1 It is the policy of this court to withhold the identities of minor victims o f sex crimes.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs O ctober 29, 2002
STATE OF TENN ESSEE v. CHAD C RABTREE
Appeal from the Criminal Court for Hamilton County No. 23446 Stephen M. Bevil, Judge

No. E2001-02374-CCA-R3-CD January 31, 2003

The defendant, Chad Crabtree, was convicted of thre e counts o f rape o f a child , Class A f elonies. The trial court imposed concurrent twenty-five- year se

ntences. In thi s appeal , the def endant a sserts (1) that the trial court erred by denying his access to certain records reg arding the victim and the lead investigator; (2) that the evidence was insufficient to support one of his convictions; (3) that the trial court wa s n ot im pa rt ia l; (4 ) t ha t a wi tn es s f or th e s ta te im pr op er ly b ol st er ed th e c re di bi li ty o f the victim; and (5) that the sentence was excessive. The judgments of the trial court are affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

G ARY R. W ADE , P.J., deliv ered t he opinion of the court, in which J OE G. R ILEY and R OBER T W. W EDEMEYER , JJ., joined.

Donna Robinson Miller (o n appeal) a nd My rlene Ma rsa (at t rial), A ssistant D istrict Pub lic Defenders, for the appellant, Chad Crabtree.
Paul G. Summers, Attor ney Gen eral & Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; and Yolanda Mitchell and Barry A. Steelman, Assistant District Attorneys Gene ral, for the appellee, the State of Tennessee.
OPINION

In December of 1999, the five-y ear-old female victim, A.D. , 1 lived with her mother, Kimberly Williams, her younger br other, and the defendant, who was her mother' s boyfriend. The defendant often ca red for the victim

and her b rother w hile their mother worked third shift at a local convenience market. On an evening when the victim's mother wa s at work, the defendant told the victim to put her mouth "on his private," which she described a s "fat" and "soft." A t trial, the victim testified that

green and yellow "s tuff" c ame out of the defendant’s penis. She recalled that she had to get a drink because the substance had a bad taste. Thevictim also testified that the defendant put-2-

his tongue "on her private" and "lick[ed] it." She remembered that on a different occ asion, the defendant directed her to insert a toy bowling pin into his anus. The victim remembered that when the defendant asked her to perform the sex acts, he was watching a videota pe which depicte d him engaging in similar sexual activities with her mother.

On December 11, 1999, Detective Jani ce A tkinson of the Chattanooga Police Department
was informed by Child Protective Service s that the victim had been sexually abused. The detective learned from an interview with the victim that the defendant had touched her vaginal are a with his hands and tongue and had placed his penis in her mouth. Medical

testing establish ed that the victim had a gonorrhea infection in her mouth.

The defendant admitted to Detective Atkinson that he had fondled the victim in a sexual manner, claiming that the victim had asked if she could perform a se x act on him and he allowed her to touch his "p rivat es." Th e defen dant a cknow ledged that h is pen is mad e cont act wi th th e vict im's face and the area

around her lips. The defendant also admitted that on a second occasion, he asked the victim touse petroleum jelly and to "put her

hands on [his] privates." He acknowledged that he ejaculated on the second occasion. Kimberly Williams, the victim's mother, testified that she began dating the defendant

when the victim wa s approxima tely six weeks ol d and move d in with him a short tim

e later. Ms. Williams stated that at the time of the offense s, the def endant w as respo nsible fo r the ca re of the victim whil e she worked third shift at a convenience store. She admitted that she made a pornographic videotape withthe defe

ndant. Ms. Williams testified that when she first learned of the victim's allegations of sexual abuse, she assumed that her stepfather, who had touched he r in a sexual manner a

t a young age, was the perpetrator

. Gary Wilbanks, K

imberly Wil liams’ uncle, testified that, during this time period, the defendant had aske d him f

or antibiotics to "get rid of an infection." Ac cording to Wilbanks, the de fendant explained that he thought he might have an infection beca use Ms. Williams had be e n dating other me

n. Wilbankstestifie d that he g ave the d efenda nt a bottle of Augmentin, which had been given to Wilbanks for the treatment of a sinus infection. Mary Katherine Spada, a pediatric nurse pra ctitioner, performed a phy sical examination of the victim as part of her duties at the Children's Advocacy Center. Ms. Spada stated that she interviewed the victim

before conducting the phy sical examination and that the victim related that "she said ou[ch] to Chad but he would not stop, because it hurt. . . . [H]e put his thing down there.

. . . [H]e lick it all the way down there and he done it about five or four times." The victim also told Ms. Spada

that afte r being with the de

fendant she would

get a r ash that " was a re d rash

with some white and it burned and scratched too." Acc ording to Ms. Spada, the phy sical examination of the victim was inconclusive for sexual abuse; however, testing established the presence of g onorrhea,
a sexually transmitted disease, in the victim'sthroat. M s. Spada te stified th at gono rrhea w ould

cause painful urination

and a y ellow or g

reen " drainag e" fro m the p enis of an infected male. She stated that a gonorrhea infection could be tre ated by the use of the antibiotic Augmentin.-3-

Dr. Mark Anderson, a witness for t he defense, testified that most strains of gonorrhea a re resistant to penicillin-basedantibiotics, like Augmentin. It was his opinion that it was very unlikely that the defendant could have successfully treated a gonorrhea infection by taking A ugmentin.

Delilah Crabtree, the defendant's mother, te stified that the victim's maternal grandmother, who reported the abuse, harbored ill will toward the defendant. Ms. Crabtree also testified that the victim and the de

fendant had a ve ry loving r elationsh ip and th at the d efendant had alway s treated the victim

as his own

child. She

stated tha

t the victim never e

xpressed f

ear of t he defe ndant.

The defendant

testifie d that he l oved the v ictim as hi s own child

and adamantly de

nied any sexual contact with her. He claimed that after learning that the victim 's mothe

r had bee n sexually abusedby her stepfa

ther, he became concerne d that the victim might also be abused. The defendant also claimed that

he confe ssed only

because Detective Atkinson threatened him with violence and deniedhim the right to consult an attorney . He contended that he told the detective what she wanted to hear so that she would let him go.

I The defendant first asserts that the trial court erred by

refusing to require

the state to produce the notes taken by De

tective Atkinson during her interview with the victim and by prevent ing acc ess to juvenile court records concerning the victim and her mother. The state argues tha t disclosure of the information was not required.

In Brady v. Maryland , 373 U.S. 83, 87 (1963) , the United States Sup reme Cour

t held tha t, in a criminal case, the prosecu tion has a compelling duty to fur

nish the accused with exculpatory evidence pertaining either to the accused’s guilt or innocence or to the pote ntial punishment that may be imposed. Exculpatory evidence unde r Brady includes info rmation or statements of witnesses which are favorable to the accuse d. See, e .g. , State v. Goodman , 643 S.W.2d 375, 379-80 (Tenn. Crim. App. 1982). Moreover, exculpatory evidence under Brady

in cludes information which can be used only

for impeachment purposes. See Giglio v. United States , 405 U.S. 150, 154-55 (1972); Workman v. State , 868 S.W .2d 705, 50 9 (Tenn. Cri m. App. 199 3). Fa ilure to reve al exculpatory evidence violates due process where the eviden ce is mate rial eith er to gu ilt or to pun

ishment, irrespective of the good faith or bad faith of the pros ecution. Brady , 373 U.S. a t 87. I n order t o determine the mater

iality of undisclosed information, the reviewing cour t must asce

rtain whe ther "in [the] absence [of

the infor mation] [the d

efenda nt] recei ved a fa

ir trial, understo od as a

trial resulting in a verdict worthy

of confidence." Kyles v. Whitley , 514 U.S. 4 19 (1995) ; see also State v. Ed gin , 902 S.W.2d 387, 390 (Tenn. 1995). Thus, in order to prove a Brady violation, a defendant must show that "the favorable evidence c ould reasonably be taken to put the whole case in such a different light as to u ndermine con fidence in th e verdict." Edgin , 90 S.W.2d at 390.

Before a reviewing cou

rt m ay find a due

process violation under Brady , four prerequisites must be satisfied:-4-

(1) The def

endant mu st have r

equeste d the info

rmation ( unless the

evidenc e is
o bviously exculpatory, in which case the State is bound to release the i nformati o n whether requested or not); (2) the State must have suppressed the information; (3) the information must have been favorable to the ac cused; and (4) the in formatio n must have

been mat erial.

Id. The defendant bears the burden of de monstrating th e e le me nt s o f t hi s c la im by a preponderance of the evidence. See Smith v. State , 757 S.W.2d 14, 19 (Tenn. Crim. App. 1988). "The Brady rule does not requi

re a pro secuto r t o deliver his entire

file to defense c ounsel, bu t only to disclose evidence favora

ble to the accuse d that, if s uppresse d, would de prive him o f a fair trial." State v. Walker , 910 S.W.2d 381, 389 (Tenn. 1995).
Here, the defe

ndant re quested t

he infor mation an d the state

refused to provide it. Thus, the first two prerequisites were met. As to the l ast two criteri a, howev er, the d efenda nt has fa iled to allege or establish that the documents, which were filed under seal, are either exculpatory or materia l. After an examination of the content of the documents, it is our concl us ion that the information is neither

exculpato

ry nor rele vant. Und

er these circumst ances, t he state ’s failur

e to disclose the documents does not qualify a s a violation of Brady v. Maryland

. II As his next issue, the defendant contends that the evidence is insufficient to sup port hi s conviction on the cou

nt alleg ing that

he placed his mouth on the vic tim's va gina. H e specif ically asserts that the evidence was insufficient to establish penetra tion.

On appeal the state is en titled to the strong est leg itimate vie w of the e

vidence and all
reasona ble inferences which might be d rawn theref

rom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to b e given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrg e v. State , 575 S.W.2d 292, 2 95 (Tenn. C rim. App. 1 978). When the suff iciency of the ev idence i s challenged, the relevant questionis whether , after reviewing the e

vidence in the lig ht most fav orable to the state, any rational trie r of fact could have found the essential eleme nts of the crime bey ond a reasona ble doubt. Te

nn. R. App. P. 1 3(e); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesses, the weight and value of the evidenc e, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 85 6, 859 (19 56). Be cause a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally

insufficient to sustain a guilty ve rdict. Statev. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Rape of a child, a Cl ass A fel ony , is defin ed as follows:-5- Rape of a child is the unlawful sexual penetration of a victim by the defendant or the defendant by

a victim, if such victim is less than thirteen (13) ye ars of age. Tenn. Cod

e Ann. § 39 -13-522( a). Sexual penetra tion is def

ined as:

sexual intercourse, cunnilingus, fellatio, anal intercourse , or any other intrusion, however slight , of any par

t of a person's body

or of any object

into the genital or anal openi ngs of

the victim's, the defendant's, or any other person's body , but emission of semen is not required.

Tenn. Code Ann. § 39-13-501(7) (emphasis added). Cunnilingus, "' a sexual activity involving oral contact with the fem ale geni tals, '" does not r equire t hat the mouth or tong

ue actua lly p enetra

te into the vagina. St at e v . H oyt , 928 S .W.2 d 935, 942 (T enn. C rim. A pp. 19 95) (q uoti ng State v. Karl E. Vander bilt , No. 70 (Tenn. Crim. App., at Jackson, A

pr. 8, 199 2)); see also Statev. Chesle y Ra ndell Thompson , No. 03C01- 9807-CC-0 0238 (Te nn. Crim. A

pp., at Kn oxville, Ma

rch 24, 1999) ; State
v. Bruce Allan Rudd , No. 03C01-9707-CR-00307 (Tenn. Crim. App., at Knoxville, Oct. 6, 1998); Statev. Michael Warren Evans , No. 02C01-9306-CC-00124 (Tenn. Crim. App., at Jackson, Mar. 2, 1994). While touching the vagina alone may not constitute penetration, licking does. See State
v. Reginald L. Parker , No. 02C01-9306-CR-00130 (Tenn. Crim. App., at Jackson, Dec. 28, 1994). Here, the five-y

ear-old victim testified that the defendant licked her vagina. In a

ddition to accrediting the testimony of the victim, the jury rejected the claims of the defendant. That was their prerogative. Becau se a rat ional trie r of fac t could ha

ve found the esse ntial e lements of the crime, the evidence was legally

sufficient to support the conviction. See Jackson v. V irginia , 443 U.S. 307 (1979).

III The defendant next contends that remarks made by the trial judge duri ng voir di re demonstratedprejudice against him. Because the defendant failed to raise this issue in a motion for
new trial, the issue has been waived as a basis f or relief on appeal. See Tenn. R. App. P. 3(e). Further , had the i ssue bee n proper ly p reserv ed, the de

fendant would not p

revail o n the mer

its. "A trial judge should be very careful and not

give expression to any thoug ht thatwould be calculated

to lead the jury to infer that his opinion was in favor or against the defendant

in a criminal trial." Brooks v . State , 187 Tenn. 67, 213 S.W.2d 7, 10 (1948) . If t he inter jections a nd commen

ts of a trial judge clearly

violate the mandate of impartiality , they may infring e upon a defendant's right to a fair trial. State v. Caughron , 855 S.W.2d 526, 536-537 (Tenn. 1993). "The issue t o b e determinedis not the propriety of the judicial conduct of the trial judge, but whether he committed an error which resulted in an unjust disposition of the case." State v. Baker , 785 S.W.2d 132, 135 (Tenn. Crim. App. 1989).
Here, the defendant complains that the trial court's rema rk during jury

vo ir dire that the offense of rape of a child was a horrible and te rrible o ffense pre

judiced the jury ag ainst him and-6-

deniedhim the rig

ht to a fa ir trial. At the beginning of voir dire, the trial judge made the following remark s: Now, you hear th is cha rge and you' re thinking to your selves, how horrible, because it's a horrible offense. I

don't think any of us w ould disagreethat this is not a ter rible offense. But you ca

n't base y our verdict on whether or not this is a horrible offense. You'reto base your ve

rdict on whether or

not the evidence that will be present ed to you in this case, andthe law that the court will instruct you, proves to y ou beyond a
reasona ble doubt that Mr. C rabt ree com mitted this horrible o ffense . Beca use just bec ause he's be en char

ged doe sn't mea

n he's g uilty and y ou canno t draw an y in fe re nc es fr om th e f ac t h e' s b ee n i nd ic te d b y th e g ra nd ju ry.
When viewe d in co ntex t of th e tria l cour t's entire c ommentar y, it is our view that the

comments d

id notinfringe upon the defendant's r ight to a fair trial. The

trial judge merely

directed the jury

to base its ve r dict on the evidence and not upon passion or caprice. I n consequence, the defendant is not entitled to relief on this issue.

IV As his next issue, the defendant complains that Detective Atk inson impro

perly bolstered the credibi lity

of the victim when she commented that she did not believethe defendant's initial denial of sexual contact with the victim. Because the defend ant failed to make a contemporaneous objection to this evide nce and did not present the issue in a motion for new trial, the doctrine of waiver again applies. See

Tenn. R. App. P. 3 (e), 36(a). Moreover, even if the issue had been properly pre sented, the defendant would not be entitled to relief.

The record establishes that during cross-examination, defense counsel repeatedly

asked Detect iv e Atkinson whether she believed the defendant’s initial statement, wher ein he denied having sexual contact with the victim. When pressed on why she did notinitially believe the defe ndant, the detective responded that she did not bel

i eve the defendant because of his demeanor dur ing the interrog atio n and b ecause of contradictions with the account of the victim. She furthe r explained that the defe ndant' s body

langua ge and his attempts t

o evade her ques tions also

led her to believe that he lacked candor. On

redirect examination, the detective testified that she continued to int

errog ate the defendant, despite his initial denial, because she "did not fee l that Mr. Crabtree was being honest."

While opinion ev

idence s hould ge

nerally be exclu ded, se e Tenn. R. E vid. 702, d

efense counsel elicited this testimony during cross-e xamination. Detective Atkinson’s testimony was less
an attempt to

bolster the victi m’s st ateme nt th an it w as an at tempt to ex plain the de tecti ve's persistence in que stio ning t he defendant after he had initially denied any w

rongdoing. No contemporaneous objection was made to the detective’s answers to the que st io ns . G en er al ly, appella te relief will not be granted “to a party re sponsible for an error or who failed to take wha tever action was reasonably

necessary

to prevent or nullify the ha rmful effect

of an error.” Tenn. R. App.-7-

P. 36(a); see State v. Gregory , 862 S.W.2d 574, 578 (Tenn. Crim. App. 19 93). In our view, the defendant is not entitled to relief on this issue.

V As his final issue, the defendant contends that his sentence is excessive because the trial court failedto give appropriate weight to two mitigating factors. When there i s a chal lenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with
a presumption that the determinations made by the trial court a re correct. Tenn. Code Ann. § 40-35- 401(d). This presumption is "conditioned upon the affirmative showing in the rec ord that the trial court considered the sentencing principles and all relevant facts and circumst ances." State v. Ashby , 823 S.W.2d 166, 1 69 (Tenn . 1991); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). "I f the trial court ap

plie s in appropriate factors or otherwise fa ils to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments pro vide tha t the burden is on the defendant to show the improprie ty o f the sen

tence. Tenn. Code

Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our review requires an

analysis of (1) the

evidence, if any , received at the trial and sentencing hearin g; (2) the presentence report; (3) the principles of sentenc ing and the arguments of counsel relative to sentencing alternatives; (4) the nature and chara cteristics of the offense; (5) any mitig ating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. Tenn. Cod e Ann . §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calculating the sentence for a Class A felony conviction, the pre sumptive sentence is the midpoint within the range if there are no enh ancement or mitigating factors. Te nn. Code Ann. § 40-35-210(c). If

there are enhancement factors but no mitigating factors, the trial court shall set the sentence at or above the midpoint. Te n n. Code Ann. § 40-35-210(d). If the re are mitigating factors but no enhancement factors, the trial court shall set the sentenc e at or b elow the m

idpoint. Id. A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the e nhance me nt facto rs as a means of increasing the sentenc e. Tenn. Code Ann. § 40-35-210(e). The sente

nce must th

en be re duced within the ra nge by any weight assi gned to t he mitigating factors present. Id.

In arriving

at the defendant ’s sente

nce, the trial cou rt a pplied the following enhancement factor s: (1) The def

endant ha s a

previous history of cr

iminal convictions or

criminal behavior in addition to those necessary to establish the appropriate range; (4) The victim of the offense was particular ly vulnerable because of age; (7) The offe

nse involv ed a vict

imand was committed to gratify the defendant's desire for plea sure or e

xcitement; (8) The def

endant ha s a previ ous histor y of unwillin gness to co mply with the conditions of a sentence involving release in the community ; and-8-

(15) The defenda nt abused a position

of priva te trust.
See Tenn. Code Ann. § 40-35-114(1), (4), (7), (8), and (15) (1997). In mitiga tion, the trial court applied t he follow ing fac

tors: (1) The defendant's conduct ne it he r c au se d n or th re at en ed se ri ou s b od il y in ju ry; and (13) The def

endant ha s strong

family support a nd employ

able skill s; the defendant voluntar ily surrend ered to a uthoritie s; and the

defenda nt partic ipated in

disciples hip training and anger mana

gement counseling while incarc erated.

See Tenn. Code Ann. § 40-35-113(1), (13) ("[a]ny other factor consistent with the purposes of this chapter") (1997). The trial court determined that the enhance ment fac tors g reatly outweig hed the mitigating fa ctors and i mposed the maximum sentence of twenty-f ive year s for each count. The
se nt en ce s w er e o rd er ed to be se rv ed co nc ur re nt ly.

The defenda

nt contends that the trial court should have f

ound as mit

igating factor s his potential for rehabilitation and history of mental problems. The trial court, noting the defendant’s refusal to accept responsibility and f ailure to express remorse, determined that thedefendant lacked the potential for rehabilitation. It also concluded tha t the defendant

failed to prove that

any mental disorder from whic

h he was s uffering would h ave red uced his c ulpability for the o ffense s.
At the sentencing hearing, Dr. Keith A. Caruso, a psyc

hiatrist, testified that the defendant was suffering from dysthy

mic disorder, w hich Dr. Ca ruso described as "a chronic for m of depression that's manif ested b[y] fee lings of de pression more day s than not for a period of greater than two ye ars, acc ompanied by sym ptoms like hopeless ness, distur bance in appetite , insomnia , problem s with concentrationand low self-esteem." I t was Dr. Caruso's opinion that the disorder, coupled with the fact that the defe ndant was an "i ncest offender " r ather than a pe dophile, made it unlikely that he would commit similar crimes in the future. Dr. Caruso acknowledge d that the defendant’s mental problems would not h ave led h im to sexuall

y a busethe victim

. The defendant read a statement at the sentencing hearing whe rein he expressed no remorse, proclaimed his innocence, and re marked that he was not angry

with the prosecutor. In our view, the rec ord supports the findings of the trial court. Accordingly , the judgments of the trial court are affir med.

___________________________________ GARY R. WADE, PRESIDING JUDGE