IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 16, 2018 

STATE OF TENNESSEE v. RICHARD SHAWN O’ROURKE

Appeal from the Circuit Court for Lawrence County

No. 30677 Stella Hargrove, Judge

No. M2017-00375-CCA-R3-CD

The Defendant, Richard Shawn O’Rourke, was convicted by a Lawrence County Circuit 

Court jury of rape, a Class B felony. See T.C.A. § 39-13-503 (2014). The trial court 

sentenced the Defendant as a Range I, standard offender to ten years, six months’ 

incarceration at 100% service. On appeal, the Defendant contends that (1) the evidence is 

insufficient to support his conviction and (2) the State engaged in prosecutorial 

misconduct. Because the State engaged in multiple instances of prosecutorial misconduct 

during closing argument, we reverse the judgment of the trial court and remand the case 

for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; 

Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA 

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Kevin S. Latta (on appeal) and William Joshua Morrow (at trial), Columbia, Tennessee, 

for the appellant, Richard Shawn O’Rourke. 

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; Brent A. Cooper, District Attorney General; and Christi Thompson, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

This case arises from the rape of the Defendant’s intellectually disabled niece, 

who was age sixteen at the time of the incident. At the April 7, 2015 trial, the victim’s 

mother testified that the victim had been diagnosed with a cognitive learning disability 

and had an I.Q. below 70. The victim’s mother stated that the victim, age nineteen at the 

time of the trial, was still in high school and that the victim was placed in the “Special 

09/19/2018
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Needs Department.” The victim’s mother said that the victim was classified as a high 

school junior but that her development was consistent with a third- or fourth-grade level. 

The victim’s mother testified that the Defendant was her brother-in-law and that 

the incident occurred in April 2012. The victim’s mother stated that she, her husband, the 

victim, and her younger son traveled to Chicago to celebrate her older son’s boot camp

graduation. The victim’s mother said that the Defendant had been staying in the family’s 

home for a few months before the incident and that he stayed in the home while the 

family traveled to Chicago. The victim’s mother said that after the family arrived at 

home, everyone went to bed. The victim’s mother stated that her bedroom was located 

on the main floor and that the victim, her younger son, and the Defendant each had a 

bedroom in the basement.

The victim’s mother testified that she awoke the next morning around 7:30 a.m., 

that the victim was in her room sleeping alone, and that she told the victim the family was 

going to church. The victim’s mother stated that before leaving for church, the victim

shared with her information relative to an incident with the Defendant and that the 

victim’s mother called the police. 

On cross-examination, the victim’s mother testified that the victim understood the 

difference between right and wrong, that she and the victim had prior conversations about 

sexual activity, and that the victim was not sexually active before the incident. The 

victim’s mother stated that the Defendant was awake when the family arrived home from 

Chicago, that the Defendant appeared intoxicated but alert, and that the Defendant 

consumed alcohol daily. The victim’s mother stated that she told the victim and her 

younger son to go to bed, that she saw both children walk downstairs, and that she went 

to bed. The victim’s mother said that she slept through the night and that she did not hear 

any noises coming from downstairs. 

The victim testified that she was age nineteen and that the Defendant was her 

uncle. The victim stated that she lived with her parents and younger brother and that her 

bedroom was located in the basement of her home. The victim said that she and her 

family went to Chicago to watch her older brother graduate, that the Defendant stayed 

home, and that the Defendant was home when the family returned. 

The victim testified that she went to bed in her room and that her “hole” began 

hurting because she had not consumed water. The victim stated that she went in the 

Defendant’s bedroom to tell him that she was in pain and that the Defendant’s room was 

the closest room in proximity to her bedroom. The victim said that the Defendant asked 

“would you like me to rub it to make it feel better,” that the Defendant rubbed “inside of 

[her],” and that she did not want the Defendant to touch her. The victim stated that the 

Defendant rubbed her “bladder.” When asked to stand and point to the area the 

Defendant “rubbed,” the victim pointed to her vaginal area. The victim stated that she 
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was wearing panties and a nightgown, that the Defendant “was rubbing it inside [her]

panties” with his hand, and that “I just kept saying, ‘uh-huh,’ but I don’t know it.” When 

asked whether the Defendant’s hand “went inside [her] body,” the victim responded 

“yes.” The victim said that she lay on the bed with the Defendant, that the Defendant 

“rubbed” her for a while, that the Defendant fell asleep, and that the Defendant awoke

and touched her breasts under her nightgown with his hands. The victim stated that when

the Defendant touched her breasts, she noticed a “flying thing,” that “the flying thing was 

just like a little imagination to me as an angel,” and that it was probably a bug in the 

lampshade. 

The victim testified that the Defendant fell asleep again and that the Defendant 

walked her to her bedroom around 5:00 a.m. The victim stated that the Defendant “didn’t 

want me to tell . . . my parents that he was touching me down my body.” The victim 

stated that she asked the Defendant to stop touching her during the incident and that the 

Defendant did not stop. The victim said that the Defendant asked whether she “ever 

touched myself down there, and I just told him, ‘Whenever I, like, wash my body and 

stuff like that.’” The victim stated that her mother woke her up the following morning 

for church. The victim said that she asked her father, “[W]hy does [the Defendant] do 

weird things?,” as they were leaving for church and that she told her family the 

Defendant “touched me in my body.” 

On cross-examination, the victim acknowledged she had practiced testifying with 

the State but that neither the State nor her parents told her what to say at the trial. The 

victim stated that she understood the difference between the truth and a lie and that she 

told the truth during her testimony. The victim said that she told her parents that the 

Defendant “was just rubbing” with his hands and that the Defendant did not “put 

anything inside of me.” The victim stated that she knew what the Defendant did was 

wrong and that she waited to tell her parents until the morning because she was scared. 

The victim said that the Defendant rubbed inside of her body, although she later said that 

“nothing went inside of my body . . . I’m pretty sure about that.” The victim stated that it 

“hurt while he was touching me inside my body” and that she did not think the Defendant 

placed his hands inside her “hole.” The victim stated that the Defendant touched her on 

the outside of her body but that it hurt inside her body. 

On redirect examination, the victim testified that the Defendant “didn’t rub me in 

there” and that the Defendant did not “touch it - me in the hole.” The victim stated that 

the Defendant touched her with his hand in the area around her “hole.” 

Lawrence County Sheriff’s Sergeant Tony Beard testified that he went to the

family home on April 22, 2012, and that he spoke with the victim’s parents about the 

incident. Sergeant Beard stated that the Defendant was in a basement bedroom and that 

he escorted the Defendant outside because the victim’s father no longer wanted the 

Defendant in the home. 
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On cross-examination, Sergeant Beard testified that on the Tennessee Incident 

Base Reporting System (TIBRS) form, he initially entered the offense as aggravated 

sexual battery but later amended it to rape after speaking with the District Attorney 

General. On redirect examination, Sergeant Beard testified that he wrote his report 

before speaking with the victim. 

The victim’s father testified that he and the Defendant were brothers and that the 

Defendant was staying in his home at the time of the incident. The victim’s father said 

that he and his family returned home from Chicago on the night of April 21, 2012, and 

that the family went to bed soon after arriving home. The victim’s father stated that the 

family woke the next morning to go to church, that he noticed the victim had a “bothered 

look on her face,” and that he asked the victim if something was wrong. The victim’s 

father said that based on the information the victim provided, he went downstairs to the 

Defendant’s bedroom, “grabbed [the Defendant], and told him it was time to leave.” The 

victim’s father stated that he saw vodka bottles and “remnants of marijuana in coat 

pockets” in the Defendant’s bedroom. 

The victim’s father testified that the Defendant had been living in his home for 

about one week before the incident. The victim’s father testified that the victim’s mother 

called the police and that officers arrived at their home. The victim’s father stated that 

after he told the Defendant to leave the home, the Defendant fell asleep and that officers 

escorted the Defendant outside. 

Lawrence County Sheriff’s Lieutenant Nathan Neese testified that when he arrived 

at the home, he placed the Defendant in his patrol car and that he advised the Defendant 

of his Miranda rights. Lieutenant Neese stated that the Defendant signed a form waiving 

his Miranda rights, that the Defendant agreed to speak with him, and that the Defendant 

signed a statement. The Defendant’s statement was introduced as an exhibit and read to 

the jury. In the statement, the Defendant said that the family returned home from 

Chicago, that he was intoxicated, and that he went to bed. The Defendant stated that he 

awoke at 6:00 a.m., that the victim was in his bed, and that he told the victim to go to her 

bedroom. The Defendant denied touching the victim inappropriately and having any 

sexual contact with the victim. On cross-examination, Lieutenant Neese testified that the 

Defendant was cooperative and that the Defendant signed the statement he had written.

 Upon this evidence, the Defendant was convicted of rape. This appeal followed.

I. Sufficiency 

The Defendant contends that the evidence is insufficient to support his conviction 

because the State failed to prove the element of penetration beyond a reasonable doubt. 

The State responds that the evidence is sufficient to support the Defendant’s conviction. 

We agree with the State.
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In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 

521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence 

and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The 

appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding 

“the credibility of witnesses [and] the weight and value to be given the evidence . . . are 

resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see 

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a 

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v. 

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether 

the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 

2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes, 

331 S.W.3d at 380-381. 

Tennessee Code Annotated section 39-13-503 defines rape as: 

(a) [The] unlawful sexual penetration of a victim by the defendant or of the 

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

. . . 

(3) The defendant knows or has reason to know that the victim is mentally 

defective, mentally incapacitated or physically helpless[.]

Sexual penetration is defined as:

sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other 

intrusion, however slight, of any part of a person’s body or of any object 

into the genital or anal openings of the victim’s, the defendant’s, or any 

other person’s body, but emission of semen is not required[.]

Id. § 39-13-501(7) (emphasis added).

In the light most favorable to the State, the evidence is sufficient to support the 

Defendant’s rape conviction. The victim testified that the Defendant rubbed “inside of 

[her]” and that she told her parents that the Defendant “touched [her] in her body.” The 

State asked the victim whether the Defendant’s hand “went inside [her] body,” and she 

replied “yes.” The victim stated that she “hurt while he was touching me inside my
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body.” The victim said that the Defendant touched the inside area around her “hole” with 

his hand. Our supreme court has held that “it is not necessary that the vagina be entered 

or that the hyman be ruptured; the entering of the vuvla or labia is sufficient” for sexual 

penetration to occur. Hart v. State, 21 S.W.3d 901, 905 (Tenn. 2000); see State v. 

Bowles, 52 S.W.3d 69, 74 (Tenn. 2001); see State v. Brandon Lee Clymer, No. M2016-

01124-CCA-R3-CD, 2017 WL 5197292 at *8 (Tenn. Crim. App. Nov. 10, 2017), perm. 

app. denied (Tenn. Mar. 14, 2018). 

Although the victim’s testimony included inconsistencies about whether sexual 

penetration occurred, her credibility was an issue before the jury, and its verdict reflects 

that it credited her testimony that digital penetration occurred. We note that the 

Defendant does not dispute that the victim was “mentally incapacitated.” In the light 

most favorable to the State, we conclude that the evidence is sufficient to support the 

Defendant’s conviction. The Defendant is not entitled to relief on this basis. 

II. Prosecutorial Misconduct

The Defendant contends that multiple instances of prosecutorial misconduct 

occurred during the State’s opening statement and closing argument. The State responds 

that the Defendant has waived appellate review of this issue by failing to object 

contemporaneously to the State’s comments and by failing to raise the issue in his motion 

for a new trial. In the alternative, the State argues that the Defendant is not entitled to 

plain error relief. 

The record reflects that the Defendant failed to object to the statements that he 

alleges constitute prosecutorial misconduct. Likewise, the Defendant failed to raise this 

issue in his motion for a new trial. See T.R.A.P. 3(e) (“[I]n all cases tried by a jury, no 

issue presented for review shall be predicated upon . . . misconduct of . . . parties or 

counsel . . . unless the same was specifically stated in a motion for a new trial; otherwise 

such issues will be treated as waived.”). Our review is limited to plain error. See State 

v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). 

Five factors are relevant

when deciding whether an error constitutes “plain error” in 

the absence of an objection at trial: “(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.’”
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State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-

42). All five factors must exist in order for plain error to be recognized. Id. at 283. 

“[C]omplete consideration of all the factors is not necessary when it is clear from the 

record that at least one of the factors cannot be established.” Id. In order for this court to 

reverse the judgment of a trial court, the error must be “of such a great magnitude that it 

probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at 642. 

If improper argument occurs, a new trial is required only if the argument affected 

the outcome of the trial to a defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 

(Tenn. 2001). See T.R.A.P. 36(b). In determining whether prosecutorial misconduct 

affected the jury verdict to the prejudice of a defendant, this court has stated a court 

should consider the conduct in light and in context of the facts and circumstances of the 

case, any curative measures taken by the trial court and the prosecutor, the prosecutor’s 

intent in making the comment, the cumulative effect of the improper comment and any 

additional errors, the strength or weakness of the case, whether the prosecutor’s 

comments were lengthy and repeated or isolated, and whether the comments were in 

response to defense counsel’s closing argument. Judge v. State, 539 S.W.2d 340, 344 

(Tenn. Crim. App. 1976); see State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn. Crim. App. 2003). 

Although an exhaustive list of the bounds of prosecutorial impropriety cannot be 

defined, five general areas of prosecutorial misconduct have been recognized:

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 or 

the guilt of the defendant. See State v. Thornton, 10 S.W.3d 229, 235 

(Tenn. Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. 

Crim. App. 1978); Tenn. Code of Prof’l Responsibility DR 7–106(c)(4).

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

passions or prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State 

v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).

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. 

See Cauthern, 967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 

(Tenn. 1994).
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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.

Standards Relating To The Prosecution Function And The Defense 

Function §§ 5.8–5.9 Commentary (ABA Project on Standards for Criminal 

Justice, Approved Draft 1971).

Goltz, 111 S.W.3d at 6.

A. Opening Statement

The Defendant alleges that prosecutorial misconduct occurred during the opening 

statement because the Assistant District Attorney misled the jury about the inferences it 

could draw from the evidence presented at the trial. The record reflects the following:

It will be obvious to you about what [the victim’s] disabilities are. 

What will be also, I believe, obvious to you is that [the victim] comes to 

you with no motivation whatsoever to tell you anything untrue. That even 

if she had such motivation, she couldn’t if she wanted to. Her abilities are 

not there. 

But she knows what happened to her in that bedroom that night, and 

she will tell you that. 

(Emphasis added).

Opening statements “are intended merely to inform the trial judge and jury, in a 

general way, of the nature of the case and to outline, generally, the facts each party 

intended to prove.” State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005). Opening 

statements are not evidence. State v. Thompson, 43 S.W.3d 516, 523 (Tenn. Crim. App. 

2000). Trial courts should allow the parties to present “a summary of the facts supportive 

of the respective theories of the case, only so long as those ‘facts are deemed likely to be 

supported by admissible evidence.’” State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012) 

(quoting Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010)). Therefore, 

opening statements should “be predicated on evidence introduced during the trial” and 

should never refer “to facts and circumstances which are not admissible in evidence.” 

Sexton, 368 S.W.3d at 415. 

The prosecutor’s statement regarding the victim’s inability to lie was improper. 

The State must only present facts during its opening statement that are likely to be proven 

by evidence during the trial. The court found the victim competent to testify, and no 

evidence was introduced at the trial suggesting that the victim was unable, due to her 
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intellectual disability, to testify falsely. The prosecutor’s statement was improper

because it is unprofessional conduct for the prosecutor to intentionally misstate the 

evidence or mislead the jury as to the inferences it could draw. See Goltz, 111 S.W.3d at 

6. We note that the trial court did not provide a curative instruction.

B. Closing Argument

The Defendant asserts that the prosecutor committed misconduct during closing 

argument by characterizing the Defendant as a “sexual predator,” by making 

unprofessional comments relative to the victim’s credibility, and by injecting issues 

broader than the guilt or innocence of the accused under the controlling law. The State 

responds that the Defendant has waived appellate review of this issue and that plain error 

relief is not warranted. 

Closing argument is “a valuable privilege that should not be unduly restricted.” 

Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see Bane, 57 S.W.3d at 425; State v. 

Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). However, closing argument “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; see State v. 

Jordan, 325 S.W.3d 1, 64 (Tenn. 2010). A trial court has significant discretion in 

controlling closing argument, and its decisions relative to the contents of an argument 

may only be reversed upon an abuse of discretion. Terry, 46 S.W.3d at 156; Cauthern, 

967 S.W.2d at 737; Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).

1. Sexual Predator Characterization

The Defendant asserts that the prosecutor improperly characterized the Defendant 

as a “sexual predator” and that this characterization inflamed the passions or prejudices 

of the jury. The Defendant asserts that the State’s “use of the term ‘sexual predator’ was 

[falsely] suggestive of the idea to the trial jurors that the Defendant[] had previously been 

adjudicated guilty of a predatory sexual offense.” The record reflects the following 

during the prosecutor’s closing argument: 

[The Defendant] wasn’t drunk out of his mind to the point where he 

didn’t know what he was doing. He went downstairs to bed. She came in 

there because she was complaining of pain and he took advantage he saw 

his opportunity. . . . That’s the opportunity a sexual predator looks for. 

(Emphasis added). On rebuttal, the State said:

What do we do with a sexual predator who knows or is smart 

enough to figure out how to work the system? What do we do? No 

eyewitness. No eyewitness. They’re very careful. He’s very careful. 
-10-

(Emphasis added). 

The State improperly characterized the Defendant as a sexual predator. Our 

criminal statutes do not define “sexual predator.” However, Merriam-Webster defines 

“predator” as someone who “injures or exploits others for personal gain or profit.” 

Predator, THE MERRIAM-WEBSTER DICTIONARY (New ed. 2018). “Sexual predator” is 

defined as “a person who has committed a sexually violent offense and especially one 

who is likely to commit more sexual offenses.” Sexual Predator, id. The fact that a 

sexual predator is likely to commit sexual offenses in the future calls upon the jury to find 

the Defendant guilty to prevent him from reoffending, which is an improper argument. 

See Goltz, 111 S.W.3d at 5 (“[A]rguments 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.”) (internal citations omitted). The record does not reflect that the 

Defendant has previous convictions for a crime of this nature, and the presentence report 

shows that the Defendant’s prior convictions are all misdemeanors. Such 

characterization likely inflamed the passion and prejudice of the jury. See Cauthern, 967 

S.W.2d at 737; see Keen, 926 S.W.2d 727. We conclude that these statements were 

improper and constituted prosecutorial misconduct. We note that the trial court did not

provide a curative instruction. 

2. Comments Relative to the Credibility of the Victim 

The Defendant asserts that the prosecutor made improper comments regarding the 

credibility of the victim. The Defendant asserts that the prosecutor committed 

misconduct by calling the victim a “hero” and by stating repeatedly that the victim did 

not have the mental capacity to lie. The record reflects that the prosecutor made the 

following arguments relative to this issue: 

I told you yesterday this would not be a technical and scientific case. 

This is a case that’s going to turn on your perception, and your observation, 

and your questioning and finding credible [the victim]. 

[The victim] has quickly become a hero of mine. She was one of the 

bravest little girls I’ve ever seen come into this courtroom, take this witness 

stand in front of strangers, and talk about some of the most intimate things 

that none of [us] would talk about in the light of day. 

. . . 

I suggest to you, she probably doesn’t have the ability to come in 

this room and tell you anything but the truth. She is innocent. She – she 

has no motivation. There was no motivation shown to you for anything 

other than telling the truth. 
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. . . 

In general, does the witness have any special reason to tell the truth 

or any special reason lie? Again, I don’t know that this witness has the 

ability to come in here and lie to you. She’s exhibited and there’s no 

evidence before you of any reason whatsoever for her to make this up or 

fabricated this against her uncle. 

(Emphasis added). On rebuttal, the State said: 

[The victim] woke up the next morning and on the way out the door 

to church to sing in the choir she said, “No, this stops right here, right now. 

He’s not going to get away with it. I’m telling somebody what happened.” 

Like I said, she’s become my hero. She’s a brave little girl to do that 

with this big man downstairs still in the bed, still in the house. But she 

said, “No. It’s not going to happen. This is wrong.” 

(Emphasis added).

The prosecutor stated several improper personal opinions as to the truth of the 

victim’s testimony. See Thornton, 10 S.W.3d at 235; Lackey, 578 S.W.2d at 107. 

Vouching for a witness’s credibility occurs when a prosecutor expresses personal opinion 

that a witness is telling the truth. See, e.g., Sexton, 368 S.W.3d at 419-20; Goltz, 111 

S.W.3d at 6-7. The prosecutor stated, “[T]his is a case that’s going to turn on your 

perception, and your observation, and your questioning and finding credible [the victim] . 

. . [the victim] has quickly become a hero of mine. . . .” The prosecutor again described 

the victim as her “hero” during rebuttal argument. The prosecutor impermissibly 

vouched for the victim’s general character by describing the victim as her “hero.” Our 

supreme court has repeatedly condemned a prosecutor’s expression of personal belief in 

the truth or falsity of evidence. See, e.g., Sexton, 368 S.W.3d at 420. 

The prosecutor also made several comments relative to the victim’s inability to lie. 

The victim was examined under oath by the trial court to ensure that she was competent 

to testify. The record reflects that both the State and trial counsel had the opportunity to 

question the victim regarding her perception of reality and her understanding of the 

difference between the truth and a lie. After her examination was completed, the court 

stated, “The Court makes the finding that [the victim] understands the oath. She qualifies 

as a witness under the law. And the Court will allow her to testify, finding that she 

understands the difference between the truth and a lie.” 
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The prosecutor’s arguments that the victim did not have the ability to lie were

improper. The trial court explicitly found that the victim understood the difference 

between the truth and a lie. The victim made several statements during the examination

that she understood that she had to tell the truth while under oath and testified during 

cross-examination that she understood the difference between the truth and a lie. The 

prosecutor misstated the evidence and made several personal comments relative to the 

credibility of the victim. See Goltz, 111 S.W.3d at 6. Furthermore, no evidence or 

testimony reflected that the victim was incapable of lying. We also note that the 

improper arguments the prosecutor made during her rebuttal argument were not in 

response to trial counsel’s closing argument. The prosecutor’s arguments that the victim 

was incapable of lying were improper, and the trial court did not provide a curative 

instruction.

3. Broader Issue than Guilt or Innocence

The Defendant’s final contention is that one of the State’s remarks diverted the 

jury from its duty by interjecting issues broader than guilt or innocence of the accused. 

The record reflects that the prosecutor made the following argument: 

If we do not give credence to the voice of [the victim] and to her 

account of what happened there that night, I’m afraid we declare open[]

season on children of this type, on the vulnerable of our society. 

The prosecutor’s argument implied to the jury that if it found the Defendant not

guilty, other mentally incapacitated individuals and children would be at risk. Our 

supreme court has been clear that it is improper to argue such issues during closing 

argument. See Cauthern, 967 S.W.2d at 737; Keen, 926 S.W.2d at 736; Goltz, 111 

S.W.3d at 6. We conclude that the prosecutor’s argument was improper. We note that 

the trial court did not provide a curative instruction. 

The Defendant has established the presence of all five Adkisson factors for plain 

error relief. Adkisson, 899 S.W.2d at 641-42. The record clearly established what 

occurred during the trial and includes the transcript of the State’s opening statement and 

closing argument. See id. The Defendant has shown that a clear and unequivocal rule of 

law has been breached. See id. The prosecutor in this case improperly characterized the

Defendant as a “sexual predator” multiple times during her closing argument. Our 

supreme court has held that it is improper to use arguments calculated to inflame the 

passions and prejudices of the jury. See Goltz, 111 S.W.3d at 6; Cauthern, 967 S.W.2d at 

737; Stephenson, 878 S.W.2d at 541. Furthermore, the prosecutor improperly vouched 

for the victim’s credibility by calling the victim her “hero” and argued multiple times to 

the jury that the victim did not have the ability to lie. Our supreme court has been clear 

that it is improper to express personal opinions as to the truth of any testimony. See 

Goltz, 111 S.W.3d at 6; Thornton, 10 S.W.3d at 235; Lackey, 578 S.W.2d at 107. 
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Finally, the prosecutor improperly interjected issues broader than the guilt or innocence 

of the Defendant by arguing that failing to convict the Defendant may lead to similar 

offenses against other mentally incapacitated individuals or children. See Goltz, 111 

S.W.3d at 6; Cauthern, 967 S.W.2d at 737; Keen, 926 S.W.2d 727. The Defendant had a 

right to a fair trial, and the prosecutor’s improper arguments, taken in the aggregate,

adversely affected such right. Adkisson, 899 S.W.2d at 641-42. 

The record does not reflect that the Defendant failed to object during the 

prosecutor’s closing argument for a tactical purpose, and we note that neither party 

asserts such argument. See id. Finally, plain error relief is “necessary to do substantial 

justice.” See id. As the prosecutor stated, no eyewitnesses observed this incident 

between the Defendant and the victim. The Defendant denied having any sexual contact 

with the victim in his police statement. The only evidence contrary to the Defendant’s 

statement is the victim’s testimony, and the outcome of the case hinged on the victim’s 

credibility. We conclude that the State’s improper arguments, especially regarding the 

credibility of the victim, probably changed the outcome of the trial to the prejudice of the 

Defendant. See id. at 642. The Defendant has established that he is entitled to a new trial

as a matter of plain error. 

In consideration of the foregoing and the record as a whole, we reverse the 

judgment of the trial court and remand for a new trial.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE