IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 2, 2019 Session

STATE OF TENNESSEE v. NATHAN ALLEN WALLACE

Direct Appeal from the Circuit Court for Tipton County

No. 9244 Joseph H. Walker, III, Judge

No. W2018-01649-CCA-R3-CD

A Tipton County jury convicted the Defendant, Nathan Allen Wallace, of rape, aggravated 

statutory rape, contributing to the delinquency of a minor, and incest, and the trial court 

sentenced him to eight years in the Tennessee Department of Correction. On appeal, the 

Defendant asserts that the trial court erred when it: (1) admitted prior statements by the 

victim into evidence; (2) declined to enforce a subpoena for the victim’s DCS record; (3) 

admitted expert testimony on the subject of “grooming”; and (4) limited his 

cross-examination of the victim. The Defendant also contends that the evidence is 

insufficient to support his convictions and that his request for a suspended sentence should 

have been granted. After a thorough review of the record and the applicable law, we 

affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL and NORMA MCGEE OGLE, JJ., joined.

Blake D. Ballin and Richard S. Townley, Memphis, Tennessee, for the appellant, Nathan 

Allen Wallace.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Mark E. Davidson, District Attorney General; and James Walter 

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

OPINION

I. Facts 

This case arises from the Defendant’s rape of the victim, his fifteen-year-old 

daughter, while she was intoxicated. Based on this conduct, a Tipton County grand jury 

indicted the Defendant for rape, aggravated statutory rape, contributing to the delinquency 

02/14/2020
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of a minor, and incest. The Defendant entered a best interest plea to the incest and 

aggravated statutory rape charges, and the State agreed to dismiss the remaining charges; 

the Defendant subsequently filed a motion to withdraw his plea, alleging that it was based 

on incorrect information he had received regarding the sex offender registry. The trial 

court granted his motion to withdraw the plea. Prior to trial, the Defendant subpoenaed 

the victim’s sealed records kept by the Department of Children’s Services (“DCS”), 

requesting an in camera review of the records on the basis that they contained 

exculpatory information or information about the victim’s accusations against other 

individuals. The trial court conducted an in camera review of the sealed DCS record 

and concluded that they did not contain exculpatory material or information about the 

victim accusing anyone other than the Defendant of sexual abuse. The trial court 

ordered that the records remain under seal and thus declined to enforce the subpoena. 

A. Trial

The following evidence was presented at the Defendant’s trial: Zachary Tucker 

testified that he had known the Defendant since 2010 and that he also knew the victim, 

the Defendant’s daughter. Mr. Tucker estimated the victim was fourteen years old. 

Mr. Tucker was often at parties at the Defendant’s house during the summer of 2016, and 

the victim was occasionally there as well. Mr. Tucker stated that the victim drank 

alcohol at these parties. 

Chris Ellwood testified that he was an investigator with the Atoka Police 

Department, located in Tipton County, where the Defendant’s residence was also located. 

Investigator Ellwood first became aware of the allegations against the Defendant in 

January 2017; he was contacted by the victim’s mother, Crystal Draffin. As a result of 

Ms. Draffin’s contact, Investigator Ellwood contacted DCS, and then he met with DCS 

Investigator Teresa Cook and Ms. Draffin at Ms. Draffin’s home. The victim was also 

present at the meeting. Following the meeting, a forensic interview was scheduled, and 

the victim gave a formal statement at the February 1, 2017 interview.

Following the interview, the Defendant was given notice from DCS to cease 

contact with the victim. In response to that notice, the Defendant came to the Atoka 

Police Department to make contact with Investigator Ellwood. The Defendant spoke to 

Investigator Ellwood regarding his family history with Ms. Draffin and their custody 

issues related to the victim. Because Investigator Ellwood was aware that the victim 

had accused the Defendant of rape, he advised the Defendant of his Miranda rights. 

The Defendant indicated that the DCS issues were related to Ms. Draffin using marijuana 

with the victim. 

Investigator Ellwood agreed that he had met with the victim and/or Ms. Draffin 
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numerous times, and he had also been present at several interviews where the victim gave 

a statement. Defense counsel objected to Investigator Ellwood’s testimony with regard 

to what was said in the victim’s multiple statements. Investigator Ellwood, without 

testifying to what the victim said, testified that there were not any inconsistences in the 

victim’s multiple accounts given about the rape. 

On cross-examination, Investigator Ellwood stated that the Defendant told him 

that the victim had been present at the parties described by Mr. Tucker. The Defendant 

told Investigator Ellwood that he had to fight with the victim about dressing appropriately 

for school and regularly attending school. He stated that the victim saw a therapist and 

had two boyfriends.

Crystal Draffin testified that she entered into a relationship with the Defendant in 

1998 when she was fifteen years old and the Defendant was seventeen years old. The 

two never married but had a child together, the victim, in 2001. The couple separated in 

2005 because they had “grown apart.” Ms. Draffin and the Defendant, with the aid of 

an attorney, divided their custody of the victim in a parenting plan; generally, the victim 

stayed with Ms. Draffin during the week and with the Defendant on the weekends. 

Between 2005 and 2016, Ms. Draffin and the Defendant were in several relationships 

with other people, and the Defendant was married for a few years. Ms. Draffin also 

remarried and divorced, and then got remarried again to her present husband, Mike 

Draffin, in 2011.

Ms. Draffin stated that her third husband, Mr. Draffin, was a good father and that 

her children, including the victim, loved him. Mr. and Ms. Draffin’s blended family 

consisted of six children of which the victim was the eldest. Describing the victim’s 

behavior from 2017 until the time of trial, Ms. Draffin testified that the victim was doing 

well in school and had graduated from high school with honors and had also obtained her 

driver’s license. Ms. Draffin testified that victim had always been shy and quiet since 

her early childhood and recalled that she saw a change in the victim in 2015 and/or 2016. 

The victim first began listening to music about drugs and prostitution. Then she 

attempted to “hurt” herself by ingesting a “handful” of Advil while at the Defendant’s 

house.

In July 2016, the victim, the Defendant, Ms. Draffin, Mr. Draffin, and a DCS 

worker met at the DCS office to discuss that the victim had tried to harm herself. 

During the meeting, the victim stated that she wanted to stay at the Defendant’s house 

with him. The victim also told the DCS worker that she had obtained the pills from Ms. 

Draffin’s house, in order to protect the Defendant from getting in trouble. The victim 

was admitted to a treatment center for one week and then went to the Defendant’s home 

“permanently” after her release from the treatment center on July 17, 2016. Ms. Draffin 
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stated that she felt that the victim could make her own decisions about where to live, and 

Ms. Draffin wanted her to be comfortable.

On January 23, 2017, Ms. Draffin learned of the Defendant’s crimes that had 

occurred sometime after July 17, 2016, when the victim went to live with the Defendant. 

Ms. Draffin learned of his crimes through pictures and videos of the victim found on the 

victim’s cell phone. Ms. Draffin recalled that on January 23, 2017, the victim told her 

of the Defendant’s crimes. Ms. Draffin immediately contacted law enforcement.

Dr. Lisa Piercy testified as an expert in the field of pediatrics and child abuse,

which encompassed child sexual abuse, based on her medical specialty in the area of 

diagnosing child maltreatment. Prior to Dr. Piercy taking the witness stand and outside 

the presence of the jury, defense counsel objected to her proposed testimony on the “idea 

of grooming,” arguing that it was a “psychological idea” not contained in her physical 

examination report. Because it was not contained in the report, defense counsel argued 

that he had not procured an expert to testify on the Defendant’s behalf with regard to the 

subject. He additionally argued that the grooming concept tended to show that the 

victim fit a certain profile of a sexually abused child based on the Defendant’s efforts to 

groom her, and therefore tended to show the victim was more likely telling the truth. 

This, he argued, amounted to “bolstering” of the victim’s testimony before she actually 

testified. The State argued that the absence of information about child grooming in the 

expert’s report was not a basis for exclusion. The State further responded that Dr. 

Piercy would not be giving an opinion as to the victim’s truthfulness but only the 

consistency of her medical findings with the victim’s statements to her. The trial court 

stated that it would allow testimony about child grooming but stated it would reserve 

judgment as the evidence developed. The trial court commented that this testimony 

seemed to be “common sense” and not that of which an expert opinion was required.

Dr. Piercy testified that she evaluated and examined the victim in this case on 

February 14, 2017. Dr. Piercy generated a report based on their meeting. The victim 

told Dr. Piercy that the Defendant had, in the summer of 2016, gotten her drunk and done 

“some stuff” to her. The victim listed at least five brands of alcohol given to her by the 

Defendant, and she stated that the Defendant had “rolled a joint” for the victim to smoke. 

The victim told Dr. Piercy that, on one occasion when the Defendant was hosting a party 

at his house, she got drunk and could not walk so the Defendant put her in bed. The 

victim fell asleep and woke to the Defendant undressing her. The Defendant took off 

the victim’s underwear and then vaginally penetrated her with his fingers before inserting 

his penis into her vagina. The victim cried for the Defendant to stop, but he pushed 

inside her harder. This occurred for a few minutes until the Defendant ceased, and the 

victim went to sleep.
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Dr. Piercy performed a physical examination of the victim and stated that the 

condition of the victim’s vagina and hymen were consistent with penile vaginal 

penetration. Dr. Piercy stated that it was common for a child victim not to report the 

sexual abuse right away, as was the case with the victim herein. This was particularly 

true when the perpetrator was an authority figure or close friend or relative. Dr. Piercy 

stated that alcohol was often used by a perpetrator to manipulate a victim to gain favor or 

access to the victim. She described this process as “grooming.” The Defendant 

renewed his objection to this testimony, and the trial court overruled the objection. 

The victim testified that she was fifteen years old in 2016 and that the Defendant 

was her father. In 2016, the victim was going back and forth between her mother’s and 

the Defendant’s house at her choosing. The Defendant lived alone. The victim 

described herself as a “daddy’s girl” until the Defendant’s assault occurred. In 2016, 

when the victim would stay with the Defendant, he would give her alcohol, specifically 

“Fireball,” and allow her to smoke cigarettes and marijuana. He also provided 

psychedelic mushrooms. Other adults attended parties at the Defendant’s house, 

including Mr. Tucker. The victim had her own bedroom there. During his parties, the 

victim was allowed to drink beer through a funnel and play “beer pong.” 

The victim recalled that she took a large amount of pills and was treated at a 

treatment facility in July 2016 as a result. Upon her release, the victim went to live with 

the Defendant. The victim testified that she wanted to wear jeans and t-shirts, but the 

Defendant wanted her to wear clothes that made her look more like a woman. Even 

though she “hated it,” the victim changed into tighter fitting clothing when she stayed at 

the Defendant’s house. In July 2016, the Defendant held another party at his residence,

and the victim got drunk after drinking vodka and beer. The victim became too 

intoxicated to stand up and fell over. She described feeling “very drunk” and not being 

able to see straight. The Defendant carried the victim to her bed where she fell asleep; 

when she awoke the Defendant was removing her clothing. The Defendant removed her 

pants and underwear and put his fingers inside her vagina and rubbed it. The victim was 

scared and struggled to get away from him while the Defendant told her to “stop.” The 

Defendant was breathing heavily. The Defendant put his mouth on the victim’s breast. 

The victim described the Defendant putting his penis inside of her vagina, stating that it 

hurt badly and was “against [her] will.” She felt a tearing sensation in her vaginal area. 

The victim testified that she resisted throughout the encounter and was crying. 

The victim testified that her mattress had blood on it and so a day or two later, the 

victim and the Defendant took the mattress to the shed outside his house. The victim 

remained upset and told the Defendant that she wanted it to be special when she had 

intercourse for the first time; the Defendant replied that he was sorry and did not 

remember what had happened. He also told the victim that if she said anything about 
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the rape, he would be “taken away” for a long time. The victim posted a picture of 

herself on the internet soon after that said, “Please f***ing kill me.” The victim 

testified that she was sad because the Defendant hurt her. A couple days after the rape, 

the Defendant gave the victim a bunny rabbit, a gift she had been wanting for a long time. 

The victim still felt the pain of the rape, but the bunny made her happy and the Defendant 

told the victim he wanted her to feel better. 

On cross-examination, the victim admitted that she had made several statements 

about the rape and that her recall with regards to time periods or dates was not good. 

The victim agreed that she smoked cigarettes without her parents’ knowledge. She 

agreed that she did not tell anyone about the rape in July 2016 and that she stayed with 

the Defendant after the rape but before she made the disclosure to her mother. 

The victim was asked about a series of text messages between herself and the 

Defendant sent after July 2016 but before the rape accusation in January 2017. The 

victim testified about the contents of the messages until the State objected to the 

messages containing the Defendant’s statements to the victim on the grounds that they 

were hearsay. Defense counsel replied that they were not being offered for the truth of 

the matter asserted but to provide context for the victim’s and the Defendant’s 

relationship. The trial court allowed the line of questioning to continue until the State 

objected again on the grounds that the Defendant’s statements made after the July 2016 

rape were made for future use at trial and, as self-serving, uncross-examined hearsay, 

were not admissible. The trial court sustained the objection. The Defendant’s further 

questions of the victim about the Defendant’s statements to her were objected to by the 

State, and trial court sustained the objections. At this point, the trial court advised 

defense counsel that he was repeatedly covering the same ground and should cease 

questioning about the Defendant’s statements in the text messages. The victim agreed 

that she exaggerated stories about staying with her mom or the Defendant with regards to 

rules, bedtimes and drug and alcohol use. The victim recalled many discussions with 

the Defendant about her bedtime and telephone use during the night.

Based upon the evidence presented at trial to the jury, the Defendant was convicted

of rape, aggravated statutory rape, contributing to the delinquency of a minor, and incest. 

The trial court found that the Defendant was a standard offender with a minor criminal 

record of traffic offenses. For the rape conviction, the trial court imposed a sentence of 

eight years; for the aggravated statutory rape conviction, a concurrent sentence of two 

years; for the contributing to the delinquency of a minor conviction, a concurrent sentence 

of eleven months and twenty-nine days; and for the incest conviction, a concurrent 

sentence of three years, for a total effective sentence of eight years. The sentence was to 

be served at 100% as required by statute, Tennessee Code Annotated section 40-35-501. 

As to the issue of probation, the trial court concluded in a written order that the 
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circumstances of the offense, the Defendant being the victim’s father and his behavior 

towards her, determined that an alternative sentence was not warranted. The trial court 

made this conclusion in light of its consideration of the deterrent effect on the Defendant 

and the best interests of the public and the victim. The trial court further concluded that 

probation would not serve the ends of justice or society as a whole. It is from these

judgments that the Defendant now appeals.

II. Analysis

On appeal, the Defendant asserts that the trial court erred when it: (1) admitted 

prior statements by the victim into evidence; (2) declined to enforce a subpoena for the 

victim’s DCS record; (3) admitted expert testimony on the subject of “grooming”; and (4) 

limited his cross-examination of the victim. The Defendant also contends that the 

evidence is insufficient to support his convictions and that his request for a suspended 

sentence should have been granted. 

A. Evidentiary Issues

As stated above, the Defendant raises several issues with regards to the admission 

of evidence. Under Rule 401, “‘Relevant evidence’ means evidence having 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. Rule 402 states, “All relevant evidence is admissible except as provided 

by the Constitution of the United States, the Constitution of Tennessee, these rules, or 

other rules or laws of general application in the courts of Tennessee. Evidence which is 

not relevant is not admissible.” Tenn. R. Evid. 402. Finally, Rule 403 states, 

“Although relevant, evidence 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.” Tenn. R. Evid. 403. “The decision regarding the admissibility 

of [evidence] pursuant to these Rules lies within the sound discretion of the trial court 

and will not be overturned on appeal absent a clear showing of an abuse of that 

discretion.” State v. Young, 196 S.W.3d 85, 105 (Tenn. 2006) (citing State v. Banks, 

564 S.W.2d 947, 949 (Tenn. 1978)).

1. Victim’s Prior Statements

The Defendant asserts that the trial court erred when it admitted into evidence 

Investigator Ellwood’s testimony about the consistency of the victim’s prior statements 

because it amounted to bolstering the victim’s credibility. He additionally asserts that 

Dr. Piercy’s testimony about the victim’s statements to her was inadmissible hearsay and 
8

should have been accompanied by a limiting instruction that the victim’s statements were 

not to be relied on as substantive evidence. The State responds that Investigator 

Ellwood did not testify to the substance of the victim’s prior statements but only that he 

searched for inconsistencies in the statements throughout his investigation as part of 

standard protocol. This, the State argued in response to the Defendant’s objection, was 

part of the State’s effort to show the thoroughness of the investigation into the victim’s 

accusations. The State argues that this was not “impermissible bolstering.” The State 

further responds that Dr. Piercy’s testimony was admissible pursuant to the medical 

records exception to the hearsay exclusion rule. 

During Investigator Ellwood’s testimony about the victim’s multiple statements, 

defense counsel objected to any testimony about the contents of the victim’s statements. 

Defense counsel made no reference to the “bolstering” argument he raises on appeal. 

Without a specific objection to this aspect of the testimony, the trial court did not make a

ruling on the argument and thus, it is not properly preserved for review on appeal. See

Tenn. R. Evid. 103 (requiring an objection to the admission of evidence “stating the 

specific ground of objection if the specific ground was not apparent from the context”). 

Accordingly, the issue is waived.

We turn to the Defendant’s argument that Dr. Piercy’s testimony about the 

victim’s statements to Dr. Piercy during her forensic medical examination was 

inadmissible hearsay and also impermissible bolstering of the victim’s credibility. We 

initially point out that this testimony was merely corroborative of the victim’s testimony, 

and thus no limiting instructive was required. See State v. Jordan, 325 S.W.3d 1, 53 

(Tenn. 2010) (requiring a limiting instruction when an expert testifies to otherwise 

inadmissible hearsay; in Jordan, the hearsay was an out-of-court statement of a sheriff’s 

deputy who did not testify at trial.) Furthermore, we agree with the State that Dr. 

Piercy’s testimony was admissible pursuant to Tennessee Rule of Evidence 803(4) which 

allows for the admission of hearsay statements made for the purpose of medical diagnosis 

or treatment. Dr. Piercy testified that she was examining the victim for the purpose of 

making a medical diagnosis, child sexual abuse. Accordingly, the trial court did not 

abuse its discretion when it admitted this testimony. The Defendant is not entitled to 

relief as to this issue.

2. Sealed DCS Records

The Defendant next contends that the trial court erred when it declined to enforce 

the subpoena of the victim’s sealed DCS records. He contends that the trial court’s in 

camera review of the records did not encompass the victim’s entire DCS file, and that, 

because the Defendant has no knowledge of the records’ contents, he was denied his due 

process rights. The State replies that the Defendant has waived this issue because he did 
9

not ask the trial court to “compel compliance” of the subpoena.

The record indicates that, before trial, defense counsel requested a review of the 

victim’s sealed DCS records to determine whether the records contained exculpatory 

material. Apparently, the trial court conducted an in camera review of the records and 

determined that they did not contain exculpatory material and thus should remain sealed. 

In an order, the trial court stated that the records contained interviews with the victim and 

her family, along with other DCS records, and that the records contained nothing 

exculpatory and did not contain any other accusations than that which the victim had 

reported regarding the Defendant. 

A defendant has a right to disclosure of exculpatory evidence that is material to guilt 

or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). The right to receive Brady

material is the constitutional component of a defendant’s right to pretrial discovery. See 

also Tenn. R. Crim. P. 16 (defining the State’s statutory duty to disclose evidence to the 

defense). The Confrontation Clause affords a defendant the rights to confront and 

cross-examine the witnesses at the trial. U.S. Const. Amends. VI, XIV; Tenn. Const. art. 

1, § 9; see, e.g., State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996); State v. 

Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992), superseded by statute on other grounds 

as stated in State v. Reid, 91 S.W.3d 247, 306 (Tenn. 2002). A DCS file may be submitted 

to a trial court for in camera review, and if a defendant is aware of specific information in 

the file, he may request it from the court and argue its materiality.” Charles Ritter v. State, 

No. E2008-01278-CCAR-3-PC, 2009 WL 3711991 at *8 (Tenn. Crim. App. at Knoxville, 

Nov. 6, 2009) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987)), no perm. app. filed.

In this case, the trial court reviewed the victim’s DCS file as the Defendant had 

requested and determined that it did not contain Brady material. We have also reviewed 

the records, and they appear to be the entirety of the victim’s records. We agree that the 

records do not contain any exculpatory evidence or any evidence beyond that which was 

presented at trial. Accordingly, we conclude that the trial court did not abuse its discretion 

when it declined to unseal the victim’s records and when it declined counsel’s request to 

review the records. The Defendant is not entitled to relief as to this issue.

3. Dr. Piercy’s “Grooming” Testimony

The Defendant next contends that the trial court erred when it allowed Dr. Piercy 

to testify about the Defendant “grooming” the victim for sexual abuse when this concept 

was not included in Dr. Piercy’s medical report. He argues that “grooming” “lacks a 

sufficient scientific basis” and prejudices the Defendant because it was not disclosed to 

him prior to trial. The State replies that the rules of discovery do not require disclosure 

before trial of the bases for an expert’s testimony or a report containing everything the 
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expert might testify about. The State further responds that “grooming” is an accepted 

concept in child sexual abuse cases that has been testified about by law enforcement and 

forensic and medical experts in multiple cases. 

Rule 404(b) of the Tennessee Rules of Evidence states that “[e]vidence of other 

crimes, wrongs, or acts is not admissible to prove the character of a person in order to 

show action in conformity with the character trait. It may, however, be admissible for 

other purposes.” The court may admit the evidence for non-character purposes if four 

conditions are met:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct 

conforming with a character trait and must upon request state on the record 

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear 

and convincing; and

(4) The court must exclude the evidence if its probative value is outweighed 

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). If a trial court “substantially complies” with these requirements, 

this court will review for an abuse of discretion. State v. McCary, 119 S.W.2d 226, 244 

(Tenn. Crim. App. 2003) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).

As the State points out, this court had deemed admissible evidence of a 

defendant’s “‘grooming’ of a victim,” including “bad acts committed during or in 

preparation for the charged offense.” See State v. Daniel Pottebaum, No. 

M2007-02108-CCA-R3-CD, 2008 WL 5397848, at *9 (Tenn. Crim. App., at Nashville, 

Dec. 30, 2008), Tenn. R. App. P. 11 application denied (Tenn. June 1, 2009) (citing State 

v. Wesley Earl Brown, No. M2003-02801-CCA-R3-CD, 2005 WL 1412088, at *10 

(Tenn. Crim. App., at Nashville, Jun. 16, 2005), Tenn. R. App. P. 11 application denied

(Tenn. Dec. 5, 2005)). Acts of “grooming” include showing pornographic videos to a 

child victim and, as in the present case, providing marijuana to the child victim before the 

molestation. Id. (citations omitted). 

The Defendant objected to the testimony on the grounds that it was not contained 

in Dr. Piercy’s report and on the grounds that it was without a scientific basis. The trial 

court considered the evidence sought to be admitted, outside the presence of the jury, and 

overruled the objection on the basis that giving a child victim drugs or alcohol to gain 
11

access to the child seemed to be a “common sense” concept. The trial court 

substantially complied with Rule 404(b). Our review of the applicable law indicates 

that the concept of “grooming” is one that has been recognized by the courts of this state

as well as other jurisdictions and is properly admitted through evidence of a defendant’s 

bad acts to gain favor or gain access to a victim. See Pottebaum (citing Brown, 2005 

WL 1412088, at *10, Frazier v. State, 557 S.E.2d 12, 18 (Ga. Ct. App. 2001); State v. 

Blackstead, 878 P.2d 188, 192 (Idaho Ct. App. 1994); State v. Anderson, 657 N.W.2d 

245, 247-49 (N.D. 2003)). Accordingly, we conclude that trial court did not abuse its 

discretion when it admitted Dr. Piercy’s testimony on this subject. The Defendant is not 

entitled to relief as to this issue.

4. Limitation on Cross-Examination of the Victim

The Defendant contends that the trial court improperly limited his 

cross-examination of the victim about text messages the victim exchanged with the 

Defendant. He claims that the limitation “improperly restricted [his] right to 

cross-examine the child victim.” The State replies that the trial court allowed the 

Defendant to cross-examine the victim at length about the text messages and only limited 

the questioning when the victim stated she could not remember the exchange or when 

defense counsel sought to read aloud the Defendant’s messages, which the State claims 

were self-serving hearsay. 

At trial, the Defendant sought to introduce text message exchanges through 

cross-examination of the victim that “tended to show both that [the victim] had an 

on-and-off relationship with her father for the six months after the alleged assault, 

sometimes quite normal and other times fighting about the rules, and that [the victim] 

often attempted to manipulate one parent or the other.” Initially, the trial court allowed 

the Defendant to cross-examine the victim at length about her text messages with the 

Defendant and messages left on her public social media account. After a period of 

questioning, the State objected that the Defendant’s messages were hearsay, not subject 

to cross-examination, and were “self-serving speech.” The Defendant argued that the 

messages were not hearsay, but conceded that a limiting instruction to the jury would be 

appropriate, instructing the jury that the messages were being introduced only to show 

context of the victim’s and the Defendant’s relationship after the victim said she had been 

raped by him. The trial court gave a limiting instruction to the jury stating that the 

messages were only admissible as evidence of their effect on the victim and the 

Defendant. 

Following the limiting instruction, the Defendant continued to question the victim 

about her message exchanges with the Defendant. At a certain point during this second 

period of questioning, the victim stated that she did not remember the text message 
12

exchange that she was being asked about. At this point, the trial court sustained the 

State’s objection to the admissibility of the text message exchange based upon the 

victim’s inability to identify the exchange. A third period of questioning ensued, and 

when the victim stated she did not remember certain messages, the State objected again, 

arguing that the messages posted to a public social media account months after the rape 

were self-serving hearsay and being posted for future use at trial to benefit the Defendant. 

The trial court sustained the objection. 

Nonetheless, the Defendant continued to question the victim about the text 

message exchanges several more times. The State continued to object and a bench 

conference was held. The trial court told the Defendant that he was attempting to 

introduce the same type of evidence repeatedly; the Defendant responded that the 

messages were not hearsay but being offered to show that the Defendant was enforcing 

rules on the victim that she did not want to follow. The trial court sustained the State’s 

objection. The Defendant went on to cross-examine the victim at length about the 

remainder of the messages, omitting the objectionable portions. The text message 

records were admitted in their entirety into evidence for identification. 

The Defendant raised this issue in his motion for new trial and, after a hearing, in a 

subsequent order denying relief, the trial court found that it properly limited the

Defendant’s questioning of the victim based upon the cumulative nature of the testimony. 

The trial court stated that, at the point it sustained the State’s objection, the Defendant’s 

messages being introduced were mostly repetitive.

A defendant’s constitutional right to confront the witnesses against him includes the 

right to conduct meaningful cross-examination. State v. Wyrick, 62 S.W.3d 751, 770 

(Tenn. Crim. App. 2001). Denial of the defendant’s right to effective cross-examination 

is “‘constitutional error of the first magnitude’” and may violate the defendant’s right to a 

fair trial. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980) (quoting Davis v. 

Alaska, 415 U.S. 308, 318, (1974)). “The propriety, scope, manner and control of the 

cross-examination of witnesses, however, rests within the sound discretion of the trial 

court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995); Coffee v. State, 

216 S.W.2d 702, 703 (1948). Furthermore, “a defendant’s right to confrontation does not 

preclude a trial court from imposing limits upon cross-examination which take into 

account such factors as harassment, prejudice, issue confrontation, witness safety, or 

merely repetitive or marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 

430 (Tenn. Crim. App. 1994).

The defendant’s right to cross-examine a witness is also limited to questions that are 

designed to elicit relevant evidence. As we have stated, Rule 403 provides that some 

evidence, “although relevant, . . . may be excluded if its probative value is substantially 
13

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.” Tenn. Rule Evid. 403. 

After review of the entirety of the records, we cannot conclude the trial court 

abused its discretion by limiting the questioning about text message exchanges between 

the Defendant and the victim. The jury had already heard extensive testimony about 

their exchanges and the remaining messages contained similar content. As the trial 

court stated in the order denying the Defendant’s motion for new trial, at a certain point, 

the testimony about the messages became repetitive and were, in our view, a needless 

presentation of cumulative evidence. See Tenn. R. Evid. 403. The trial court is 

authorized to exercise its discretion in imposing appropriate limits upon the examination 

of witnesses. See Tenn. R. Evid. 611; State v. Lewis, 803 S.W.2d 260, 262 (Tenn. Crim.

App. 1990). A defendant’s right to confrontation does not preclude a trial court from 

imposing limits upon cross-examination which take into account such factors as . . . 

merely repetitive . . . interrogation. State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. 

App. 1994) (citations omitted). We conclude that the trial court’s limitation of the 

cross-examination did not go beyond reasonable limits given the repetitive nature of the 

subject of the messages and the considerable leeway given by the trial court in allowing 

the Defendant to cross-examine the victim without any limitations. As such, we 

conclude that the trial court did not abuse its direction when it limited testimony about 

additional text messages of the same content. The Defendant is not entitled to relief as 

to this issue.

B. Sufficiency of Evidence

The Defendant contends that the evidence is insufficient to sustain his convictions. 

He contends that there was insufficient proof of non-consensual penetration and that the 

victim’s statements to the contrary to Dr. Piercy were hearsay statements that could not 

be considered as substantive evidence. The State responds that the evidence is sufficient 

to support the Defendant’s convictions. We agree with the State.

When an accused challenges the sufficiency of the evidence, this court’s standard of 

review is whether, after considering the evidence in the light most favorable to the State, 

“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) (emphasis in original); 

see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing 

State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule 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) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the 
14

absence of direct evidence, a criminal offense may be established exclusively by 

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury 

decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn 

from such evidence, and the extent to which the circumstances are consistent with guilt and 

inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184 

S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 

1958)). “The standard of review [for sufficiency of the evidence] ‘is the same whether the 

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

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

2009)). 

In determining the sufficiency of the evidence, this Court should not re-weigh or 

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact 

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. 

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of 

witnesses, the weight and value to be given the evidence, as well as all factual issues raised 

by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 

(Tenn. 1997). “‘A guilty verdict by the jury, approved by the trial judge, accredits the 

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of 

the State.’” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 

493 S.W.2d 474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale 

for this rule:

This well-settled rule rests on a sound foundation. The trial judge 

and the jury see the witnesses face to face, hear their testimony and observe 

their demeanor on the stand. Thus the trial judge and jury are the primary 

instrumentality of justice to determine the weight and credibility to be given 

to the testimony of witnesses. In the trial forum alone is there human 

atmosphere and the totality of the evidence cannot be reproduced with a 

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523, 

527 (Tenn. 1963)). 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’”

that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting State v. 

Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant 

removes the presumption of innocence and raises a presumption of guilt, the convicted 

criminal defendant bears the burden of showing that the evidence was legally insufficient 

to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
15

Relevant to the Defendant’s argument that there was insufficient proof of 

non-consensual penetration, as contemplated by the statutory definition of rape,1sexual 

penetration includes “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.” T.C.A. § 39-13-501(7) (2016). “‘Sexual contact’ 

includes the intentional touching of the victim’s[ ] [or] the defendant’s . . . intimate parts, or 

the intentional touching of the clothing covering the immediate area of the victim’s[ ] [or] 

the defendant’s . . . intimate parts, if that intentional touching can be reasonably construed 

as being for the purpose of sexual arousal or gratification.” T.C.A. § 39-13-501(6). 

The evidence viewed in the light most favorable to the State was that the victim 

awoke in her bed, after consuming alcohol, to find the Defendant undressing her. He 

inserted his fingers into her vagina and then his penis. The victim testified that she felt a 

tearing sensation in her vagina, and Dr. Piercy’s physical examination revealed the 

presence of signs of traumatic penetration. This is sufficient evidence from which a jury 

could conclude beyond a reasonable doubt that the Defendant was guilty of rape by way of 

sexual penetration of the victim without the victim’s consent. The Defendant is not 

entitled to relief.

C. Suspended Sentence

The Defendant lastly contends that the trial court erred when it denied his motion 

for a suspended sentence. He contends that his lack of criminal history, his steady 

employment, the character references submitted on his behalf, and his good behavior 

while released on bond weigh in favor of a sentence served outside of confinement. He 

requests that this court modify his sentence to probation. The State replied that the trial 

court properly considered the alternative sentencing factors and, in light of its 

consideration, did not abuse its discretion when it denied the Defendant’s request. 

“[S]entences imposed by the trial court within the appropriate statutory range are to 

be reviewed under an abuse of discretion standard with a ‘presumption of 

reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of 

discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in 

 

1Tennessee Code Annotated section 39-13-503 defines rape as: (a) Rape is unlawful sexual penetration of a 

victim by the defendant or of the defendant by a victim accompanied by any of the following 

circumstances:

(2) The sexual penetration is accomplished without the consent of the victim and the 

defendant knows or has reason to know at the time of the penetration that the victim did not 

consent;
16

light of the factual circumstances and relevant legal principles involved in a particular 

case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 

S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of 

any substantial evidence that would support the trial court’s decision. Id. at 554-55; State 

v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.

Crim. App. 1980). The reviewing court should uphold the sentence “so long as it is within 

the appropriate range and the record demonstrates that the sentence is otherwise in 

compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 

709-10. So long as the trial court sentences within the appropriate range and properly 

applies the purposes and principles of the Sentencing Act, its decision will be granted a 

presumption of reasonableness. Id. at 707. This includes the questions related to 

probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79

(Tenn. 2012). The defendant bears “[t]he burden of demonstrating that the sentence is 

improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The trial court must 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 Tennessee Code Annotated sections 40-35-113 and -114; 

(6) any statistical information provided by the administrative office of the courts as to 

sentencing practices for similar offenses in Tennessee; and (7) any statement the defendant 

made on the defendant’s own behalf about sentencing. See T.C.A. § 40-35-210 (2014); 

State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

A trial court’s decision regarding probation will only be invalidated if the court 

“wholly departed from the relevant statutory considerations in reaching its determination.” 

State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014). Under an abuse of discretion 

standard, an appellate court may not substitute its judgment for that of the trial court. Id. 

at 475.

With regard to alternative sentencing, Tennessee Code Annotated section 

40-35-102(5) provides as follows:

In recognition that state prison capacities and the funds to build and maintain 

them are limited, convicted felons committing the most severe offenses, 

possessing criminal histories evincing a clear disregard for the laws and 

morals of society, and evincing failure of past efforts at rehabilitation shall 

be given first priority regarding sentencing involving incarceration.

A defendant shall be eligible for probation, subject to certain exceptions, if the sentence 
17

imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2014). A

defendant is not, however, automatically entitled to probation as a matter of law. The 

burden is upon the defendant to show that he or she is a suitable candidate for probation. 

T.C.A. § 40-35-303(b) (2014); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 

1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet 

this burden, the defendant “must demonstrate that probation will ‘subserve the ends of 

justice and the best interest of both the public and the defendant.’” State v. Bingham, 910 

S.W.2d 448, 456 (Tenn. Crim. App.1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 

(Tenn. Crim. App. 1990)).

There is no bright line rule for determining when a defendant should be granted 

probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires 

a case-by-case analysis considering “the nature of the offense and the totality of the 

circumstances . . . including a defendant’s background.” State v. Ashby, 823 S.W.2d 166, 

168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In 

determining if incarceration is appropriate in a given case, a trial court should consider 

whether:

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103(1) (2014). “When considering probation, the trial court should 

consider the nature and circumstances of the offense, the defendant’s criminal record, the 

defendant’s background and social history, the defendant’s present condition, including 

physical and mental condition, the deterrent effect on the defendant, and the best interests 

of the defendant and the public.” State v. Brian Allen Cathey, No. 

E2015-01284-CCA-R3-CD, 2016 WL 2641766, at *3 (Tenn. Crim. App., at Knoxville, 

May 6, 2016) (citations omitted). The court should also consider the defendant’s 

truthfulness. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). The trial court must 

also consider the potential or lack of potential for rehabilitation or treatment of the 

defendant in determining the sentence alternative or length of a term to be imposed. 

T.C.A. § 40-35-103.
18

At sentencing, the trial court noted the Defendant’s minor criminal record of traffic 

offenses. In consideration of the Defendant’s request for probation, the trial court noted 

the circumstances of the offense, specifically the Defendant being the victim’s father, thus 

placing him in a position of authority, and his behavior towards her, including his 

furnishing her with alcohol, and determined that an alternative sentence was not warranted. 

The trial court made this conclusion in light of its consideration of the deterrent effect on 

the Defendant and the best interests of the public and the victim. The trial court further 

concluded that probation would not serve the ends of justice or society as a whole.

The evidence presented at trial and at the sentencing hearing established that the 

victim, who was shy and reserved by her own admission, was traumatized by the 

Defendant’s actions, as evidenced by her threatening suicide, and that the impact on her 

behavior was substantial. The Defendant took advantage of the victim’s vulnerability and 

naiveté by giving her alcohol and drugs at adult parties and then raping her when she was 

intoxicated. Based on this evidence, we conclude that the Defendant has not established 

that the trial court abused its discretion by denying him an alternative sentence. The 

Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

judgments of the trial court. 

_________________________________

ROBERT W. WEDEMEYER, JUDGE