09/01/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 23, 2017 at Knoxville

STATE OF TENNESSEE v. ANGELA MONTGOMERY

Appeal from the Circuit Court for Rutherford County

No. F-69052 Royce Taylor, Judge

No. M2016-00459-CCA-R3-CD 

The Defendant, Angela Montgomery, appeals as of right from her convictions for six 

counts of rape of a child. The Defendant argues (1) that there was insufficient evidence 

to support her convictions; (2) that the trial court erred in allowing the State to present 

evidence that the Defendant used corporal punishment to discipline her children; and (3) 

that the trial court erred in allowing the prosecutor to introduce a witness’s prior 

inconsistent statements. Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gerald L. Melden, District Public Defender; and Sean G. Williams and Jeffrey Burton, 

Assistant Public Defenders, for the appellant, Angela Montgomery.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant 

Attorney General; Jennings H. Jones, District Attorney General; and Hugh Ammerman

and Sarah Davis, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

OPINION

FACTUAL BACKGROUND
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The Rutherford County Grand Jury indicted the Defendant for six counts of rape 

of a child, involving the victim, A.W.

1

 See Tenn. Code Ann. § 39-13-522(a) (2003). A 

jury trial began on March 10, 2015. 

Jury Trial

At the outset of the trial, a jury-out hearing was held to determine the admissibility 

of evidence that the Defendant used corporal punishment as a means to discipline the 

victim and his three siblings. The State sought to enter such evidence at trial “to show 

the effect that it had on [the victim] and his acquiescence with [the Defendant’s] actions.” 

Counsel for the Defendant responded that there was no correlation between corporal 

punishment, or “acts of discipline involving physical force[,]” and the Defendant’s 

charge of raping her son. 

As an offer of proof, the victim testified that between the years of 1999 and 2002, 

his mother would use “either a switch or a wooden spoon” to spank the victim and his 

siblings. He explained that she used such punishment techniques “when [the children] 

weren’t cooperating in whatever [the Defendant] really wanted them to be doing” or 

when the victim or his siblings “directly defied her.” The victim stated that the 

Defendant would use a wooden spoon or switch to hit the disobeying child “anywhere 

from the calf up to the buttock area to the lower back.” He explained that the Defendant 

“would hit [the children] until she felt that [they] had learned [their] lesson for whatever 

the infraction” was. The victim confirmed that the Defendant hit them in such a way as 

to leave marks on their bodies. 

When asked what impact he believed his mother’s use of corporal punishment had 

on his personal behavior, he responded,

Well, I learned pretty quick that if I didn’t do what she said[, then] I was 

going to get a pretty substantial switching or a spanking with the wooden 

spoon. I mean, she quoted over and over again, spare the rod, spoil the 

child. And stated that she was a strict parent. And that was how she 

brought us up. And that’s what you are supposed to do is to show your 

children that they do not defy you.

 

1

It is the policy of this court to protect the identity of minor victims. Therefore, we will use initials for 

each minor involved in this case. In furtherance of this policy, we will also use initials for relatives and 

family members of the victim. Furthermore, both the victim and the victim’s younger sibling share the 

initials “A.W.” For purposes of clarity, throughout the remainder of the opinion, we will refer to victim 

A.W. as “the victim” and the younger sibling as “A.W.” 
-3-

The prosecution asked the victim if he was scared of the Defendant, and he replied, 

“Yes.” The victim also confirmed that “there was no doubt that [the Defendant] ruled 

that household.” 

After hearing arguments from the State and the Defendant and observing the offer 

of proof, the trial court allowed the State to introduce evidence that the Defendant used 

corporal punishment on the victim and his siblings. The trial court reasoned as follows:

Well, I think from the standpoint of looking at the proof that was just 

presented, this matter is relevant probably under 401 simply to show the 

nature of the relationship between the parent and the child.

I think that’s important. If it falls under 404(b), I think it has to be 

offered to show a complete story of what’s going on in the household. And 

it would be appropriate to allow that in under those circumstances. So I’m 

going to allow the proof to come in.

The jury returned to the courtroom, and the following testimony was presented. 

The victim testified that he was born in 1989, and that he turned thirteen years old in 

2002. He stated that the Defendant was his biological mother and that he had three 

younger siblings: M.W., J.W., and A.W. He explained that his parents were divorced in 

1996 and that during the period of 1999 to 2002, he lived with the Defendant “every 

other weekend[,]” and then he would split time between his parents for “any kind of like 

school holiday.” 

The victim described the first time that the Defendant “did sexually inappropriate 

things with [him].” The victim explained that he had brought home a permission slip 

from school regarding a sexual education class. He stated that when the Defendant saw 

the permission slip, she said, “[T]his isn’t something you need to learn at school, . . . this 

is something that would be better learned at home with me.” The victim testified that he 

said he thought his father should sign the permission slip, but the Defendant told him 

“that it didn’t matter. That she was still [the victim’s] parent. And that she would teach 

[him] about the sexual education that [the victim] needed to know.” 

The victim testified that that night, after his three younger siblings had been put to 

bed, the Defendant “sat [the victim] down on the love seat in the living room” of their 

home. He said that the Defendant told him “that this [was] something that everybody 

ends up learning as you . . . grow into an adult” and that she removed her clothing and 

showed the victim “her vagina and genital area.” When asked to describe the incident in 

further detail, the victim said,
-4-

She spread her legs and then began to spread her labia open and 

started to point out her vagina and what that would be used for in sex and 

reproduction. And that’s where the baby comes from. And, you know, 

that’s kind of where the action is when you are having sex.

. . . .

She asked me if I wanted to touch her. And I stated that I did not. 

And then she went ahead and took her top off and showed me her breasts 

and talked about how they were involved in what’s called foreplay and . . . 

during intercourse. And how that they were where the baby breast feeds. 

And that [was] the role they would play as far as actually having a child 

and feeding it.

The victim asserted that during this incident, the Defendant did not touch him and that he 

did not touch the Defendant. The victim stated that at the conclusion of this incident, he 

told the Defendant that he did not think he was ready for “that much in graphic detail.”

Regarding sleeping arrangements in the Defendant’s home, the victim testified 

that M.W. and J.W. shared bunk beds in one room upstairs and that “sometimes [A.W.]

would sleep in the bed with [the Defendant] or sometimes [the victim] would sleep in the 

bed with [the Defendant].” The victim said that when he was not sleeping in the same 

bed as the Defendant, he slept in the bunk beds with M.W. and J.W. The victim 

explained that both the bedrooms were on the upstairs level of the Defendant’s home. 

The victim recalled that the next “sexual contact” with the Defendant occurred the 

night after the first incident. He detailed the encounter as follows:

When I was coming out of the shower, I was walking into the room 

that she slept in because I had some drawers there where I kept my t-shirts 

and underwear and shorts and stuff. Kind of like pajama clothes and a few 

shirts and everything. 

And I had my towel on. And I was getting my pajamas out. And 

she came into the room and proceeded to tell me that I was going to be 

starting puberty soon.

And I was starting to put my t-shirt on and was going to – I was like, 

okay, well, you know, that’s, I guess, good information to know. And 

before I could put my shorts on, she took my towel off and started to handle 

my genitals and show me that my testicles would get bigger and my penis 
-5-

would get bigger. And that I would start to grow pubic hair around that 

area. And started to stroke my penis to the point that I reached an erection.

The victim said that after he reached an erection, the Defendant told him “that’s what you 

have to do with a penis before it’s ready for sex.” The victim testified that the Defendant

continued “to stroke” his penis, and he told her “that [he] wasn’t really comfortable with 

that.” The victim said that the Defendant told him “that’s part of growing up . . . . You 

get comfortable with sexual contact.”

The victim stated that the next sexual episode occurred on his “next visitation” 

with the Defendant, approximately two weeks later. He stated,

That time I was coming out of the shower. And [the Defendant] 

pretty much did the same thing but continued stroking me a lot longer on 

my penis with an erection. And explaining that that’s a natural part of sex 

is the foreplay. And, you know, to get your partner aroused and everything. 

And, you know, that that’s something you get more comfortable with the 

more you do it.

. . . .

On that incident, I believe I – that was the first time that she actually 

made me climax, which at the time was completely new to me. I had never 

experienced that before. The only time that I really was using my genitals 

was to go to the bathroom. I had never experienced that.

And it felt kind of like an electric sensation shooting through my

penis. And it kind of really freaked me out because I didn’t know what it 

was. And she explained that that’s a climax. That’s what happens. That is 

the point of sex is to offer your partner pleasure and everything.

And after that happened, you know, my erection went down. And I 

put my clothes back on and went into the bathroom and tried to look at 

myself to make sure that, you know, nothing was wrong. Because I didn’t 

know if I had done something wrong and broken myself or something. And 

I kind of cleaned myself up[.]

The victim stated that another incident with the Defendant did not occur for the 

next “three or four months.” The victim described this encounter, recalling a time where 

he took his clothes into the bathroom, so that after showering, he could get dressed in the 

bathroom. The victim explained that he “figured if [he] was already dressed by the time 

[he] got out of the bathroom, then [he] wouldn’t have to go” into the Defendant’s 
-6-

bedroom and “be naked looking for [his] clothes.” He said that while he was in the 

shower, however, the Defendant came into the bathroom and removed his clothes from 

the room. He explained,

So, when I came into the bedroom to get some more pajamas or to 

find the ones that weren’t in [the bathroom], [the Defendant] proceeded to 

start to fondle my genitals again to the point where I got an erection. And 

said that – at this point, she was going to teach me about oral sex. And 

started to put my penis in her mouth. And sucked and stroked me to the 

point of climax.

The victim said that he ejaculated onto the carpet and then went back into the bathroom 

and cleaned himself. The State elected to use these factual allegations to support count 

one.

The victim described another episode in which the Defendant “perform[ed] oral 

sex” on him in the Defendant’s bedroom. He said, 

I started to climax again and kind of turned my head and was kind of 

expecting what was going to happen. And I looked over at – when I 

opened my eyes, I was looking towards the dresser and saw this C.D. case 

of Neil Diamond’s Greatest Hits. And was kind of trying to pull it together 

and everything. And went ahead and climaxed. And that was kind of that 

round for that night. 

The prosecutor asked the victim if he remembered what type of clothing the Defendant 

wore during these sexual encounters, and he said that “she usually just wore like a long tshirt to bed.” The State elected to use these factual allegations to support count two.

The State also asked the victim if he remembered any other times that the 

Defendant performed oral sex on him. The victim said,

Yeah. The oral sex kind of became the norm after she did that the 

first time. And during the course of that, she would take my hand and tell 

me that this is part of foreplay to get your partner excited for actual 

intercourse. And would take my hand and put it into her vagina and have 

me push my fingers in and out to satisfy whatever she was trying to get out 

of that.

And sometimes she would just make me do it on my own. And 

sometimes she would hold my wrist and continue the penetration herself.
-7-

When asked to describe the first incident in which this occurred, the victim 

responded, 

Well, at that point, [the Defendant] had already performed oral sex 

on me. And then said that I was ready to learn some more about sex. And 

had me get up on the bed with her. And she was [lying] back with her tshirt pulled up with her lower body exposed.

And [the Defendant] took my wrist and started to rub her vagina. 

And told me that you use these two fingers, the middle two or the index and 

the middle finger, to put that into the vagina and go back and forth to create 

friction.

Because [the Defendant] was saying that if you just stick it in, it’s 

kind of boring. It doesn’t really do anything. But if you go back and forth, 

that creates a lot better sensation for your partner.

. . . .

And [the Defendant] had me do that for several minutes until I 

assumed that she climaxed or at least felt that I had apparently learned 

enough to know how to do it. 

The State elected to use this allegation to support count three.

The victim described another sexual encounter with the Defendant that occurred at 

a different time than any of the previously discussed incidents. He explained,

There was a particular [incident] where she – she took – she was 

holding my penis and kind of put her arm around my side and – sorry.

She was starting to pull my penis into her vagina, and I really started 

freaking out and saying that I couldn’t handle that. I wasn’t ready for that. 

And it was too weird. It’s too much. And I freaked out. And she – I guess 

I made enough of a fuss that she let me stop.

The victim said that this particular encounter upset him a great deal because he “didn’t 

want to lose [his] virginity to his mom.” When asked if his penis was inside the 

Defendant “in any way, shape, or form[,]” the victim said, “[T]he tip of my penis started 

to press inside her vagina” and “that it went in between her inner labia.” The State 

elected to use this allegation to support count six.
-8-

The victim testified that he took strategic measures to avoid sexual encounters 

with the Defendant. For example, the victim began showering before his other siblings 

and getting dressed quickly while the Defendant was busy bathing the other children. He 

said that he would “go to bed in the other room” and “pretend to be asleep” so that 

“nothing would happen.” 

The victim testified that he remembered “separate and distinct” incidents where 

the Defendant “asked [him] to put [his] fingers inside of her vagina.” When asked to 

describe one such occurrence, the victim stated,

There was a particular night where [the Defendant] had me do it for 

longer than I usually would. And in the course of doing that, I noticed that 

there is a part that felt a lot rougher than the rest of the vagina. And as I 

touched that part, she said that that was a good place to touch it. 

. . . 

And I just continued to rub it for her. And she seemed to enjoy that 

more than just the regular in and out motion.

The State elected to use this allegation to support court four.

The victim described another incident involving digital penetration and said,

[T]here was a particular time where she was having me come on to 

the bed with her. And after I had got done digitally penetrating her, I 

thought it was kind of over. And then she proceeded to take my shorts off 

and perform oral sex on me after that.

When asked if he remembered any other specific incident regarding sex with the 

Defendant, the victim explained,

There was a particular time where she was performing oral sex on 

me that ended up leading to digital penetration. And that particular time, I 

didn’t climax. What had happened, [A.W.] had knocked on the door and 

asked for a drink of water. And [the Defendant] told [A.W.] that she would 

be out in a few minutes.

And once A.W. had interrupted us, [the Defendant] stopped 

performing oral sex on me and got me up on to the bed with her and had me 

digitally penetrate her until either she climaxed or she had just had her fill 
-9-

of it. And then proceeded to leave and take care of [A.W.] after she had 

sent her back to bed.

The State elected to use this encounter to support count five.

The victim testified that the incidents had occurred from approximately 1999 to 

2002. When asked how he was able to “pinpoint these instances” in that specific time 

frame, he said that the abuse continued on a regular basis when he visited her until the 

Defendant moved away. Furthermore, he recalled a time close to Easter when his father 

told him that “every [twelve-]year-old boy should have a duck and learn how to raise 

chickens.” The victim testified that his father took him to Tractor Supply to purchase 

“some ducks and some chicks” and that “playing around” with these animals “helped 

take [the victim’s] mind off of everything[.]” The victim said that purchasing the ducks 

occurred after the incident when the Defendant “tried to have penile, vaginal intercourse” 

with him. 

In addition to describing the sexual encounters with his mother, the victim 

described how the Defendant acted as a mother. He said that “other than the sex abuse 

and the times” that he “was angry at [the Defendant] for spanking [him], she was a great 

mom.” The victim testified that the Defendant was “a really good cook” and that she 

“had a good sense of humor.” He stated that she taught him and his siblings “good 

morals” and “tried to make sure that [they] had fun activities to do when she had time 

with [them].” 

The victim also testified in front of the jury that his mother used corporal 

punishment as a means to discipline the victim and his siblings. The victim explained 

that the Defendant would “spank” him using “a wooden spoon or a switch” from “time to 

time.” He said that the switch “was a thin piece of wood” that was “kind of like a 

conductor’s baton.” When asked to describe “how [the Defendant] ran the house” and 

her use of “corporal punishment,” the victim responded,

Well, she would say that she’s a strict parent. And that if you . . . 

spare the rod, you spoil the child. And, you know, if we didn’t do what she 

told us to do, you know, we were going to get a spanking for it. You were 

supposed to obey your elders and your parents and do what they tell you to. 

And if you don’t, then you get spanked for it.

The victim agreed that there was “no question in [his] mind that if [he] disobeyed [the 

Defendant] in her house, [he] was going to get spanked for it.” The victim testified that 

he feared getting spanked and that he was especially fearful of such disciplinary action 

“during the times that it was sexual[.]” He said,
-10-

I knew that if this [was] what she [wanted] to do [at night], there 

[was] not really anything I c[ould] do about it without getting spanked and 

then having to go through it anyway. So, what [was] the point. It would 

just make things even worse than they already were.

The prosecutor asked the victim if the Defendant ever explained why she forced 

the victim to engage in sexual activities with her. The victim testified that the Defendant 

told the victim that if parents “love [their] children” that “they teach them how to have 

sex . . . so that they know what sex is and how to have an adult relationship.” The victim 

said that he believed the Defendant “at first” and thought “everybody [went] through 

this.” He claimed that it was not “until [the victim] started spending time with other 

children that that was way out of the norm.” The victim said that he discussed the sexual 

encounters with his stepbrother, who told the victim “that’s kind of weird.” The victim 

also told his stepmother about these incidents, and “she got really upset.” 

The victim explained that after he told his stepmother, the Department of 

Children’s Services (DCS) and other agencies began investigating his claims of sexual 

abuse. The victim explained that he went to DCS “quite a few times.” He explained that 

in addition to telling his stepbrother and stepmother about the abuse, he disclosed this 

information to “different counselors[,]” including counselors working for DCS. 

However, the victim said that he “talked about how [the Defendant] was” touching his 

penis, but that he “wouldn’t go into like the oral sex and the attempt at penetration and 

everything because [he] was really embarrassed about it.” Furthermore, he said that the 

counselors “didn’t seem like they really cared.” The victim explained that the visitations 

continued with the Defendant, despite his meeting with DCS “[s]everal times” and his 

bringing allegations. The victim said that he “didn’t really trust [the counselors] after 

that” and that he was “not going to open up and tell them all of this really embarrassing 

stuff when it’s not going to help anyway.” 

The victim stated that P.D. was his “aunt on [his] father’s side.” He explained that 

he had “a really great relationship” with P.D. and said that P.D. had been friends with the 

Defendant for a long time. The victim asserted that he never disclosed anything 

regarding the sexual abuse to P.D. because he “didn’t want her to look at [him] 

differently.” The victim testified that P.D. never directly asked him about the abuse and 

said that she “would just kind of state like, you know, [the Defendant] probably wouldn’t 

do anything like that.” This victim said that he “wouldn’t really respond” because he 

“didn’t want [P.D.] to find out.” However, the victim believed that P.D. was aware of the 

allegations he had made against the Defendant. The victim said that he had told multiple 

people about the abuse, including a guardian ad litem, but that nothing happened. The 

victim further explained that he did not wish for anyone to find out about the abuse 

“unless they could do something about it and stop it.” The victim said that he “was tired 
-11-

of telling so many different people about it and being really embarrassed and then just to 

be let down over and over again and still have to endure it.” 

The victim testified that he also told his first girlfriend, M.A., about the sexual 

abuse involving the Defendant. The victim explained that he graduated from high school 

in 2008. Following graduation, the victim moved to Kansas City, where he met M.A. 

The Defendant and M.A. began dating in January 2009, and the two dated until

approximately eight months prior to this trial. He moved to North Dakota with M.A., and 

they spent time living and working in Arizona. The victim explained that after dating 

M.A. for seven months, he began a “physical relationship with her.” The victim

explained that certain sexual activities with his girlfriend made him uncomfortable, and 

he “kind of broke down” and explained to his girlfriend that “the first time [he] ever 

experienced oral sex [was] because [his] mother was doing it to [him]” and that he no 

longer enjoyed oral sex. The victim said that this conversation took place in late 2009. 

The victim testified that he was contacted by the Murfreesboro police regarding an 

investigation into this case in 2012. The victim returned to Murfreesboro to be 

interviewed by detectives. The victim stated that due to the investigation, he moved 

permanently to Murfreesboro. When asked “[b]ut for the phone call from the 

Murfreesboro detectives saying, hey, we are investigating this and want you to come and

interview with us, would you have ever sought to initiate some prosecution of your 

mother on your own[?]”, the victim replied, “No. Because I was just happy that it was 

over with.” 

On cross-examination, the victim admitted that he told a DCS counselor that 

nothing inappropriate ever happened with the Defendant. The victim explained that he 

told DCS the sexual allegations were false because the Defendant told him that if he told 

DCS about the abuse that she would go to jail. The victim said, “[The Defendant] was 

like, if you children keep saying these things, they are going to put me in jail. And I 

really don’t want to go to jail. They do horrible things to people in jail.” The victim 

testified that these comments “freaked all of us out” and that he “didn’t want . . . to have 

anything like that happen to” the Defendant. The victim stated that he “just want[ed] [the 

Defendant] to stop” and that because “DCS hadn’t done anything so far, [the victim] just 

kind of kept [his] mouth shut.” 

When asked if the victim ever told his aunt, P.D., that he had fabricated the sexual 

abuse, the victim said that he did not. The victim stated that he would “kind of skirt the 

question” and tell his aunt that “everybody says [he was] making it up. So, what’s to be 

done about it.” Defense counsel also asked the victim if he recalled having a 

conversation with his brother M.W. “concerning the allegations [the victim] had brought 

against [their] mother[.]” The victim said that he and M.W. spoke briefly about the 
-12-

allegations after the victim graduated from high school. The victim stated that he and 

M.W. both expressed relief that the abuse had ended and happiness about being “grown 

now.” The victim denied telling M.W. that he had “made up” the allegations and that 

“things didn’t happen.” 

On re-direct examination, the victim testified that he told his father, P.V.W., about 

the sexual abuse allegations against his mother. The victim said that his father did not 

immediately believe him and told the victim that he should not “be making stuff up about 

[the victim’s] mom like that.” The victim explained that his father told him that he was 

going to “keep fighting for [the victim] and trying to get sole custody of” the victim and 

his siblings, but the victim did not “have to say stuff like that” about the Defendant. The 

victim said that his father eventually believed that he was telling the truth about the 

Defendant.

The Defendant testified on her own behalf. She stated that she married P.V.W. in 

1984 and that they lived in Nashville, Tennessee. She explained that she and P.V.W.

owned several campground properties together and that the two were “baptized as 

Jehovah’s Witnesses” in 1991. She explained that she and P.V.W. had four children 

together: the victim, M.W., J.W., and A.W. 

The Defendant testified that in December 1995, P.V.W. “confessed that he had 

had an affair with” a campground manager on one of their properties and that their 

marriage began “to deteriorate.” The Defendant stated that she and P.V.W. began

divorce proceedings in May 1996 and that the Defendant took the four children and 

moved to North Carolina. After a custody hearing in August 1997, P.V.W. was awarded

custody of the three boys: the victim, M.W., and J.W. The Defendant testified that 

P.V.W. “disassociated himself” from the church in 1996, and she believed that she was 

not awarded custody because she was a Jehovah’s Witness. 

The Defendant said that she lived in North Carolina until December 1998 and that 

she moved to Murfreesboro, Tennessee, in January 1999. The Defendant said that she 

returned to Tennessee so that she “could have more visitation with [her] children.” She 

said that regarding custody, she had the children “every other weekend” and that she and 

P.V.W. “divided holidays.” The Defendant moved back to North Carolina in July 2002 

and had custody of the two youngest children, J.W. and A.W., at that time. In the 

summer of 2003, the victim and M.W. also went to reside with the Defendant in North 

Carolina and remained there until fall 2003. All of the children returned to Tennessee 

with P.V.W. in the fall of 2003, and the custody dispute between the Defendant and 

P.V.W. continued. 
-13-

In 2005, the Defendant moved to Portland, Oregon “because there [were] 

allegations of sex abuse” from the victim. The Defendant explained that she fought 

“these allegations” from 2003 to 2005 and that the process was “very emotional” and 

“very traumatic”; thus, the Defendant decided to move to Oregon. She denied relocating 

to “flee[] any sort of prosecution.” The Defendant said that in 2012, she learned that 

there “was a warrant out for [her] arrest for rape of a child” and she “turned [herself] in” 

because she wanted to cooperate.

On cross-examination, the Defendant denied sexually abusing the victim. She 

agreed that she attempted to be a good mother and that she loved her children. When 

asked why she thought the victim had raised these allegations, the Defendant stated that 

she thought “all of these years [the victim had] been manipulated by [P.V.W.].” 

P.D. testified that P.V.W. was her brother and that the victim was her nephew. 

P.D. said that the Defendant was her former sister-in-law and that she had known the 

Defendant since approximately 1983. P.D. testified that in either late 2010 or early 2011, 

the victim called her. She said that during this conversation, the victim revealed to her 

that “he wished he had never said those things about [the Defendant]” and that what he 

said “was not true.” P.D. claimed that the victim told her that he was afraid of his father 

and stepmother but that he had never been “afraid to be with [the Defendant].” On crossexamination, P.D. agreed that during her telephone conversation with the victim “nothing 

about sexual abuse was said specifically[.]” 

M.W. testified that the Defendant is his mother. He stated that when he was 

nineteen years old, he had a conversation with the victim regarding the victim’s 

allegations of sexual abuse. M.W. said that during this conversation, the victim 

expressed regret about “having to uphold the lies that [P.V.W.] told [the victim] to tell” 

about the Defendant. However, M.W. agreed that the victim never specifically stated 

“what he had alleged [the Defendant] had done.” 

On cross-examination, M.W. confirmed that the Defendant was strict with the 

children while they were with her. However, M.W. said that home life with the 

Defendant was pleasant and structured. M.W. testified that he preferred living with the 

Defendant to living with P.V.W. M.W. admitted that the Defendant “ran a tight ship” 

and that if the children disobeyed, then the Defendant would “spank” the children using 

“either her hand or a wooden spoon or maybe a switch.” M.W. further admitted that 

these spankings would leave a red mark “for a little bit” but said that he did not consider 

the spankings to be severe. M.W. also stated that he “believe[d] [the Defendant] never 

sexually molested or raped” the victim. M.W. agreed that he “never saw or observed 

anything in [the Defendant’s] behavior that [was] in any way consistent with the charges” 

that the Defendant faced at trial. He also agreed that he was aware of the victim’s 
-14-

allegations prior to their telephone conversation and said that “we knew about the 

allegations[,]” having “testified before.”

For impeachment purposes, the State confronted M.W. with previous statements 

he had made to a therapist regarding the Defendant and allegations of sexual abuse. 

M.W. claimed that he did not remember making such statements. 

In response, the State called Linda Arbaugh-Patin as a rebuttal witness. Ms. 

Arbaugh-Patin testified that she was a psychotherapist, who had been practicing for 

approximately thirty years. She said that seeing children had always been “a big part of 

[her] practice.” She testified that she never tried “to influence what types of answers that 

[her] clients g[ave]” because “that would be against [her] ethics.” The prosecutor showed 

Ms. Arbaugh-Patin a stack of documents, which she identified as “progress notes” 

regarding therapy sessions with M.W. The first document was labeled July 29, 2005, and 

the prosecutor asked Ms. Arbaugh-Patin to tell the jury some of the statements M.W. 

made during this session, and the following colloquy took place:

A. Things said by [M.W.], [“]when I came up through the hall and the door 

was open, I saw [the Defendant] holding [the victim’s] privates, his penis, 

and playing with it. Working through guilt that I didn’t stop it or tell 

anyone.[”]

Q. And that’s under a heading first memory, is that right?

A. Correct.

Q. Okay. And second memory.

A. [“]I came down the stairs in the morning. [The Defendant] was 

sleeping in the living room with [the victim] on a blow up bed. She had a 

real small shirt on that came down to her belly button. Then all she had on 

was her underwear. All [the victim] had on was his underwear. They were 

all hugged up with arms and legs wrapped around each other. I didn’t do 

anything about it. Just walked back up the stairs.[”]

. . . . 

Q. That’s all from that session. Then if we could go to a session from June 

[2], 2005.

A. Okay. I’m there.
-15-

Q. All right. On the reverse side of that cover sheet – again, would this be 

a solo session or a group session with [M.W.]?

A. Solo.

Q. All right. And on the second page of the records from that session near 

the top of the page, there is a highlighted portion. Could you tell the jury 

what it is that [M.W.] reported to you on that date?

A. [“]When eight or nine years old . . . [the Defendant] tickled my private 

parts and [the victim’s], too.[”] And I said, your penis? And [M.W.] said 

yes.

. . . . 

Q. All right. Now, thank you. We’ll move on to September 27, 2004. 

. . . .

Q. What did [M.W.] say during this session?

A. Okay. This says, [M.W.] talked to [the victim] about his fears that [the 

victim] would go over to [the Defendant’s] side. [The victim] reassured 

[M.W.] that would not happen. We discussed how most children love their 

parents no matter how abused they were. 

And just because [the victim] talks to [the Defendant] does not mean 

that he has forgotten what she has done.

A. He said, [“]I felt like ready to give up if [the victim] went back over to 

[the Defendant’s] side. This is what I fear most because I don’t want her to 

get custody of us.[”]

. . . . 

Q. All right. And tell the jury what [M.W.] reported on August [30], 2004.

A. [“]I don’t know whether to be mad or nice to [the Defendant] when I 

see her. My fear is that if I am nice to her, the [j]udge will think she didn’t 

do it and send us back. Telling [the Defendant] the truth doesn’t work. She 

just denies it. It’s very frustrating. So, I quit talking.
-16-

[The Defendant is] like the Terminator. There is no end to her 

attacks.[”] 

. . . . 

Q. [On] June [29], 2004, what was it that [M.W.] reported to you in that 

session?

A. [“]I will talk to [the Defendant] on the phone. It’s like I have got this 

fire burning in my stomach. She denies everything . . . . Even if I go into 

detail, she denies this.[”] . . . [M.W.] told [the Defendant], [“S]o my eyes 

are lying to my brain. I have seen it with my own eyes.[”]

. . . . 

Q. And on [p]age 3 of that sessions notes, can you tell the jury what else 

[M.W.] reported to you?

A. How do you feel when [the Defendant] denies things you know to be 

real. . . . That’s what I asked. This is how he responded. [“]You can’t 

even imagine how frustrating it is. Zero to [ten], it doesn’t even have a 

number. It’s to infinity.[”]

. . . . 

[“]You know what really makes me angry. [The Defendant] tries to make 

me feel bad for telling her the truth. Anger, zero to [ten], to infinity.[”]

Q. Thank you, [Ms. Arbaugh-Patin]. If we could go to June [8], 2004[.]

A. Okay. [M.W.] said that he told [the Defendant] – and this is in quotes –

[“T]his isn’t fair because the [j]udge did not hear all of the information, and 

what you did was wrong. I think you know that. I’m going to talk to my

lawyer. I’m never going to see you unless you get serious mental health.[”]

Q. Okay. Let’s skip ahead to June [1], 2004. 

A. [“]When we visited with [the Defendant], the people who were 

supervising the visit were in another room for a split second. They went 

and laid their stuff down. We were in front of the people supervising, and 

[the Defendant] told me, I just want you to know I forgive you for 

everything that’s happening.
-17-

I thought, I didn’t do anything. I felt sort of frustrated and hurt. She 

knows she did it . . . . I felt freaked out for a second like are you crazy.[”]

Q. Thank you. We’ll move on to April [20], 2004. On page [three] of the 

attached notes.

. . . . 

A. Okay. “This is what happened to me and the reason I don’t talk about 

it.” And [M.W.] said, [“]I don’t worry about it. I don’t feel the need to talk 

about it. I have told myself that . . . why should I let something that 

happened to [the Defendant], her own sexual abuse issues . . . . Wreck my

whole life. I decided it does not affect me.[”]

Q. Okay, and this topic was a topic of conversation that you and [M.W.] 

engaged in regularly, right?

A. All of these things.

Q. Okay. We’ll go back to February [9], 2004. What did [M.W.] report[?]

A. Okay. [“]From [age] five to nine, [the Defendant] tickled my penis. I

told [my stepmother] when I was nine years old. [My stepmother] called 

[the Defendant] and told her that if [the Defendant] did not stop, she would 

notify DCS . . . [and] [a]nyone else that would listen.

[The Defendant] stopped touching my penis, but did not stop 

touching [the victim] or J.W. She quit for a while with me. The 

[Defendant] started undressing around me when I was 11. She started this 

past summer.

. . . . 

[The Defendant is] sexually abusing me. More than I have revealed 

so far.[”] 

. . . . 

Q. Okay. Go to January [7], 2004. . . . There are several notes about 

visitations. If you would read those please.
-18-

A. Okay. First visitation, [the Defendant] and [the victim] slept together 

on the couch. When M.W. asked why, [the Defendant] said because [she] 

didn’t get enough time to mother [the victim] when he was a baby.

Second visitation. They slept together in [the Defendant’s] bed one 

night, [the Defendant and the victim].

Third visitation. [The Defendant and the victim] slept together one 

night in her bed.

Fourth visitation. [The Defendant and the victim] slept together 

every night and every night since.

. . . . 

A. [M.W.] said, “I was lucky because [J.W.] cried if I was not in the room 

with him. So, I didn’t have to sleep with [the Defendant]. It seemed to 

make [the victim] happy to sleep with her. Seemed that he enjoyed it.

[The Defendant] used to sleep with [his sister], but now she no 

longer did. She just slept with [the victim].” M.W. said, “I thought it was 

weird that she quit sleeping with [A.W.] and only slept with [the victim]. 

If [A.W.] asked to sleep with [the Defendant] if scared of monsters, 

then [the Defendant] would say no.”

. . . . 

Q. Okay . . . . From February [4], 2004.

A. All right. [“The Defendant] is like a wicked witch, but poses for a good 

fairy. I saw her tugging on [the victim’s] private parts in the pool.[”]

Q. . . . On February [11], 2004.

. . . . 

A. [“]We were at [the Defendant’s] friend’s pool alone. [The Defendant] 

hugged me like a wife would hug her husband. Was not a normal . . . 

[m]om hug.

[The Defendant] pulled off [the victim’s] swimsuit. Then mine, then 

hers.”
-19-

As a rebuttal witness, the State also called M.A. M.A. testified that she knew the 

victim and that she had dated him “for five years[,]” beginning in 2009. She said that she 

lived “out west” with the victim and that they worked similar jobs. The prosecutor asked 

her if the victim had ever told her that he had been sexually abused by the Defendant, and 

M.A. replied, “Yes.” M.A. explained that the disclosure occurred when she attempted to 

perform oral sex on the victim. She said that the victim “kind of like freaked out. He 

looked like he was afraid or something.” M.A. asked the victim, “[A]re you okay, what’s 

wrong with you[?]” M.A. said that the victim revealed to her “what happened with [the 

Defendant] and everything.” When asked if the victim told her specifically what the 

Defendant did to him, M.A. replied, “[S]he would do stuff like . . . oral sex.” 

At the conclusion of the trial, the jury found the Defendant guilty of six counts of 

rape of a child. Following a sentencing hearing, the Defendant was sentenced to a total

effective sentence of forty years’ incarceration to be served at one-hundred percent. The 

trial court denied the Defendant’s motion for a new trial, and the Defendant filed a timely 

appeal with this court.

ANALYSIS

I. Sufficiency

On appeal, the Defendant asserts that the evidence was insufficient to support her 

convictions for six counts of rape of a child. Specifically, the Defendant argues that the 

“inconsistencies in” the victim’s testimony “are so prominent that they create a 

reasonable doubt that [the Defendant] is guilty” of rape of a child. The State responds 

that the evidence was sufficient to support the Defendant’s convictions. We agree with 

the State.

An appellate court’s standard of review when the Defendant questions the 

sufficiency of the evidence on appeal is “whether, in 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). This court does not reweigh the evidence; rather, it presumes that the jury 

has resolved all conflicts in the testimony and drawn all reasonable inferences from the 

evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); 

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness 

credibility, conflicts in testimony, and the weight and value to be given to evidence were 

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty 

verdict “removes the presumption of innocence and replaces it with a presumption of 

guilt, and [on appeal] the defendant has the burden of illustrating why the evidence is 

insufficient to support the jury’s verdict.” Id., State v. Tuggle, 639 S.W.2d 913, 914 
-20-

(Tenn. 1982). “This [standard] applies to findings of guilt based upon direct evidence, 

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.” 

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

“Direct and circumstantial evidence should be treated the same when weighing the 

sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). 

The reason for this is because with both direct and circumstantial evidence, “a jury is 

asked to weigh the chances that the evidence correctly points to guilt against the 

possibility of inaccuracy or ambiguous inference[.]” Id. at 380 (quoting Holland v.

United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal 

of a conviction is not to contemplate all plausible inferences in the [d]efendant’s favor, 

but to draw all reasonable inferences from the evidence in favor of the State.” State v. 

Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

As relevant here, “[r]ape of a child is the unlawful sexual penetration of a victim 

by the defendant or the defendant by the victim, if such victim is less than thirteen years 

of age.” Tenn. Code Ann. § 39-13-522(a) (2003). “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[.]” Tenn. Code Ann. § 39-13-501(7) (2003). 

Here, there is sufficient evidence to support the Defendant’s convictions for rape 

of a child. Regarding count one, the victim described an occasion during which the 

Defendant placed the victim’s penis in her mouth and performed oral sex until “just 

before he ejaculated.” Regarding count two, the victim testified that on another occasion, 

the Defendant performed oral sex on the victim and that during this, he turned his head 

and noticed “a Neil Diamond Greatest Hits” CD case. Regarding count three, the victim 

described another encounter with the Defendant during which he placed two fingers 

inside her vagina and moved his hand “back and forth to create friction.” Regarding 

count four, the victim recalled another time when he digitally penetrated the Defendant’s 

vagina and noticed “a part that felt a lot rougher than the rest of the vagina” and that the 

Defendant told him that it was a “good place to touch.” Regarding count five, the victim 

said that during yet another encounter, the victim digitally penetrated the Defendant after 

the victim’s younger sister knocked on the bathroom door and requested a drink of water. 

Regarding count six, the victim testified that the Defendant “pulled [the victim’s] penis 

toward her” so that the “tip of [his] penis started to press inside her vagina[.]” 

Furthermore, the victim explained that the Defendant told him that parents teach their 

children “how to have sex . . . so that they know what sex is and how to have an adult 

relationship.” The victim believed this to be true, until he told his stepmother, who “got 

really upset.” The jury found the victim’s testimony to be credible and resolved any 
-21-

inconsistencies, and we will not re-weigh that finding on appeal. See Bland, 958 S.W.2d 

at 659. Thus, we hold that the evidence is sufficient to support the Defendant’s 

convictions for six counts of rape of a child. See State v. Bonds, 189 S.W.3d 249, 256 

(Tenn. Crim. App. 2005) (noting that “[i]t is well-settled law in Tennessee that the 

testimony of a victim, by itself, is sufficient to support a conviction”) (internal quotation 

marks omitted). 

II. Corporal Punishment

The Defendant also argues that evidence of corporal punishment by the Defendant 

was improperly admitted. Specifically, the Defendant argues that such evidence is 

irrelevant because it “does not tend to prove or disprove any fact of consequence” and “it 

is not necessary to develop the full story of the offenses [the Defendant] is charged with.” 

The State responds that the Defendant has waived this issue because she failed to include 

it in her motion for new trial. Furthermore, the State contends that the Defendant is not 

entitled to plain error relief on this claim. We agree with the State.

In this case, the Defendant failed to raise the issue of corporal punishment in her 

motion for new trial. Tennessee Rule of Appellate Procedure 3(e) states that “no issue 

presented for review shall be predicated upon error in the admission or exclusion of 

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

such issues will be treated as waived.” The Tennessee Supreme Court has explained:

Before an issue can be properly preserved in a motion for new trial 

under Rule 3(e), a well-pleaded motion should (1) allege sufficient factual 

basis for the error setting forth the specific circumstances giving rise to the 

alleged error; and (2) allege sufficient legal basis for the error by 

identifying the trial court’s claimed legal basis for its actions and some 

articulation of why the court erred in taking such actions.

Fahey v. Eldridge, 46 S.W.3d 138, 145 (Tenn. 2001). Here, the Defendant failed 

to include any mention of the issue of corporal punishment in her motion for new 

trial. Accordingly, the Defendant has waived our consideration of this claim. 

Moreover, the Defendant makes no argument that this court should review this 

claim for plain error, and we see no reason to do so sua sponte.

III. Relevancy of the State’s Cross-Examination of M.W.

The Defendant argues that the trial court erred in “allowing the State to crossexamine [M.W.] about statements he had previously made to a therapist about incidents 
-22-

of sexual abuse” by the Defendant “because the statements are irrelevant[,]”

2

and 

therefore, Ms. Arbaugh-Patin should not have been allowed to testify. The State 

responds that the trial court properly admitted M.W.’s “prior inconsistent statements to a 

therapist to impeach his credibility.” We agree with the State. 

The general admissibility of evidence is governed by Tennessee Rules of Evidence 

401 and 403. Under these rules, the trial court must determine, first, whether the 

evidence offered is relevant. Tenn. R. Evid. 401. Evidence is deemed relevant if it has 

“any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Tenn. R. Evid. 401. Although relevant evidence is generally admissible, see

Tennessee Rule of Evidence 402, it “may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence[.]” See Tenn. R. Evid. 403; State v. Banks, 564 

S.W.2d 947, 950-51 (Tenn. 1978). The term “unfair prejudice” has been defined as “[a]n 

undue tendency to suggest decision on an improper basis, commonly, though not 

necessarily, an emotional one.” Banks, 564 S.W.2d at 950-51. This court has also stated 

that “[p]rejudice becomes unfair when the primary purpose of the evidence at issue is to 

elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v.

Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of 

Federal Evidence, 182-83 (2d ed. 1986)).

Here, the evidence of M.W.’s prior inconsistent statements to a therapist were 

used to impeach his credibility. During his testimony, M.W. asserted that the victim lied 

about the allegations of the Defendant’s sexual abuse. M.W. testified that he and his 

siblings, including the victim, preferred to live with the Defendant rather than live with 

their father, P.V.B. Furthermore, he denied ever observing any behavior by the 

Defendant that would make him believe she was capable of committing sexual abuse 

against the victim or himself. The court held a jury-out hearing in which the trial court 

determined that the State could use such statements to impeach M.W. Also, the State 

requested the trial court give an instruction that M.W.’s prior statements could only be 

considered for impeachment purposes, and the trial court so instructed the jury. When 

confronted with his prior statements to a therapist, M.W. said that he did not recall 

making any of those comments, giving the State the opportunity to call the therapist, Ms. 

Arbaugh-Patin, and introduce prior inconsistent statements that M.W witnessed the 

 

2 The Defendant also argues that admission of these statements violated Tennessee Rule of Evidence 

404(b); however, she failed to include this claim in her motion for new trial. Thus, the issue is waived. 

The Defendant makes no argument that this court should review this ground for plain error, and again, we 

see no reason to do so sua sponte.
-23-

Defendant sexually abuse the victim and that she sexually abused him. See Tenn. R. 

Evid. 613 (permitting the introduction of extrinsic evidence of a prior inconsistent 

statement of a witness after the witness has been given the opportunity to explain or deny 

the situation). Ms. Arbaugh-Patin’s testimony was not admitted as substantive evidence

but was instead admitted for impeachment purposes. We conclude that M.W.’s prior 

statements to Ms. Arbaugh-Patin were relevant for impeachment purposes. Moreover, 

the victim’s credibility was an issue at trial, and we conclude that the probative value of 

M.W.’s prior statements was not substantially outweighed by the danger of unfair 

prejudice. Thus, the prior statements were properly admitted.

CONCLUSION

Based upon consideration of the foregoing and the record as a whole, we affirm 

the judgments of the trial court.

_________________________________

 D. KELLY THOMAS, JR., JUDGE