease v . State , 592 S.W.2d 327, 331 (Tenn. Crim. App. 1979). In other w ords, “‘[r]ebutt[al] evidence’ is that which tends to explain or controvert

evidenc e produc ed by

an adve rse party.” Cozzolino v. Sta te , 584 S.W.2d 765, 768 (Tenn. 1979). The admission of rebuttal evidence is within the sound discretion of the trial court and

we will not over turn the trial court’s decision absent an abuse of that discretion. See Statev. Dellinger, 79 S.W.3d 458, 488 (Tenn. 2002).

As we earlier noted, the trial court determined that Smith’s testimony regarding her sexual r elations hip with the appellant “may ha ve some probative and corroborative value on the relation ship alleged by

[the victim], which might cause a usual and natural feeling of jealousy if there
was any word getting around

ab ou t t ha t, du ri ng th e e ar ly m on th s o f 2 00 0. ” W e a gr ee . A cc or di ng ly,
we conclude that the trial court did not abuse its discretion in permitting the State to demonstrate that the appella

nt was be ing lessthan candidwith the jury. See State v. To m Harris , No. 86-273-II I, 1988 WL 63535, at *4 (Tenn. Crim. App. at Nashville, June 23, 1988).

D. Improper Closing Arg ument In his next

issue, the appella nt compla ins that the

State mad

e sever al “obje ctionabl e remark s” during the course of cl os in g a rg um en t. Sp ec if ic al ly, the appellant challenges the following remark s: (1) “I think he th in ks th at no bo dy c an stop him and he can do anything he

wants to do.” (2) When address ing the j ury about tel ephone r

ecords, the prosecutor stated “Not t

he kind of

calls you have with a student or your principa l. Who do you call when you go out of town ? Do you call your friends usually whe

n you go out of

town for a f

ew days? No. Do you even ca

ll your other relatives, your brothers or sisters that you are just out of town for a few day s? Who do you call? (3) “If a girl c alls me up and says, ‘I just told somebody you raped
me. That you put your fin g er inside me.’ If it is not true, what ar e you go ing to s ay ? You are going to jump up and down.” (4) “[The app ellant] betraye d every c itizen of Wayne County to trust him.” (5) “If Jessica hadn’t seen them kissing and brought it all out and got it all in the open, he would probably be protected

today and he

would be the principal in Clifton teaching our kids and that’s true.” (6) In refere

nce to [the vict

im’s] testimo ny, the prosecution sta ted in reference to the clo sing re

marks mad

e by defense counsel, “they c an’t-18- offe r any exp lanation

as to why

she migh

t say this, put he

rself throu gh the emba

rrassme nt, put her through this agony that she went throu gh a whole da y o n this stand, drilling other than vendetta or vengeance.” (7) In refere

nce to the [appellant’s] statements made during a tape recorded telephone conve

rsa tion the prosecution stated “If I am innocent, I’ll tell you what I’ll agr ee to.” (8) “As far

as I’m concer

ned I don’t care

how many master’ s degrees he has got. I don ’t care

how many

degre es he has

. . . I don’t care what kind of ed

ucation h e had. He don’t hav e a lice

nse to com

e into Wayne County

and do this to one of our children.” The appellant co ntends t hat all of these remarks were improper “ appeals to the jury ba sed on sym pa th y, pre

judice, orbias.” However, the appellant did not object to any of the foregoing statemen ts duri ng the Sta

te’s closing arguments. Theref ore, the appellant has waived this issue. Tenn. R. App. P. 36 (a); Statev. Lit tle , 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). Ne verthel ess, we conc lude that

the State did not com

mit rever sible err

or by making t he state ments.

“In determin

ing whe ther stat ements made in closing argume nt constitu

te reve rsible error, it is nece ssary

to deter mine whet

her the s tatement s were i mproper and, if so, whether the improprie ty affected the verdict.” Statev. Pulliam , 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). In c onnectio n with this is sue, we m ust examine

the following factors: “(1) the conduct complained of viewed in context and in light of the facts a nd circu mstance s of the c ase[;] (2) the curative m easures undertaken by the court and the prosecu tion[;] (3) the in tent of the

prosecu tor in making the st

atement[; ] (4) the cumulative effect of the improper conduct and any

other errors in the record [; and] (5) the relative strength or wea kness of the case.” Id. (quot ing Judge v. St

ate , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

The State initially contends that “[i]tem 1 is not personal opinion. While a prosecutor may not expres s a personal opinion or belief, comments during arg ument prefaced by

phrases such
as ‘I think’ or ‘I submit’ are unlikely

to be adjudged opinions.” Furthermore, the State a rgues that “[i]tems 2, 3, 5, 6, and 7 relate either to the [appellant’s] explanation of his phone calls to the victim
or the [appellant’s] sta

tements d uring hi s taped c onversa

tions with th

e victim.” Finally , the State explains, “Items 4, 5, and 8 address the [appellan t’s] evidence and argument re lating to his character as an educator and his experience and educ ation, brought out during his closing arg ument.”

We note that the State has correctly stated the law regarding this court’s e valuation of “I think” and “I

submit” p hrases. See Coker v. St ate , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). In our view, items 2, 3, 6, and 7 are fair comments regarding the evidence. Id. With regard to items 4, 5, and 8, we observe that “[a]rguments concerning deterrence

and appe als to the j ury

to-19-

act as the community conscienc e are not necessarily

impermissible.” Pulliam , 950 S.W.2d at 368. Furthermore, after taking into consideration the afore mentioned factors from Pulliam , we conclude that “the prosecutor’s argument was not so inflammatory that it affected the verdict to the appellant’s detriment.” Id. at 369.
E. Sentencing

Fi na ll y, t he appe ll ant contends that he should have been grante d judicial diversion
or granted probation. Appellate review of the length, range or manne r of service of

a sentence is de
novo. Tenn. Code Ann. § 40-35-401(d) (1997). I n cond ucting its de novo review, this court considers the following factors: (1) the evide nce, if a ny, receiv ed at the

trial and the sentencing hearin g; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alterna tives; (4) t he nature and characteristics of the criminal conduct involved; (5) evidence and information offered by

the parties on enhancement and mitigating factors; (6) any

statement

by the appellant in his own behalf; and (7) the potential for rehabilitation or trea tment. Tenn. Code Ann. §§ 40-35-10 2 and -10 3 (1997), -210 (Sup p. 2002); see also Statev. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The burdenis on the a ppellant to demonst

rate the improprie

ty of his sentences. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the trial cou

rt adequ ately

consider ed sente ncing p rinciple s and all

releva nt facts a nd circu mstance s, this court will accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby , 823 S.W.2d at 169.

The appellant does not conte st the leng th of his sentence; again, his complaints center aroundthe trial court’s denial of j ud icial diversion and probation. Tennessee Code Annotated section 4 0-35-313 (a)(1) (A) (Sup p. 1998) p

rovides: The court may def

er further procee dings ag ainst a

qualified defendant and place such defendant on pr obatio n upon such reason able conditions as it may require without entering a judgment of g uilty and withthe consent of the qualified defendant. Such deferral shall be for
a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged, or not more than the period of

th e ma ximum sentence of the felony with which the person is charged. At th e c on cl us io n o f s uc h p ro ba ti on ar y pe ri od , t he de fe nd an t m ay a pply to the court for the expungement

of the conviction(s) from all official records. Id. at (b). This process is kn ow n as judicial diversion.

It is w ithin the tr

ial cour t’s discr etion togrant or deny

judicial diversion. See State
v. Parker , 932 S.W.2d 945, 958 (Te nn. C rim. App. 1 996). As s uch, the t rial cou rt’s dec ision will be overtur

ned only if the court abused its discretion. Id. In oth er word s, we will no t interfe re with the denial of

judicial d

iversion if th e rec ord contains any substantial e vidence to support the trial court’s refusal to grant diversion. Id. Moreover, we ob serve th at “judic ial diver sion is simila r in purpose to pretri al diver sion and isto be impos ed within t he discr etion of th e trial c ourt subje ct only to the same constraints applicable to pros ecutor s in applying pre trial diversion under [Tennessee-20-

Code Annotated section] 40-15-105.” State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

The tria

l court mus t conside

r all of th e following fac tors in

determining whether

to grant t he appellant judic ial diver sion: (a) the accuse d’s amen ability

to correction, (b) the circumstances of the offense, (c) the accused’s criminal record, (d) the accused’s social hi st or y, (e) the status of the accused’s phy sical and mental health, and (f) the d eterrenc e value to the accused as well as others. The trial court should als o conside

r wheth er ju dicial diversion will serve the ends of justice--the interests of the public as well as the acc used. Statev. Lewis
, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). The record must reflect that the trial court has take n all of the preceding factors into consider ation. State v. Electroplating, Inc ., 990 S.W.2d 2 11, 229 (Tenn. Crim. App. 1998)

. Furthermore, “[t]he court must explain on the record why the [appellant] does not qu alify under its analy sis, and if

the court has based its determination on only some of the factors, it must explain why these factors outweig h the others.” Id.

Ad di ti on al ly, we recognize that an appellant is eligible f or probation if the sentence actually imposed is eight yea

rs or les s. Tenn. Code Ann. § 40-35-303(a) (1997). Moreover , an appellant who is an e specially

mitigated or standard offender convicted of a Class C, D, or E felony is presu med to be a fav orabl e candi date fo r alte rnati ve sen tenci ng. Tenn. Code Ann. § 40-35-102(6). Taking the foregoingfactors into consideration, we conclude that the appellant is presumed to be a favora ble candidate for alternative sentencing

. However, this presumption may be rebutted by “evidenceto the c ontrary.” State v. Z eolia , 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The following sentencing considerations, set forth in Tennessee Code Annotated section 40-35-103(1), may constitute “evidenc e to the contrary ”:

(A) Confi nemen t is n ecessa ry to prot ect so ciety by rest raini ng a defenda nt who has a long h

istory of crimin al conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or (C) Measures less r estrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. Zeolia , 928 S.W.2d at 461

. Moreover, “[t]he same guidelines are applicable in diversion cases as are applicable in probation cases, but they are more stringently

applied to those seeking diversion.” Statev. Bingham

, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by Statev. Hooper

, 29 S.W.3d 1 (Tenn. 2000). Thus, we will begin our review with a de termination of the appellant’s suitability for pr obation.

Ini ti al ly, we no te that, instead of a court reporter’s transcr iption of the evidence produced at the sentencing hearing, this cour t was instead provided with a synopsis of the proof as written by c ounsel fo

r the State

and the a ppellant . This sy

nopsis wa s approved by

the trial court

. Counsel produced the sy

nopsis “based on the fact that the tape recording of the sentencing hearing-21-

was inaudible and, a s a res ult, the court reporter was unable to reproduce same for the purpose of filing a typed, v erbatim tran script of the testimony prese nted and the opening statements and arguments of counsel.”

The statement of evidence reflects that the app ellant filed “Letters I n Support of Walter Clyde Raney , Jr.” to act as mitigation. The State filed as exhibits the appellant’s presentence report and the psycholog

ical report of Dr. John W. Lancaster which wasprepar ed in comp liance w ith Tennessee Code Annotated section 39-13-705 (1997).

Jerry P igg, the superintendent of schools fo r Wayne County , testified at the sentencing hearing that the appellant’s “activities prior to being indicted were a hot topic amongst the teachers and other citizens of Wayne County .” Pigg noted that the appellant’s offense s “put a black ey e on the school and the school system.” F urthermore, Pigg asserted that many people, within and without the scho ol system, were pa ying atten tion to th e outc ome of the ap pella nt’s s enten cing he aring. Fi na ll y, Pigg concluded by observing that the appellant was aware th at, a few y ears prior to the appellant’s offense s, another teacher at the same school had been convicted of the statutory rape of a student.

TBI

Agent Vance

Jack testif

ied that a t the time of the sentencing hearing the re were forty-eig ht(48) defendants serving sentence s in the Tennessee Department of C orrect io n for violations of the sexual battery by an authority fig

ure statute. Howe ver, Agent Jack was unaware of how many def

endants convicted of that statute were on probation.

Gina Grace, the victim’s mother, testified that on February 14, 2000, she instructed the appellant

to discontinue his relat

ionship wit

h the vict im. Moreo ver, Gr

ace note d that the

victim “hadencounte

red conf rontation s at schoo l, was some times ner vous and u

pset, and that h er reputat

i on had suffered.”

In sentencing the appellant, the trial court “re view[ed] the exhibits and the law.” After reading the supportive letters, the trial court observed that it was impressed by the rec ord of the appellant as an educator and noted that “during his 30 years as a

n educator h e had helped all kinds of people of varied

race, age, and bac

kground.” However, the trial court further observe d that “[t]he seriousness of these offenses cannot be overlooked.”

Th e tria l court acknowledged that the appellant had a n extensive history as an educator and had n o history

of crimin al conduct, but dete rmined th at the instant offenses were serious offense s “aga

inst the ed

ucationa l sy stem itself

.” The c ourt f

urther recog nized that the appellant was presumed to be an appropriate candidate for alter native sentenc ing. How ever, du e to the seriousness of the offense and the need for deter rence, the court

denied the appellant probation and judicial d

iv ersion . Specifically, the c ourt noted that the appellant “should be placed on the sexual registry

so that he can’t be in a position so that he is exposed to young people not having supervision by o th er ad ul ts .” Fi na ll y, the cour t determined that “ split conf inement isnot appro

priate-22-

in this case because the

Wayne County

Jail is overcrowded and [the appellant] had Clorox thrown on him when he was incarcerated ther e prior to his making bond.”

Even given the limited sentencing record before us, it is obvious that the trial court considered

the appellant’s lack of criminal history a nd his community support. Regardle ss, the trial
cour t determined that the seriousness of the offenses and the de terrence factor outweig

hed the positive factors in support of alternative sentencing.

First, we will address the seriousness of the offenses. When imposing confinement basedupon the serio

usness of the offe nse, the t rial cou rt must fir st

determine if “‘the circumstances of the offense [s] as c ommitted [are] especially violent, horrify ing, shocking, rep rehensible, offensive , or otherwise of an excessive or exagge rated degree.’” Zeolia, 928 S.W.2d at 462 (q uoti ng Bingham , 910 S.W.2d at 454). At trial, the proof revealed that

over the course of several months, the appellant repeat edly sexually abused th

e victim, a st udent with whom he had developed a “father fig ure” relationship. The sexual relationship continued evenafter the appe llant was instructe d by

Grace to leave the victim alone because there we re rumor s of an ina

ppropria te sexual r

elationsh ip. In fact, there had evenbeen an inquiry into the appropriateness of the appellant’s behavior prior to Jessica McIntosh’s witnessin g th e appell a nt kissing the victim. Despite the warnings of the inapprop riatene ss of

his conduct, the app ellant ne verthel ess pursu ed his sexua l relatio nship with the victim, only stopping when the rela tions hip wa s expo sed b y M cI ntosh . Weconclude

that these facts justify a denial of probation based upon the seriousness of the offenses. Furthermore, beca use the probation guidelines are more stringently applied to an appellant seeking judicial diversion, we further conclude that

the trial court properly

denied diversion on the basis of the seriousness of the offense s. See State v. George William King , No. M2001-02026-CCA-R3-CD, 2002 WL 31520648, at *4 (Tenn. Crim. App. at Nashville, Nov. 13, 2002).

The trial court also determined that diversion and probation should be denied based upon the deterrent effect

of t he appellant’s incarceration. I n State v. Hooper , 29 S.W.3d 1, 10-12 (Tenn. 2000), our supreme court specifically noted five factors for consideration when d enying probation solely upon the basis of dete rrence: (1) Whethe r oth er incid

ents of the charg ed offe

nse are increa singly present in the community, jurisdiction, or in the state as a whole.

. . . . (2) Whet her the d

efenda nt’s crim e was the

result of intentiona

l, knowi ng, or reckless conduct or was otherwis e motivated by a desire to profit or gain from the criminal behavior.

. . . . (3) Whether the de fendant ’s crime and conviction have received substantial publicity bey

ond that normally expected in the ty pical
case.

. . . .-23- (4) Whether the defendant was a member of a criminal enterprise, or substantia lly encouraged or assisted others in achieving thecriminal objective.

. . . . (5) Whether the defendant has previously engaged in criminal conduct of the same type

as the offe nse in qu estion, irrespective of whether such con duct res ulted in pr evious ar rests or c onviction s. First, we note that

Pigg testified that the appellant was aware that a fe w year s prior to the instant offenses another teacher at the sa me school was convicted of the st atutory rape

of a student. Neverth

eless, the appell ant chose to enga ge in a s exual rela

tionship with a stude

nt, which could indicate an increase in the presenc e of such offenses. Moreover, the re petitive nature of the appella nt’ s crime s demonstrates the “intentional” or “knowing” nature of his conduct. Hooper

stated that “[a]ctionsthat are

the result of intentional, knowing, or reckless behavior . . . are probably more deterr able than those which are not

the result of a conscious effort to break the law.” 29 S.W.3d at 11. Pigg also maintained

th at th e a pp el la nt ’s ca se wa s b ei ng ca re fu ll y sc ru ti ni ze d b y th e c om mu ni ty, particu larly

by t hosewithin the

school sy stem. Our

supreme court ha s stated th at “[c]riminal acts by a profe ssional in h

is or her official capacity , for example, need not be publicized statewide before deterrence

may be consider

ed as a factor. I

n most cases, substantial publicity within the defendant’s professional community would probably suffice to meet this factor.” Id. Finally, in encour aging the sexual relation ship with

the victim , the appe

llant wasargua

ble eng aged in

a crimina l enterp rise with her. Thus, the

trial cou rt prope rly considered

the effect of the appellant’s incarc eration in denying probation and judicial diversion.

Additionally, in the appellant’s psy chological report, Dr. Lancaster observed: Info rmation on

these sc ales indic ate

a high level of minimization in the form of denial related to the charge s. Information obtained from his probation officer indicates that he was not particula rly honest during his trial in relation to phone cards, i nvolveme nt with a minor and inv olvement

with use of

school pr

operty by t he victim. This infor ma tion along w ith information obta ined on the

test would indicate someone who is denying

their involvement in this crime. He had a high level of minimization as noted previously w hich i s als o indicative of

many individuals who have bee n accused and

convicted of sexually inapprop riate se xual behav

iors. Wher

e there is appar ently
no indication of

anyone be

ing victimized

in the pas t, individu als that, in my experience, have had similar profileshave man

y pa st victims. Cl ea rl y, considering the doctor’s assessment, the appellant has failed to take r

esponsibi lity

for thes e offense s, demonstrating poor rehabilitative potential. See State v. B ell , 69 S.W.3d 171, 175 (Tenn. 2002). Accordingly , the trial court did not err in its denial of probation or judicial diversion.-24- III. Conclusion Finding no reversible error, we affirm the judgments of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE