IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 20, 2010 Session

STATE OF TENNESSEE v. KENNETH THOMPSON ANDERSON, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 2006-C-2268 Monte Watkins, Judge

No. M2009-00494-CCA-R3-CD - Filed January 20, 2011

Following a jury trial, Defendant, Kenneth Thompson Anderson, Jr., was convicted of eight

counts of sexual battery by an authority figure and sentenced to an effective sentence of nine

years. In this direct appeal, Defendant raises the following issues for review: 1) whether the

trial court erred by refusing to allow testimony regarding the victim’s past sexual behavior

and preference for older men; and 2) whether the evidence is sufficient to support

Defendant’s convictions. Finding no error, we affirm the judgments of the trial court.

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

THOMAST.WOODALL,J., delivered the opinion of the Court, in which DAVID H.WELLES and

JOHN EVERETT WILLIAMS, JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Kenneth Thompson Anderson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and J.W. Hupp, Assistant

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

OPINION

Facts

We will refer to the minor victim by her initials. At trial, the victim, A.S., testified

that in late 2005 and early 2006, she was 16 years old and a student at Smyrna High School.

Defendant was her biology teacher. She described Defendant’s class as a “fun class.” She

testified that in the Fall of 2005, she was upset over some issues she was having with her

mother and turned to Defendant to talk about it. During one of her conversations with
Defendant at school after class, Defendant kissed her. Before the Christmas break,

Defendant gave A.S. a cell phone, and he gave her a photograph of himself on the back of

which he wrote, “To my girl who I love with all my heart, soon she’ll be my wife,

[Defendant].”

A.S. testified that on January 5, 2006, Defendant picked her up, and she “snuck out”

of her house to go to his house. A.S. testified that Defendant’s teenage daughters were at his

house, and his 14-year-old daughter woke up while she was there, but later fell back asleep.

Defendant and A.S. went to Defendant’s bedroom where “he performed oral sex on [her],

and [they] had sexual intercourse.” A.S. testified that on January 7, 2006, her stepfather

dropped her off at Hickory Hollow Mall, where she met Defendant, who drove her to his

house, where they again had sexual intercourse. On January 14, 2006, Defendant picked her

up again from the mall. After they dropped off her friend at her boyfriend’s house,

Defendant and A.S. rented a movie and got food from Burger King, which they took to

Defendant’s house. A.S. testified that they ate their food and watched the movie and then

left to pick up the friend and drop her off at home. They returned to Defendant’s house,

where they had sexual intercourse. A.S. stayed the night at Defendant’s house and slept in

his bed. She testified that when she and Defendant woke up on the next morning, on January

15, they had sex again. She left her clothes at Defendant’s house. A.S. testified that she was

in love with Defendant and that Defendant was in love with her.

On cross-examination, A.S. testified that it was “not entirely true” that she was

attracted to older men, and she acknowledged that she had been in a previous relationship

with a man named Deon Lyons that had ended more than two years before her involvement

with Defendant. She also testified that she knew Defendant only from having been in his

biology class. She testified that her mother had learned of her relationship with Defendant

and took away the cell phone that Defendant had given her. A.S. and her mother had a

physical altercation and A.S. was placed in juvenile detention. In her initial statement to the

Smyrna Police Department, while in detention,she did not disclose a sexual relationship with

Defendant. When asked by Detective Adkins to submit to a medical exam, she refused,

which A.S. testified was in an effort to protect Defendant.

Officer Kevin Cooley testified that he assisted in executing a search warrant of

Defendant’s home. When officers arrived at Defendant’s residence, Defendant was not

there. Defendant’s vehicle was stopped in the area, and the items specified in the warrant,

the victim’s jeans and shirt, were found in Defendant’s vehicle.

Defendant’s wife,Janette Anderson, testified thatshe and Defendant had been married

for 18 years, but they had been separated since September, 1998. She and Defendant have

two daughters together, ages 16 and 18. At the time of the offenses, their daughters lived

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with Defendant during the week and visited Mrs. Anderson on the weekends. She and

Defendant lived within a two or three-minute drive from each other.

Kendra Anderson, Defendant’s 18-year-old daughter, testified that in the Fall of 2005,

she remembered her father waking her up in the middle of the night and taking her to her

mother’s house. She testified that she and Defendant sat down to talk, and Defendant took

her cell phone away from her because he told her she had been “dishonest and sneaky.”

Subsequent to that incident, she called the number for the cell phone her father had taken

from her, and a female answered. Miss Anderson testified that she met the victim in January,

2006, and she was aware of one occasion on which the victim came to Defendant’s house.

She did not see Defendant and the victim engage in any type of inappropriate conduct.

Defendant’s youngest daughter testified that in early 2006, she was awakened by

someone tapping her shoulder while she was sleeping at her father’s house. She asked the

person who woke her, “Are you [A.S.]?” A.S. replied, “yes,” and she went back to sleep.

She considered A.S. a “friend” of her dad’s.

Detective Michael Adkins of the Metro Nashville Police Department testified that he

assisted in executing a search warrant of Defendant’s home. After stopping Defendant’s

vehicle and locating the victim’s jeans and shirt inside, he obtained another warrant for

Defendant’s residence and found mapquest directions from Defendant’s home to the home

of Talesha Tucker, who was a friend of A.S. Detective Adkins also recovered Defendant’s

bedding from the dryer. Detective Adkins did not request DNA analysis of the victim’s

clothes or Defendant’s bedding.

Joshua Smith testified that he was in Defendant’s biology class with the victim. He

testified that within his group of peers, the phrase “be my wife” had the connotation of

friendship rather than an intention to marry. He testified that Defendant “would try to get on

[students’] level and help [them] understand things a lot better, talk to [students] like. . .

[they] talk to each other.”

Defendant denied having had a sexual relationship with A.S., and he testified that his

personal involvement with A.S. outside of his classroom was only to protect her. He testified

that A.S. confided in him about problems in her home life, including physical altercations

between her mother and stepfather. In one instance that A.S. described to Defendant, she

was pushed while trying to intervene, but Defendant never reported any of those incidents

described by the victim to any other authority. Defendant testified that he gave A.S. a cell

phone before the Christmas break to use while she visited her father. Defendant testified that

she continued to confide in him about her personal problems with her family, and he

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described their relationship as “more than a teacher-student relationship. She was a friend

of sorts, where I would talk to her concerning problems.”

Defendant testified that A.S. called him one night very distraught, saying that she

wanted to leave home. Defendant picked her up a block away from her house and drove her

to his house. He testified that after they arrived at his house, Defendant introduced the victim

to his youngest daughter, who, he testified, was not sleeping. According to Defendant, the

victim then “made a bee-line” to his bedroom, which Defendant thought was “kind of odd.”

Defendant testified that she “started unbuttoning her blouse” and “started stripping.”

Defendant told her to stop. He then drove her back to where he had picked her up and

dropped her off.

Defendant testified that he told A.S. on the following morning that the “situation that

happened in [his] house [the previous night] will never repeat itself.” He testified that on

another occasion, he heard A.S. tell some classmates that she was going to spend the

weekend at a friend’s house, who lived in the vicinity of Deon Lyons, with whom Defendant

knew that A.S. had “a problem.” Defendant testified that he was driving around looking for

Deon Lyons that weekend when A.S. sent him a text message asking him to pick her up at

the mall. He met A.S. and her friend Talesha at the mall and drove them to Talesha’s house,

but A.S. stayed in his car, saying she wanted to “hang out and talk” and watch a movie at his

house. Defendant and A.S. rented a movie and returned to Defendant’s house. Defendant

testified that around 11:30 p.m., A.S. received a phone call from Talesha, asking her to pick

her up. Defendant and A.S. drove to where Talesha was, picked her up and dropped her off

at another location. Defendant testified that A.S. wanted to talk to him some more, so they

drove back to his house at around 1:00 a.m. Defendant testified that A.S. slept in his bed that

night, and he slept on the couch. The following morning, Defendant drove her to Talesha’s

grandmother’s house and dropped her off.

Defendant and A.S. exchanged several text messages, which Defendant attempted to

explain. Defendant sent A.S. messages that read, “I love you,” “You didn’t know? I miss

you like crazy, I can get used [sic] to having you with me,” and “I want to marry you as soon

as I can.” Regarding those messages, Defendant testified that he “enjoy[s] the company of

his students” and that he “told each and every student that [he] ever taught that [he] loved and

respected each one of them.” Defendant also testified that a text message he received from

A.S. stating that her “upper thighs hurt” was because several students in his class had been

“wrestling and horse-playing” and “passing licks back and forth.” Defendant testified that

his text message to A.S., “I want to marry you as soon as I can,” was “slang” and that it was

“only to show her that [he would] be there for her whenever she need[ed] [him].” Defendant

admitted that he gave a photograph of himself to A.S. with the words, “to my girl who I love

with all my heart, soon will be my wife,” written on the back, but he testified that he gave

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photographs of himself “to several different students” with “just stupid comments on the

back of them.” He did not intend for his comments to be taken literally.

Relevancy of the Evidence

Defendant asserts on appeal that the trial court unfairly limited the scope of defense

counsel’s cross-examination of the victim and the direct examination of Defendant with

regard to the victim’s knowledge of sexual matters and her preference for older men.

Tennessee Rule of Evidence 412 governs the admissibility of evidence about a sex

crime victim’s prior sexual acts. It is a rule of relevance, see State v. Brown, 29 S.W.3d 427,

430 (Tenn. 2000), and we will not overturn a trial court’s Rule 412 ruling absent an abuse

of discretion. State v. Sheline, 955 S.W.2d 42, 46 (Tenn. 1997).

Rule 412 provides, in pertinent part, as follows:

(c) Specific instances of conduct. Evidence of specific instances of a

victim’ssexual behavior is inadmissible unless admitted in accordance with

the procedures in subdivision (d) of this rule, and the evidence is:

(4) If the sexual behavior was with persons other than the accused,

(i) to rebut or explain scientific or medical evidence, or

(ii) to prove or explain the source of semen, injury, disease,

or knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of sexual

behavior so distinctive and so closely resembling the

accused’s version of the alleged encounter with the victim

that it tends to prove that the victim consented to the act

charged or behaved in such a manner as to lead the defendant

reasonably to believe that the victim consented.

Tenn. R. Evid. 412(c)(4). (emphasis added).

At the hearing on Defendant’s Rule 412 motion, A.S. testified that her sexual

relationship with Defendant was consensual. She also testified that she had a sexual

relationship with former boyfriend Deon Lyons and a man named Chauncey. She testified

that she confided in Defendant about personal matters, including problems in her home life.

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A.S. denied that she had a sexual relationship with a 40-year-old man who was, at the time

of the hearing, being investigated for having had a sexual relationship with her. She testified

that she learned of sexual matters from her sexual experiences prior to Defendant.

In an order denying Defendant’s motion, the trial court found as follows:

The Court also finds that the Tenn. R. Evid. 412 is a rule of exclusion and

that the defendant did not establish the need for the evidence when the State

has conceded that the victim has allegedly engaged in sexual behavior with

another individual to prove sexual knowledge. Therefore, the evidence of

prior sexual abuse and sexual encounters are not admissible. The

defendant’s motion for introduction of Tenn. R. Evid. 412 evidence is

DENIED.

The State argues that evidence of the victim’s past sexual behavior was not relevant

in that the victim was not a young child as contemplated by Rule 412, and there was no

suggestion that she could only have acquired knowledge about sexual matters from the

defendant. However, as the State also points out, Defendant did not offer the evidence for

the purpose of showing that the victim had knowledge of sexual matters, but rather to

demonstrate the victim’s alleged attraction to older men.

In the case sub judice, the victim was 16 years of age at the time of the offense and

18 years old at the time of trial, rather than a very young child as contemplated by section

(c)(4)(ii) of Rule 412. See Tenn. R. Evid. 412, Advisory Comm’n Cmts. (“This provision

also permits proof of the source of knowledge of sexual matters. It will most frequently be

used in cases where the victim is a young child who testified in detail about sexual activity.

To disprove any suggestion that the child acquired the detailed information about sexual

matters from the encounter with the accused, the defense may want to prove that the child

learned the terminology as the result of sexual activity with third parties.”) Moreover, the

jury heard evidence of A.S.’s knowledge of sexual matters. A.S. testified at trial that she had

been involved in at least one relationship with an older man, Deon Lyons, and Defendant

testified that A.S. told him that she had been sexually active before he knew her.

Finally, Defendant’sstated purpose for offering the evidence wasto show the victim’s

alleged attraction to older men in order to support his defense that he did not “use[ ] his

position of authority to engage in sexual relations with [A.S.],” as stated in Defendant’s

motion. This was also Defendant’s argument to the trial court for admitting the evidence.

Defendant’s stated purpose for admitting the evidence is not among the purposes allowed

under Rule 412. Furthermore, the victim’s lack of consent is not an element of the crime for

which Defendant was convicted. The offense of sexual battery by an authority figure does

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not require that the minor victim withhold consent. See Tenn. Code Ann. § 39-13-527.

Therefore, the evidence is neither relevant, nor was it offered for a purpose stated in the rule.

We conclude that the trial court properly excluded the evidence.

Sufficiency of the Evidence

When an accused challenges the sufficiency of the convicting evidence, our standard

of review is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,

61 L. Ed. 2d 560 (1979). The trier of fact, not this Court, resolves questions concerning the

credibility of the witnesses, the weight and value to be given the evidence, as well as all

factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.

1995). Nor may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Id. Because a verdict of guilt removes

the presumption of innocence and replaces it with a presumption of guilt, the accused has the

burden in this court of illustrating why the evidence is insufficient to support the verdict

returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The judgments reflect that Defendant was convicted on eight counts of sexual battery

by an authority figure, which is defined as “unlawful sexual contact with a victim by the

defendant or the defendant by a victim” where “[t]he victim was, at the time of the offense”

between the ages of 13 and 17 years old, and “[t]he defendant was at the time of the offense

in a position of trust, or had supervisory or disciplinary power over the victim by virtue of

the defendant’s legal, professional or occupational status and used the position of trust or

power to accomplish the sexual contact.” See Tenn. Code Ann. § 39-13-527.

Defendant argues that the proof at trial was insufficient to show that he used his

position of authority, as the victim’s teacher, to accomplish the sexual contact with the

victim. On appeal, Defendant points to the following trial testimony from the victim:

[Defense counsel]: [A.S.], once again, did [Defendant] use his position as

a biology teacher to influence you in any way to have

sex with him?

[A.S.]: No.

[Defense counsel]: Pardon?

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[A.S.]: No.

[Defense counsel]: So, the fact that he was a biology teacher had nothing

to do with your relationship. Isn’t that correct?

[A.S]: It depends on how you look at it.

[Defense counsel]: Well, if you met the man, let’s just say at Kroger or

something, all right [sic]? And y’all started talking

and you liked him, that could have easily been the

same situation as having met him in the classroom?

[A.S.]: No.

[Defense counsel]: No. Well, as far as him being your biology teacher, all

right [sic], he never said you had to socialize with him

or do anything with him sexually or otherwise in order

to get a grade. Correct?

[A.S.]: Correct.

[Defense counsel]: He never put any pressure on you to socialize with

him or to have a relationship with him in order to have

a good grade or have anything to do with school.

Right?

[A.S.]: Right.

[Defense counsel]: What you did with him – what you claim you did with

him – was completely and absolutely voluntary. Isn’t

that right?

[A.S.]: Correct.

The State responds that the victim also testified that it was through the teacher-student

relationship that Defendant gained the victim’s trust, and she began confiding in him about

problems in her family. The victim ultimately stated that the only way Defendant was able

to have a sexual relationship with her was through his relationship with her as a teacher.

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Defendant also asserts that the evidence is insufficient to support his convictions

because the sexual contact did not take place at the school. However, nothing in the statute

requires that the sexual activity occur at the school, or other place that is the source of the

defendant’s authority. In State v. Farmer, this Court held that a defendant need not use his

position of authority to “force” sexual contact with the victim, but rather, the statute prohibits

a defendant from using such power to “accomplish” the sexual contact. In that case, this

Court relied on the following definition of “accomplish”: “Without a definition provided by

the legislature, we turn to the plain meaning of accomplish, which is ‘1: to bring about (a

result) by effort . . . 2: to bring to completion: fulfill.’ Merriam-Webster’s Online Dictionary,

http://www.merriam-webster.com/dictionary/accomplish (last visited July 21, 2008).” State

v. Farmer, No. M2007-01553-CCA-R3-CD, 2008 WL 3843847 at *7 (Tenn. Crim. App. At

Nashville, June 17, 2008), perm. to app. denied.

When viewed in a light most favorable to the State, the evidence establishes that

Defendant used his position of trust to accomplish sexual contact with the victim. A.S.

testified that she had sexual contact with Defendant. Defendant and A.S. testified that,

during the time period in which A.S. testified the sexual contact occurred, Defendant was her

biology teacher. Defendant gained A.S.’s trust by allowing her to confide in him about her

family problems, and he endeared himself to her through his many provocative and

inappropriate messages to her. According to Defendant’s own testimony, even after A.S.’s

behavior indicated that she was interested in an inappropriate relationship with him, his

actions fostered such a relationship when he spent time alone with her and brought her to his

house, where he allowed her to spend the night. Defendant is not entitled to relief on this

issue.

CONCLUSION

After a thorough review of the record, we affirm the judgments of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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