IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 13, 2011 Session

STATE OF TENNESSEE v. ADRIAN LEROY SCOTT

Appeal from the Criminal Court for Davidson County

No. 2006-B-1108 Monte Watkins, Judge

No. M2010-00625-CCA-R3-CD - Filed January 17, 2012

Following an indictment charging three counts of sexual battery by an authority figure and

two counts of rape, a Davidson County Criminal Court jury convicted the defendant, Adrian

Leroy Scott, of three counts of assault, see T.C.A. § 39-13-101(a)(3) (2003); one count of

attempted sexual battery by an authority figure, see id. §§ 39-13-527(a)(1)(B), 39-12-101;

and one count of attempted sexual battery, see id. §§ 39-13-505(a)(1), 39-12-101. The trial

court imposed an effective sentence of three years’ split confinement consisting of six

months’ incarceration in the workhouse followed by two and one-half years on probation.

In addition to contesting the sufficiency of the evidence to support his convictions, the

defendant argues on appeal that the trial court erred by denying (1) his motion to suppress

his statement to the police, (2) his motion for a mistrial based upon the undisclosed testimony

of a rebuttal witness, (3) his motion to dismiss counts three and five based upon a fatal

variance between the indictment allegations and the proof presented at trial, and (4) his

request to present evidence at trial concerning the sexual offender registry. The defendant

also contends that the trial court erred by imposing consecutive sentences and denying him

full probation. The State concedes that the trial court erroneously imposed consecutive

sentences and also notes that the trial court failed to merge two sets of alternative counts.

On remand, the trial court shall enter corrected judgments reflecting merger and concurrent

sentences. Discerning no other error, we affirm the judgments of the trial court as modified.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed as Modified

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the Court, in which JERRY L. SMITH

and NORMA MCGEE OGLE, JJ., joined.

Jeffery L. Frensley, Nashville, Tennessee, for the appellant, Adrian Leroy Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and J.W. Hupp, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

In October 2005, the then-14-year-old victim, M.P., told her mother that the

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defendant, the victim’s stepfather, had touched her inappropriately on several occasions.

Their family, which included the victim’s two younger brothers, got along “in the

beginning,” and the victim described her relationship with the defendant as a “typical fatherdaughter relationship.” In the first home the family shared, nothing unusual occurred

between the defendant and the victim except some wrestling during which the defendant

touched “[the victim’s] breasts or . . . butt.” At the time, however, the victim believed the

touching was accidental. Although the reported incidents had occurred over an

approximately two-year time period after the victim turned 13, the victim was nervous to tell

her mother and only did so at the urging of a close friend.

Because the family was in the process of building a home, they spent nights at

either the defendant’s mother’s home or the victim’s maternal grandmother’s home

intermittently for approximately six months. The victim recalled one specific incident that

occurred after the victim had attended her first football game while she, the defendant, and

her youngest brother stayed the night at the defendant’s mother’s home. Her brother wanted

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to sleep in a trundle bed with the victim, but the defendant instructed his son to sleep in the

nearby daybed, while the defendant and victim shared the trundle bed. The victim awoke that

night to feel the defendant “[r]eaching his hands up [her] shorts.” The victim, who was

menstruating at the time, felt the defendant’s finger touch her skin “around the area of her

tampon string . . . . going into the inside” of her labia. The victim began “coughing and

moving around.” The defendant then “stopped” and “[s]lowly tried to remove his hand”

from the victim’s shorts. The victim got up to use the bathroom and then returned to the bed,

where she tried to stay awake for the rest of the night. She believed the defendant was

“[p]laying asleep” throughout the incident. She did not immediately report the incident to

her mother; she explained,“I wasn’t sure [that it happened] because you see this kind of stuff

happening on movies, but you would never think that it would happen to you.”

The victim was not allowed to use the computer without the defendant’s

permission, and the defendant required the victim to sit on his lap whenever she used his

computer. On several instances, the defendant “tried to touch [the victim] . . . [i]n between

 It is the practice of this court to refer to child victims of sexual abuse by their initials.

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 The victim’s younger brother was the defendant’s biological son. He was four or five years old

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at the time.

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[her] legs.” Once, when a friend of the victim was visiting, the defendant reached between

the victim’s legs into her shorts and attempted to move the victim’s underwear over to gain

skin-to-skin contact with the victim’s genital area. The victim jumped up “instantly.” She

ultimately stopped using the defendant’s computer. On cross-examination, when asked if the

defendant could have been scratching, the victim testified, “No. I think he knew exactly

what he was doing.”

In their new home, the victim’s bedroom was located in the basement near the

defendant’s home office. She also had an adjacent bathroom. She recalled that she “would

get out of [her] shower and [the defendant] would actually be in [her] closet waiting for [her]

to undress.” Once, the defendant “actually came out [of the closet] and [tried] to start

wrestling the towel off of [the victim].” The victim screamed for her brothers, who quickly

ran downstairs, and the defendant said, “‘You’re no fun. Why [are] you being like that? It’s

nothing I [have] never seen before.” To her knowledge, the defendant had never seen the

victim naked. From that time on, the victim would check her closet and lock her doors

before dressing or undressing.

The defendant often tucked the victim in at night because she was afraid of the

dark. Later, he began coming into her room during the middle of the night. Once, the victim

awoke to find the defendant lying on top of her with a comforter between them. She could

not recall whether he touched her. The victim moved and the defendant left and returned to

his bedroom upstairs. Although the defendant did not speak, he was not dazed or confused

when leaving her room. The victim denied that the defendant often fell asleep in her room

watching television. The victim believed that the defendant “was very awake every time he

tried to touch [her].”

After learning of the victim’s report, the victim’s mother confronted the

defendant. The defendant apologized and told the victim’s mother that he wanted to get help.

The victim’s mother asked the defendant to leave their home, and the couple eventually

divorced. The victim was hesitant to talk to authorities because she was concerned about the

incidents being reported on the news. When a Department of Children’s Services (DCS)

investigator contacted her, the victim knew that “[s]omeone had apparently told someone.”

The victim’s mother, Konya Hollands, married the defendant in 1998, and the

couple divorced in 2008. Ms. Hollands brought two children to the marriage, the victim and

a son. Ms. Hollands and the defendant’s son was born in 2000. Ms. Hollands described her

initial relationship with the defendant as “heaven-sent.” She expressed no concerns at first

with the defendant’s relationship with the victim. While living in their first home, however,

Ms. Hollands became concerned over the defendant’s wrestling and requiring the victim to

sit on his lap at the computer because she “felt like little girls shouldn’t sit on men’s laps

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[and] they shouldn’t wrestle.” Each time Ms. Hollands voiced her concerns to the defendant,

he acted offended by her “insinuation.”

The family lived with relatives for some time in 2004 while building their new

home. During the same time period, Ms. Hollands graduated from nursing school and began

working the 7:00 a.m. to 7:00 p.m. shift three days a week. The defendant, a firefighter with

the Nashville Fire Department, worked 24 hour shifts and was off work for 48 hours on a

rotating basis. The couple never left the children at home alone. As the victim approached

her “teenage years,” the victim and the defendant experienced “friction.” Throughout 2004

and 2005, the “friction” between the defendant and the victim increased. When the family

held “family meetings,” the defendant and the victim engaged in “like a push and pull, a tug

– a tug of war, almost like.” As the friction between the victim and the defendant increased,

the defendant gave the victim an expensive cellular telephone, one that Ms. Hollands said

that she would not have purchased for herself. Retrospectively, Ms. Hollands believed that

the expensive cellular telephone “was part of [the defendant’s] grooming [the victim].”

In October 2005, while the defendant was away from home, the victim

approached Ms. Hollands and was “kind of fidgety and nervous acting . . . like she wanted

to say something but she didn’t want to say something.” When the victim disclosed to her

mother what had happened with the defendant, Ms. Hollands was “shocked.” She said the

report “was like a brick hitting [her] in the back of the head.” When Ms. Hollands

confronted the defendant outside the victim’s presence, he did not admit explicitly to any

behavior, but he told Ms. Hollands that she “had to believe [her] daughter.” She asked the

defendant to leave the home, and he went to live with his mother across the street. Several

days later, during a meeting among the defendant, Ms. Hollands, and the victim, the

defendant apologized and told his wife and the victim “that he was sick [and] that he needed

help.”

The victim initially only reported the incident that had occurred at the

defendant’s mother’s home. After the defendant left the family home, the victim eventually

disclosed more inappropriate behavior by the defendant. Ms. Hollands reacted to the

information by suffering “a very deep depression.” She did not contact the police herself

because she was “in love . . . [and] blind.” She explained also that the victim asked her not

to do anything after the defendant promised it would not happen again. Ms. Hollands also

believed, based upon other conversations with the defendant, that “it was a firemanpoliceman type thing where they would take [the defendant] off, cool him down, and then

everything would be okay.” The defendant continued to promise Ms. Hollands that

“everything [would] be fine” and that he “would have his family back.” After Ms. Hollands

began counseling, she realized that she “needed to cut [her] ties” to the defendant. Ms.

Hollands filed for divorce and spoke to investigators in February 2006. The victim gave a

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statement to DCS investigators around that same time.

After the police investigation began but before Ms. Hollands filed for divorce,

the defendant told Ms. Hollands that parasomnia caused him to commit the acts and

recommended she look up the disorder on the internet. Ms. Hollands instead contacted the

District Attorney General’s victim-witness coordinator to inform her of the defendant’s

explanation. Ms. Hollands testified that she never saw any evidence of “odd sleep behavior”

in the defendant. She also thought the victim’s report of waking up to find the defendant on

top of her in her bed bore similarity to something the defendant would sometimes do to her.

Ms. Hollands said that the defendant would take the kids to school and return home where

she would be sleeping, having worked the night shift the previous night. The defendant

would “put baby oil on himself . . . and he’d slide in bed beside [her], and he would just kind

of grind on [her].” At the time, Ms. Hollands thought it was “like a game,” so she would

pretend to be asleep even if she was not. The defendant would ejaculate “in a rag.” Once,

she asked the defendant why he would “sneak” like that, and he told her that he did not want

to wake her. Ms. Hollands said that the defendant did not try to fondle her when this

behavior would occur and that she was certain he was always awake.

Forrest Garrett, a court officer with the Davidson County Circuit Court and also

a Wilson County Sheriff’s Deputy, knew the defendant as his “brother-in-law’s grandson.”

The defendant contacted Officer Garrett after the defendant’s confrontation with Ms.

Hollands concerning the victim’s allegations. The defendant asked Officer Garrett for advice

and help dealing with his “inappropriate touching” of the victim. During their discussion,

the defendant never mentioned being asleep when the touching occurred. Officer Garrett told

the defendant that he could put the defendant in touch with someone at the MetropolitanNashville Police Department (Metro) who could “assist” the defendant. Ten minutes after

their conversation, the defendant telephoned Officer Garrett and told him “not to worry

about” what they had discussed because the defendant and his wife had decided to deal with

the problem within the family. Officer Garrett told the defendant that it was “too late”

because Officer Garrett had a duty to report the allegation. He also warned the defendant

that Ms. Hollands could “get in trouble” if she failed to report the allegation. Officer Garrett

telephoned Metro Detective Greg Robinson the next day.

Greg Robinson, an investigator with the Vanderbilt University Police

Department at the time of trial, investigated the incidents as an assistant detective with

Metro. Mr. Garrett contacted Detective Robinson with information concerning a sexual

abuse disclosure made to Mr. Garrett by the defendant. Detective Robinson arranged a

“controlled telephone call” between Mr. Garrett and the defendant during which the

defendant made admissions that substantiated Mr. Garrett’s report. The defendant then

agreed to meet with Detective Robinson and Detective Keven Cooley later that day at the fire

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station where the defendant worked.

At their meeting, both detectives informed the defendant that he was not under

arrest and was free to leave at any time. The detectives did not, however, inform the

defendant that the conversation was being recorded. The defendant agreed to an interview,

but he refused to sign a written statement. The defendant sat in the front seat of Detective

Cooley’s unmarked car, with Detective Cooley seated in the driver’s seat and Detective

Robinson seated in the backseat, while the three men discussed the victim’s allegations.

The defendant admitted details of the victim’s allegation that had occurred at

his mother’s house. Although the defendant did not indicate that he was taking sleep

medication, he did tell the detectives that he was asleep or “in a daze” when the incident

occurred. The defendant discussed five separate incidents of touching the victim, including

the single incident of digital penetration that occurred at his mother’s house. The defendant

told the detectives that he told his wife that he needed to turn himself in. The defendant

never attempted to stop the interview. Detective Robinson did not advise the defendant of

his Miranda rights because the interview occurred in a non-custodial setting.

Detective Keven Cooley participated in the interview of the defendant at the

fire station. The defendant admitted touching the victim inappropriately at the family’s first

home, his mother’s home, and the second home. The defendant openly admitted his

transgressions and apologized. He did, however, claim that all the incidents occurred when

he was asleep. Detective Cooley recalled that “[a]ll the fondling occurred at night, after [the

defendant] either tucked [the victim] in or fell asleep with her.” Although his discussions

with the defendant about the defendant’s wrestling with the victim did not seem sexual,

Detective Cooley also opined, “when you put the entire story together, I think you have

something else at that point.” The defendant did not report having any sleep issues, but he

told the detectives that he would sometimes yell or fondle his wife in his sleep. Detective

Cooley testified that he and Detective Robinson did not arrest the defendant after the

interview because Metro uses “the grand jury method” of arresting via an indictment or

information to shield the victim from testifying multiple times in court.

With this evidence, the State rested its case. At the close of the State’s proof,

the State elected the following facts in support of each count of the indictment:

Count One (charging sexual battery by an authority figure): the

victim awoke to find the defendant lying on top of her with a

comforter in between them and the defendant admitted touching

the victim inappropriately

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Count Two (charging sexual battery by an authority figure): at

the defendant’s mother’s home, the victim awoke to find the

defendant reaching inside her shorts with his finger touching her

labia

Count Three (charging sexual battery by an authority figure):

while sitting on the defendant’s lap at the computer, the

defendant touched the victim’s clothing in an effort to push her

underwear aside

Count Four (charging non-consensual rape): the incident at the

defendant’s mother’s home, as an alternative to count two

Count Five (charging forcible rape): the computer incident, as

an alternative to count three

The defendant then orally moved for judgments of acquittal on all five counts. The trial court

denied the defendant’s motion with respect to counts one through four. The court partially

granted the defendant’s motion with respect to count five and ruled that the evidence

established only an attempted sexual battery.

Doctor James Brevard Haynes testified for the defendant as an expert in sleep

medicine. Doctor Haynes treated the defendant, whom he diagnosed with parasomnia.

Doctor Haynes explained that parasomnia encompasses any “undesirable physical event, or

experience, that occurs during sleep.” He further explained that examples of parasomnia

include night terrors, sleepwalking, sleep-talking, and sleep-eating. Significant to the

defendant’s diagnosis, parasomnia may also include sexual activity that occurs during sleep,

ranging from masturbation to intercourse. Doctor Haynesstated thatsexual parasomnia often

goes undiagnosed unless it involves an unwilling “recipient,” such as a minor or someone

other than a spouse. Most people who suffer from sexual parasomnia also have a childhood

history of sleepwalking. Sexual parasomnia is commonly diagnosed based upon anecdotal

histories taken by the patient or a spouse and does not always manifest during a clinical sleep

study because a spouse or partner would not be present. Doctor Haynes acknowledged that

sleep parasomnia is not an accepted psychological disorder in the Diagnostic Statistical

Manual IV; rather, he maintained that sleep parasomnia is a medical condition.

In July 2006, a sleep study conducted of the defendant revealed that the

defendant experienced several episodes of wakefulness, but he did not exhibit any sexual

behavior during the study. The defendant reported suffering night terrors and incidents of

sleepwalking as a child. The defendant told Doctor Haynes that he had fondled Ms. Hollands

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during his sleep when they were married. Likewise, the defendant’s current wife reported

that the defendant had fondled her in his sleep. Doctor Haynes determined that the

3

defendant had been “straightforward” with the investigation, that the alleged criminal acts

were “out of character” for the defendant, and that “there [was] no history of any vaginal

fondling of [the victim] during wakefulness.” Based upon these considerations, Doctor

Haynes opined that the defendant’s acts against the victim were unintentional and caused by

sexual parasomnia.

Doctor Haynes maintained that Ms. Hollands’ testimony at trial, despite her

testimony that the defendant was awake when he would “grind on” her, was consistent with

the history provided by the defendant. He also maintained that the victim’s testimony at trial

was consistent with the defendant’s report and that the victim may not have realized that the

defendant was asleep when the inappropriate behavior occurred. As to the victim’s

allegation concerning sitting at the computer, Doctor Haynes said that the allegation did not

change his diagnosis. He maintained that the defendant and the victim had “some boundary

issues,” as evidenced by the testimony concerning the defendant’s hiding in a closet or

grabbing the victim’s towel, but he believed that the computer incident was “almost

anatomically impossible” or that “a touch that started off as something innocent was

interpreted in a wrong way” by the victim. Doctor Haynes believed that the defendant only

admitted facts that were reported to him by the victim and Ms. Hollands and that any

additional facts revealed in the defendant’s statement to the police stemmed from the

detectives’ leading the defendant during the interview. Ultimately, Doctor Haynes admitted

on cross-examination that he disregarded facts not in agreement with the defendant’s selfreport because he “ha[d] to believe [the defendant’s] word” in order to maintain his

diagnosis.

David Warman, an assistant chief with the Nashville Fire Department, first met

the defendant in 1997 when the defendant was in training. Assistant Chief Warman stated

that the defendant made a “good impression” during training and developed into a “great”

fire fighter. He had no knowledge of any inappropriate behavior committed by the defendant

involving coworkers or the public. Assistant Chief Warman found the victim’s allegations

“hard to believe” and “inconsistent” with his knowledge of the defendant’s character.

Angel Scott married the defendant approximately one year before the June

2009 trial. She described their marriage as “loving” and the defendant as “a kind, caring

person.” Ms. Scott knew about the victim’s allegations before marrying the defendant, but

she testified that she did not believe the claims. Ms. Scott reported that the defendant often

At the June 2009 trial, the defendant and his current wife had been married approximately one 3

year. The report of his current wife was an addendum to Doctor Haynes’ July 2006 report.

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talked, twitched, rubbed, or grunted in his sleep. On several occasions, she awoke to

discover food wrappers or crumbs in their bed. Once, when Ms. Scott thought the defendant

was initiating sex during the night, she rolled over and realized that the defendant was asleep

and “completely unresponsive” to her. When she told the defendant about what had

happened the next morning, the defendant could not remember anything and became very

upset. Ms. Scott discussed these behaviors with the defendant, who relayed them to his

attorney and Doctor Haynes. Ms. Scott did not know that the defendant was being treated

by Doctor Haynes until one week before trial, which was also when she first spoke to Doctor

Haynes.

Alex Scott, the defendant’s brother and also a Nashville fire fighter, recalled

that the defendant, as a child, “would jump up and scream due to the ‘Thriller’ video of

Michael Jackson . . . [because] it triggered different emotions in [the defendant] at night.”

He also recalled the defendant’s seeing “angels and things of that sort.” As teenagers, Mr.

Scott would enter the defendant’s bedroom, ask to borrow clothes, and leave the defendant’s

room with approval to borrow clothing only to find the defendant angry with him later in the

day with no memory of permitting him to borrow the clothing. On one occasion, Mr. Scott

watched the defendant walk from his bedroom, “pass out” in the hallway, and awake

confused with no memory of leaving his bedroom. Mr. Scott also caught the defendant

urinating into a clothing hamper once. During all of these incidents, the defendant “wasn’t

aware of anything that was taking place.”

When the victim’s allegations came to light and the defendant first left home,

he lived with Mr. Scott for a brief period of time. Mr. Scott’s daughter was two-years-old

at the time, so the defendant was not able to stay there throughout the initial separation. Mr.

Scott recalled that Ms. Hollands initially wanted the family to stay together. After the

allegations appeared in the news, however, any chance of reconciliation disappeared. By

January 2006, Mr. Scott knew the couple would be divorced.

The defendant testified that his career as a fire fighter exposed him to many

traumatic situations. He claimed he had difficulty sleeping, especially when at the fire

station. He said that he suffered nightmares and talking in his sleep as a child, but doctors

told him that he “would grow out of it.” He found his sleep issues “shocking because it’s

like you’re not even in control.”

At the time of the allegations, the defendant claimed that he bore a lot of

responsibilities at home because Ms. Hollands was “one of those career-type women that

want[ed] to work all the time. And when they want to work all the time they don’t ever want

to be home.” When Ms. Hollands confronted him with the victim’s allegations, he was

“shocked [and] upset.” He described the allegations as “confusing” because he could not

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remember anything. The couple decided that it was “a good idea” for the defendant to leave

their home.

Although Ms. Hollands did not want the defendant to tell anyone about the

allegations, the defendant contacted Officer Garrett because he thought Officer Garrett would

know someone who could help. The defendant also expressed concern for the victim. The

defendant testified that, after disclosing the allegations, Officer Garrett assured the defendant

that no one would have to go to court and that the entire incident “wouldn’t be nothing.” The

next day, Officer Garrett contacted the defendant to arrange a meeting with Officer Garrett’s

“good friends.” The defendant claimed that Officer Garrett did not tell him that the “friends”

were actually Metro Detectives Robinson and Cooley.

The defendant spoke with Officer Garrett’s “friends” in the parking lot of the

fire station. When asked if the men identified themselves as police officers, the defendant

said, “They may have. I don’t know.” The defendant testified that he only told the men what

Ms. Hollands had told him happened. He denied any personal recollection of the incident

that the victim alleged to have occurred at his mother’s home. He, likewise, claimed that the

allegations concerning the computer and lying on top of the victim were new incidents never

before reported until the time of trial.

The defendant testified that his primary care physician referred him to Doctor

Haynes for treatment of his sleep problems. He denied that his seeking treatment from

Doctor Haynes had anything to do with creating a defense to the charges. The defendant said

that he, in fact, did not know that parasomnia was a sleep disorder until sometime in July

2006 when first diagnosed by Doctor Haynes.

The defendant denied committing any of the acts alleged by the victim. He

denied hiding in the victim’s closet or trying to pull off her towel. He denied knowing that

Officer Garrett’s friends were police officers. The defendant also denied telling a supervisor

that he was touching the victim and claimed that the supervisor probably had him confused

with his brother, Alex, who also had a daughter. In summary, the defendant adamantly

denied touching the victim in a sexual manner at any time.

In rebuttal, the State presented the testimony of Manuel Fonseca, a District

Chief with the Nashville Fire Department. Chief Fonseca testified that he became acquainted

with the defendant when the defendant was a “traveler” fire fighter who worked temporarily

in his station from January to September 2002, when the victim was 11 years old. Chief

Fonseca recalled that no issues arose concerning the defendant’s sleep habits or behavior

while at work. One day, however, as Chief Fonseca routinely asked the group about their

stress levels and their lives away from work, the defendant said, “I have sex with my

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daughter.” Chief Fonseca reported the statement to hissupervisor who dismissed it as a joke.

Chief Fonseca also documented the remark in his log book, but he said that the “documents

[were] long gone” by the time of trial.

On cross-examination, Chief Fonseca testified that he saw the defendant

regularly, did not know he had a brother who also worked for the department, and, therefore,

had not confused the brothers. He said that the defendant’s statement had always bothered

him. When Chief Fonseca saw the news report of the defendant’s arrest, he immediately

telephoned the District Attorney General’s Office to inform them of the defendant’s

statement.

Following the completion of Chief Fonseca’s testimony, the defendant orally

moved for a mistrial or limiting instruction concerning Chief Fonseca’s testimony. The

defendant based these alternative requests upon the State’s failure to disclose the substance

of the defendant’sstatement to Chief Fonseca, which the defendant characterized as “surprise

evidence.” The State argued that Chief Fonseca had been listed as a potential witness and

that there was no requirement to disclose the nature of his testimony in advance of trial. See

Tenn. R. Crim. P. 16(a)(2) (Rule 16 does not “authorize discovery of statements made by

[S]tate witnesses.”). The trial court denied the defendant’s request for a mistrial and his

alternative request to limit the evidence with a curative instruction.

The jury convicted the defendant of simple assault, a Class A misdemeanor,

in counts one, two, and four. In counts three and five, the jury convicted the defendant of

attempted sexual battery by an authority figure and attempted sexual battery, respectively.

At the return of the verdicts, the court and parties noted that count two would merge with

count four and that count three would merge with count five. At sentencing, however, the

trial court entered separate judgments and sentences for each count, failing to merge these

alternative counts. The court imposed sentences of six months for each assault conviction,

two years for the attempted sexual battery by an authority figure conviction, and 11 months

and 29 days for the attempted sexual battery conviction. The transcript reflects that the trial

court ordered the sentences to be served consecutively to one another, for a total effective

sentence of four and one-half years, with six months to serve in the workhouse followed by

four years’ probation. The judgments, however, reflect a total effective sentence of three

years’ split confinement consisting of six months’ incarceration in the local workhouse

followed by two and one-half years’ probation.

4

We discern that the discrepancies may be related to the trial court’s attempt to merge the 4

alternative counts. The imposition of concurrent sentences, however, does not accomplish a merger of

convictions. We will address these discrepancies further in our discussion of the defendant’s sentencing

(continued...)

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On appeal, the defendant contends that the trial court erred by denying his

motion to suppress his statement to Detectives Robinson and Cooley and by denying his

motion for mistrial based upon Chief Fonseca’s rebuttal testimony. He also contends that the

evidence is insufficient to support his convictions and that a fatal variance between the

indictment allegations and the proof at trial occurred with respect to counts three and five.

The defendant argues that the trial court erroneously limited his examination of witnesses

concerning their feelings about the defendant’s placement on the sexual offender registry.

As to sentencing, the defendant urges this court to reverse the trial court’s imposition of

consecutive sentences and denial of full probation. The State concedes that the trial court

erroneously imposed consecutive sentences and failed to merge count two with count four

and count three with count five in light of their alternative allegations. In all other respects,

the State asks this court to affirm the defendant’s convictions.

Suppression of Statement

The defendant filed a pretrial motion to suppress his statement made to

Detectives Robinson and Cooley, alleging that the detectives’ surreptitious recording of his

statement made via his contacting Officer Garrett as a friend violated his rights. The State

argues that the totality of the circumstances shows that the defendant’s confession was

voluntary and that the trial court’s denial of the motion to suppress should be affirmed.

At the January 26, 2007 evidentiary hearing, Officer Garrett testified that he

“got home one evening and [he] received a phone call from [the defendant] and [the

defendant] wanted to talk to [him] about a problem . . . between [the defendant] and his stepdaughter.” When the defendant came to Officer Garrett’s home, he admitted

“inappropriate[ly] touching hisstep-daughter.” After discussing the victim’s allegations “for

about a minute or so,” Officer Garrett stopped the defendant and advised the defendant of

his status as a court officer and reserve officer and told the defendant, “[w]hat you are telling

me it cannot stop here.” The defendant told Officer Garrett that he needed help. Officer

Garrett and the defendant planned to meet the next day at the Davidson County Criminal

Justice Building where Officer Garrett told the defendant he would take the defendant to

someone for help.

The defendant then left Officer Garrett’s home. Later that evening, the

defendant telephoned Officer Garrett and told him that after talking to his wife, “they just

decided not to do anything about [the allegations], just to forget it.” Officer Garrett told the

defendant that he could not do that, and Officer Garrett contacted Detective Robinson the

(...continued) 4

issues.

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next day.

Officer Garrett telephoned the defendant to tell him that Detective Robinson

wanted to meet with him. During his conversation with the defendant, Officer Garrett

warned the defendant that counseling was not enough and that the defendant needed to talk

to the police. The defendant then agreed to talk to Detective Robinson.

On cross-examination, Officer Garrett said that he had known the defendant

for 10 or 12 years and that the defendant knew that he was a court officer. Officer Garrett

did not discuss with the defendant his Miranda rights because the defendant contacted him

and Officer Garrett did not interrogate the defendant at any time. Although the defendant

initially told Officer Garrett to “forget” about their conversation, the defendant “would call

[Officer Garrett] occasionally and want to know . . . what [the detectives] were going to do

about [his case].” Officer Garrett admitted that he advised the defendant to “shoot straight”

with Detective Robinson and that Detective Robinson “would take care of” the defendant.

Detective Robinson was working as an investigator with the Metro Sex Crimes

Unit when Officer Garrett contacted him on October 27, 2005, concerning the defendant’s

report that the defendant inappropriately touched the victim. After substantiating Officer

Garrett’s report via a controlled telephone call between the defendant and Officer Garrett,

Detectives Robinson and Cooley went to the fire station to interview the defendant. The

detectives identified themselves as police officers and informed the defendant that he was

not under arrest. During the recorded interview, the defendant made inculpatory admissions

concerning five separate incidents of touching the victim. The defendant admitted that “he

could have put his hand inside [the victim’s] skin just a little bit inside her vagina.” The

defendant spoke freely with the detectives and did not request a lawyer or stop the interview

at any time. The detectives extended no promises of leniency or help to the defendant,

although they did stress the importance of the defendant’s cooperation.

At the evidentiary hearing, the defendant conceded that the case presented no

issue concerning advising him of his rights via Miranda, but he argued that his statement was

involuntary due to the circumstances surrounding the interview that created “extreme undue

influence” by the detectives. The State argued that the defendant voluntarily spoke with the

detectives and that the detectives did not exert any influence during the interview. The trial

court found that the defendant’s statement did not result from any threats or inducements by

the detectives and was, therefore, voluntary.

When reviewing a trial court’s findings of fact and conclusions of law on a

motion to suppress evidence, we are guided by the standard of review set forth in State v.

Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in

-13-
a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at

23. When the trial court does not set forth its findings of fact upon the record of the

proceedings, however, the appellate court must decide where the preponderance of the

evidence lies. Fields v. State, 40 S.W.3d 450, 457 n. 5 (Tenn. 2001). As in all cases on

appeal, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view of

the evidence and all reasonable and legitimate inferences that may be drawn from that

evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978

S.W.2d 861, 864 (Tenn. 1998)). We review the trial court’s conclusions of law under a de

novo standard without according any presumption of correctness to those conclusions. See,

e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299

(Tenn. 1999).

We are mindful of the well-settled principle that a confession must “be free and

voluntary, and it must neither be extracted by any sort of threats or violence nor obtained by

any direct or implied promises,” nor by the exertion of any improper influence or police

overreaching. Bram v. United States, 168 U.S. 532, 542-43 (1897). The issue of

voluntariness requires the trial judge to focus on whether the accused’s will to resist making

a confession was overborne. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). When

considering the voluntariness of a confession, this court must examine the totality of the

circumstances surrounding the confession to determine “‘whether the behavior of . . . law

enforcement officials was such as to overbear [the defendant’s] will to resist and bring about

confessions not freely self-determined.’” Id. (quoting and adopting the standard set forth in

Rogers v. Richmond, 365 U.S. 534, 544 (1961)).

The evidence in this case does not preponderate against the trial court’s

findings. The defendant contacted Officer Garrettseeking advice. Early in the conversation,

Officer Garrett warned the defendant that he was obliged to relay the defendant’s report to

law enforcement personnel. The defendant voluntarily engaged in the interview with

Detectives Robinson and Cooley. During the interview, the defendant freely admitted

inappropriately touching the victim on several occasions. The defendant’s statement was not

induced by any promises or threats. Relative to the circumstances of the controlled telephone

call, any statement made by the defendant during the call only served to substantiate Officer

Garrett’s report to the detectives, and the substance of the statement was not admitted at trial.

Accordingly, we conclude that the trial court correctly denied the motion to suppress.

Mistrial/Limiting Instructions

Next, the defendant contendsthat the trial courtshould have granted hisrequest

for a mistrial based upon Chief Fonseca’s rebuttal testimony that the defendant had told

Chief Fonseca that he had “sex with [his] daughter.” The defendant argues that the State

-14-
violated discovery rules by failing to provide the statement prior to trial; that the State

violated notice requirements of Tennessee Rule of Evidence 404(b); and that the State

violated notice requirements of Rule 608(b). The State argues on appeal that the defendant

waived his discovery and Rule 404(b) arguments by failing to cite to authority, that Rule

608(b) is inapplicable to the circumstances of this case, and that the evidence was admissible

as a statement against interest.

Whether to grant a mistrial is an issue entrusted to the sound discretion of the

trial court. See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996).

“Generally a mistrial will be declared in a criminal case only when there is a ‘manifest

necessity’ requiring such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443

(Tenn. Crim. App. 1991). The burden of establishing the necessity for mistrial lies with the

party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The

purpose for declaring a mistrial is to correct damage done to the judicial process when some

event has occurred which precludes an impartial verdict.” Id. On appeal, this court will

disturb a trial court’s denial of a motion for mistrial only when there is an abuse of discretion.

State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); Williams, 929 S.W.2d at 388. An abuse

of discretion occurs when the trial court applies an incorrect legal standard or reaches a

conclusion that is “illogical or unreasonable and causes an injustice to the party

complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185

S.W.3d 319, 337 (Tenn. 2006)); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

At trial, the State presented Chief Fonseca’s testimony without

contemporaneous objection by the defendant. Likewise, the defendant made no request for

a jury-out hearing pursuant to any rules of evidence. Following direct examination of Chief

Fonseca, the defendant vigorously cross-examined him as well. Not until the completion of

Chief Fonseca’s testimony did the defendant move for a mistrial or, alternatively, a limiting

instruction concerning histestimony. During the bench conference concerning the testimony,

the defendant only objected to the testimony on the basis of lack of discovery via Tennessee

Rule of Criminal Procedure 16.

At the motion for new trial hearing, however, the defendant argued that the

evidence should have been excluded for the State’s failure to comply with the notice

requirements and the trial court’s failure to conduct a jury-out hearing via Rules of Evidence

404(b) and 608(b). The State argued that the evidence was admissible in rebuttal to refute

the defendant’s claim of lack of memory and that the evidence impeached the defendant’s

testimony that he never admitted inappropriate conduct with the victim to any supervisor.

The State also argued that any error in admitting the testimony was harmless in light of the

convictions for simple assault relating to the only two incidents that occurred while the

defendant claimed to be asleep. The trial court denied the defendant’s motion for new trial

-15-
without discussion.

We emphasize that our focus, as directed by the defendant’s framing of the

issue, is upon whether the trial court erred by denying a mistrial or a limiting instruction, not

whether the evidence was in itself inadmissible. Indeed, the defendant generally forfeited

a claim of erroneous admission of the evidence by failing to timely object or move to strike

at the time the State elicited the testimony. See Tenn. R. Evid. 103(a)(1) (“Error may not be

predicated upon a ruling which admits evidence unless . . . a timely objection or motion to

strike appears of record, stating the specific ground of objection if the specific ground was

not apparent from the context . . . . ”).

The State was not required to disclose the substance of the defendant’s

statement to Chief Fonseca prior to trial because the defendant’s statement to Chief Fonseca

was not a statement “made before or after arrest in response to interrogation.” See Tenn. R.

Crim. P. 16(a)(1)(A). Therefore, the trial court did not abuse its discretion by denying a

mistrial. We further agree with the State that any issue raised by the defendant relative to

Tennessee Rule of Evidence 404(b) or Tennessee Rule of Criminal Procedure 16 has been

waived for failure to cite to authority in support of his argument in his brief. See Tenn. R.

Ct. Crim. App. 10(b) (“Issues which are not supported by the argument, citation to

authorities, or appropriate references to the record will be treated as waived.”).

As to the failure of the trial court to impart to the jury instructions for limiting

the use of Chief Fonseca’s testimony, the defendant requested limiting instructions based

upon a violation of Rule 16 discovery. We see no rationale for limiting instructions based

upon a claimed violation of discovery.

5

Had a timely request been grounded in Tennessee Rules of Evidence 613 and/or 404(b), limiting 5

instructions may have been warranted. If the State in its cross-examination of the defendant “afforded him

an opportunity to explain or deny” the prior statement, the rebuttal testimony might have been defensible as

impeachment evidence pursuant to Rule 613. In such a situation, the opponent of the evidence is entitled to

a jury instruction that the evidence may be used only for impeachment, or credibility, purposes. See State

v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000); Tenn. R. Evid. 105. The defendant in the present case, however,

forfeited a claim for impeachment-limiting instructions when he failed, prior to the case being submitted to

the jury, to base his bid for instructions upon Rule 613. Smith, 24 S.W.3d at 279-80.

Also, had the State proffered the rebuttal testimony as substantive evidence of the

defendant’s guilt, Tennessee Rule of Evidence 404(b) could have been imposed, if not to exclude the

testimony, to garner an instruction to prevent its use as propensity evidence. See, e.g., State v. Gilley, 297

S.W.3d 739, 759-60 (Tenn. Crim. App. 2008) (considering the trial court’s use of a limiting instruction in

determining the relationship of the probative value of the evidence against the claim of unfair prejudice

pursuant to Rule 404(b)(4)); see State v. Leach, 148 S.W.3d 42, 48 (Tenn. 2004) (“The trial court properly

(continued...)

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Variance

The defendant alleges that a variance exists between the facts alleged in counts

three and five of the indictment and the evidence at trial. He contends that the victim never

alleged any inappropriate touching at the computer until she testified to those facts at trial.

Because the computer incident, as testified to by the victim, did not include any allegation

that the defendant penetrated the victim, the defendant argues that the evidence at trial did

not correspond to the rape allegation in count five. The State argues that no variance

occurred and that the indictment stated with sufficient specificity the acts alleged to have

occurred.

A variance results when the evidence at trial does not correspond to the

elements of the offense alleged in the charging instrument. State v. Keel, 882 S.W.2d 410,

416 (Tenn. Crim. App. 1994). In many such cases, the evidence establishes the commission

of an offense different from the offense alleged in the charging instrument. See id. The

variance rule is predicated upon the theory that an accused cannot be charged with one

offense and convicted of a completely different offense. See id.

In the past, Tennessee has followed “a rather stringent variance rule, and if a

person or thing necessary to be mentioned in an indictment is described with greater

particularity than is requisite, such person or thing must be proved exactly as described in the

indictment.” Bolton v. State, 617 S.W.2d 909, 910 (Tenn. Crim. App. 1981). “The policy

now followed in this and in most other jurisdictions,” however, “is that before a variance will

be held to be fatal it must be deemed to be material and prejudicial.” State v. Moss, 662

S.W.2d 590, 592 (Tenn. 1984). Moreover,

[a] variance between an indictment and the proof in a criminal

case is not material where the allegations and proof substantially

correspond, the variance is not of a character which could have

misled the defendant at trial and is not such as to deprive the

accused of his right to be protected against another prosecution

for the same offense.

Id.

(...continued) 5

instructed the jury that the evidence could be considered for the limited purpose [pursuant to Rule 404(b)]

of determining whether it tends to show a motive.”). Again, however, the defendant in the present case did

not base his otherwise timely motion for a limiting instruction on Rule 404(b). As such, he waived a claim

that the instruction should have been given on this basis.

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In this case, the indictment contains very general allegations occurring over a

broad time-frame. Count three of the indictment alleged that “between January 17, 2004 and

November 1, 2005,” the defendant “did intentionally engage in unlawful sexual contact with

[the victim], a child thirteen (13) years of age or older but less than eighteen (18) years of

age, and at the time of the offense [the defendant] had parental or custodial authority over

[the victim].” Count five of the indictment alleged that within those same dates the

defendant “did intentionally, knowingly, or recklessly engage in unlawfulsexual penetration

of [the victim], and force or coercion was used to accomplish the act.” The defendant did

not file any motion for bill of particulars in an attempt to narrow the allegations of each

count.

At trial, the victim testified that the defendant tried to reach inside her

underwear to touch her genital area while she sat on his lap at the computer. Although the

victim admitted that she had not specifically disclosed this incident prior to trial, Ms.

Hollands testified regarding her concern about the defendant’s requiring the victim to sit on

his lap to use the computer and the defendant’s reaction to her concerns. The defendant

admitted several instances of inappropriate touching in his statement to investigators. At the

close of proof, the State elected the computer incident in support of the allegations in counts

three and five. In consideration of the defendant’s motion for judgments of acquittal, the trial

court noted that the proof had not established an allegation of rape as to count five and

granted the defendant’s motion for judgment of acquittal, in part, by reducing that charge to

attempted sexual battery. The allegations made via the election narrowly defined the

evidence relied upon, and the defendant was not misled by the proof in any manner. See

State v. March, 239 S.W.2d 576, 591 (Tenn. Crim. App. 2008) (holding that variance was

not fatal when defendant was not misled), perm. app. denied (Tenn. 2009). Under the

circumstances presented in this case, we conclude that the evidence in this case “substantially

correspond[ed]” to the allegations in the indictment.

Sufficiency

We review the defendant’s claim of insufficient evidence mindful that our

standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324

(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard

applies to findings of guilt based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011).

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When examining the sufficiency of the evidence, this court should neither reweigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

Questions concerning the credibility of the witnesses, the weight and value of the evidence,

as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State

the strongest legitimate view of the evidence contained in the record as well as all reasonable

and legitimate inferences which may be drawn from the evidence. Id.

Tennessee Code Annotated section 39-13-101(a)(3) defines assault as

“[i]ntentionally or knowingly caus[ing] physical contact with another and a reasonable person

would regard the contact as extremely offensive or provocative.” See T.C.A. § 39-13-

101(a)(3).

Sexual battery by an authority figure is the “unlawful sexual contact with a

victim by the defendant . . . [when] . . . [t]he victim was, at the time of the offense, thirteen

(13) years of age or older but less than eighteen (18) years of age [and] [t]he defendant had,

at the time of the offense, parental or custodial authority over the victim and used such

authority to accomplish the sexual contact.” See id. § 39-13-527(a)(1)(B). Sexual battery

is the “unlawful sexual contact with a victim by the defendant . . . [when] accomplished by

force or coercion.” See id. § 39-13-505(a)(1). “‘Sexual contact’ includes the intentional

touching of the victim’s . . . intimate parts, or the intentional touching of the clothing

covering the immediate area of the victim’s . . . intimate parts, if that touching can be

reasonably construed as being for the purpose of sexual arousal or gratification.” See id. §

39-13-501(6). Additionally, “‘[i]ntimate parts’ includesthe primary genital area, groin, inner

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

“A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense . . . acts with intent to complete a course of action or cause

a result that would constitute the offense, under the circumstances surrounding the conduct

as the person believes them to be, and the conduct constitutes a substantial step toward

commission of the offense.” See id. § 39-12-101(a)(3).

In our view, the evidence is sufficient to support the defendant’s convictions

for assault, attempted sexual battery by an authority figure, and attempted sexual battery.

With respect to count one, the evidence showed that the victim awoke to find the defendant

lying on top of her. Although she could not remember whether the defendant fondled or

attempted to fondle her because she had been asleep, the evidence clearly supports a jury’s

finding of “extremely offensive or provocative” physical contact. Likewise, the evidence

supports the jury verdict’s of assault in counts two and four based upon proof that the victim

awoke to find the defendant’s finger touching the inside area of her labia. The State alleged

-19-
these counts, however, as alternatives. Accordingly, the trial courtshould have merged them.

The State also alleged alternative theories of sexual battery by an authority figure and

attempted sexual battery by force or coercion in counts three and five. The proof showed that

the defendant attempted to push aside the victim’s underwear to attain skin-to-skin contact

with her genital area while the victim sat on the defendant’s lap to use the computer. We

conclude that the evidence is also sufficient to support the convictions of attempted sexual

battery by an authority figure and attempted sexual battery. Because these counts alleged

alternative theories, however, counts three and five should have also merged.

Limitation of Examination Concerning Sexual Offender Registry

The defendant argues that the trial court erroneously limited his examination

of witnesses concerning their feelings about the defendant’s sexual offender registry

supervision if convicted of the charged offenses. The trial court ruled pretrial that evidence

of any witnesses’ views concerning sexual offender registry supervision was irrelevant and,

therefore, inadmissible. The State contends that the trial court correctly excluded such

evidence because its consideration by a jury in a non-capital trial is precluded by Tennessee

Code Annotation section 40-35-201(b).

The decision to admit or exclude evidence generally lies within the sound

discretion of the trial court. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999); State v. Jackson,

52 S.W.3d 661, 669 (Tenn. Crim. App. 2001); State v. Carroll, 36 S.W.3d 854, 867 (Tenn.

Crim. App. 1999), perm. app. denied (Tenn. 2000). On appellate review of a trial court’s

decision to admit or exclude evidence on the basis of relevance, an appellate court may

disturb the lower court’s ruling only if there has been an abuse of discretion. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Baker, 785 S.W.2d 132, 134 (Tenn.

Crim. App. 1989).

We conclude that the trial court committed no abuse of discretion by excluding

examination of witnesses regarding their views on the defendant’s sexual offender registry

supervision. Code section 40-35-201(b) provides “[i]n all criminal cases, except for capital

crimes . . . , the judge shall not instruct the jury, nor shall the attorneys be permitted to

comment at any time to the jury, on possible penalties for the offense charged nor all lesser

included offenses.” The statutory provisions concerning lifetime community supervision of

certain sex offenders are mandatory. See T.C.A. § 39-13-524 (“any person who . . . [commits

or attempts to commit certain enumerated offenses] shall receive a sentence of community

supervision for life”). Likewise, a defendant’s compliance with the sexual offender registry

6

Code section 39-13-524 mandates lifetime community supervision following a conviction of rape, 6

(continued...)

-20-
requirements following release on parole is also mandatory. See generally id. §40-39-102.

In our view, any testimony concerning the defendant’s supervision if convicted or any

testimony concerning a witness’s opinion regarding such supervision was irrelevant and

inadmissible.

We further note that the defendant’s reliance upon Ward v. State, 315 S.W.3d

461 (Tenn. 2010), is misplaced. In that case, our supreme court held that lifetime community

supervision is a punitive consequence of a conviction of certain sexual offenses and,

therefore, a defendant must be informed of the consequence of lifetime community

supervision when entering a guilty plea to an applicable offense. See Ward, 315 S.W.3d at

474. The case in no way supports the principle that a jury must be informed of the

consequences of a sexual offense conviction as urged by the defendant in this case. The trial

court correctly denied questions concerning such evidence.

Sentencing

In his final issue, the defendant contends that the trial court erred by imposing

consecutive sentences in his case and by denying him full probation. In view of the trial

court’s failure to merge the attempted sexual battery by an authority figure and the attempted

sexual battery convictions, we agree with the State that the trial court erroneously ordered

consecutive service. See T.C.A. § 40-35-115(b)(5) (allowing consecutive sentencing for

offenders convicted of “two (2) or more statutory offenses involving the sexual abuse of a

minor” under certain circumstances). We also discern no other basis to impose consecutive

sentences in this case. See id. That being said, on remand the trial court shall enter

judgments reflecting merger of counts two and four and counts three and five with the

imposition of concurrent sentences in counts one, two, and three. The defendant does not

challenge the length of the sentences imposed by the trial court. Accordingly, following

remand, the total effective length of sentence imposed is now two years.

The defendant also claims that the trial court should have granted him full

probation. The trial court sentenced the defendant to a term of probation in counts two

through five. The trial court sentenced the defendant to a six month period of incarceration

only in count one based upon its finding that some period of incarceration was necessary to

avoid depreciating the seriousness of the offenses. The State argues that the trial court

(...continued) 6

aggravated rape, aggravated sexual battery, and child rape. Thus, lifetime supervision was potentially

applicable only to the defendant’s rape charges. That being said, the defendant’s conviction of attempted 

sexual battery by an authority figure will require compliance with sexual offenderregistry requirements upon

the completion of his sentence. See T.C.A. § 40-39-102(5)(A)(xviii).

-21-
correctly denied full probation and urges this court to affirm a sentence of split confinement

consisting of six months’ incarceration followed by probation for the remaining portion of

the two-year sentence.

When considering challenges to the length and manner of service of a sentence

this court conducts a de novo review with a presumption that the determinations of the trial

court are correct. T.C.A. § 40-35-401(d)(2006). This presumption, however, “is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). The appealing party, in this case the defendant, bears the burden of

establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n

Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that

the trial court gave “due consideration and proper weight to the factors and principles which

are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are

adequately supported in the record, then we may not disturb the sentence even if we would

have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991). In the event the record fails to demonstrate the required consideration by the trial

court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing decision, the trial court was required to consider:

(1) The evidence, if any, received at the trial and the sentencing

hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing

alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114;

(6) Any statement the defendant wishes to make in the

defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant . . . in determining the sentence

alternative or length of a term to be imposed.” Id. § 40-35-103(5).

Because, in this instance, the sentence imposed is ten years or less, the trial

court was required to consider probation as a sentencing option. See T.C.A. § 40-35-303(a),

(b). Nevertheless, the defendant bears the burden of establishing his “suitability for full

-22-
probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-

35-303(b); State v. Bingham, 910 S.W.2d 448, 455-56 (Tenn. Crim. App. 1995), overruled

in part on other grounds by Hooper, 29 S.W.3d at 9-10. In consequence, the defendant must

show that probation will “subserve the ends of justice and the best interest[s] of both the

public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)

(quoting Hooper v. State, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by Hooper,

29 S.W.3d at 9-10.

Among the factors applicable to probation consideration are the circumstances

of the offense; the defendant’s criminal record, social history, and present condition; the

deterrent effect upon the defendant; and the best interests of the defendant and the public.

State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). The trial court denied the defendant’s

request for full probation based upon its finding that “some confinement is necessary to avoid

depreciating the seriousness of the offense, and to act as a deterrent to others.” We conclude

that the record supports the trial court’s denial of full probation.

Conclusion

The trial court correctly denied the defendant’s motion to suppress, motion for

mistrial, and motion for judgments of acquittal based upon variance. The trial court properly

excluded testimony concerning witnesses’ views regarding the sexual offender registry

requirements. The evidence is sufficient to support the convictions. The trial court correctly

denied full probation in this case. The trial court did err, however, by ordering consecutive

sentences and by failing to merge counts two and four and counts three and five.

Accordingly, on remand, the trial court shall enter judgments reflecting merger of these

counts and the imposition of concurrent sentences in the remaining counts (one, two, and

three). In all other respects, the judgments of the trial court are affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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