                                                                                       11/05/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 16, 2019

                 STATE OF TENNESSEE v. LARRY SEXTON

                Appeal from the Circuit Court for Lawrence County
                        No. 33355 Robert L. Jones, Judge
                    ___________________________________

                          No. M2018-00874-CCA-R3-CD
                      ___________________________________

A Lawrence County Circuit Court Jury convicted the Appellant, Larry Sexton, of
aggravated statutory rape, a Class D felony, and the trial court sentenced him as a Range
III, career offender to twelve years in confinement. On appeal, the Appellant contends
that the trial court erred by allowing the State to reopen its proof after he moved for a
judgment of acquittal and by sentencing him as a career offender. Based upon the record
and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ALAN E. GLENN, JJ., joined.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Larry Sexton.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Gary Howell and
Christie Thompson, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

                                I. Factual Background

       In July 2015, the Lawrence County Grand Jury filed a two-count indictment,
charging the Appellant with rape and contributing to the delinquency of a minor. The
State later indicted him for aggravated statutory rape and nolle prosequied the first two
counts. The Appellant went to trial for aggravated statutory rape in November 2017.
        At trial, the victim’s mother testified that in May 2015, she was living in Loretto
with her son and two daughters, one of whom was the victim. The victim was born in
April 1999 and was sixteen years old. On the night of May 9, the victim’s mother and
her children were at their home. Jimmy Joyner and his son, Bryce, also were there. At
some point, the Appellant arrived in his new pickup truck. The victim’s mother said that
she had known the Appellant for two years, that he was a friend, and that his daughter
was about one year older than the victim. The victim and the Appellant’s daughter went
to the same high school and spent the night at each other’s houses from time to time.

       The victim’s mother testified that the Appellant offered to take Bryce1 and the
victim for a ride in his truck. The three of them left in the truck and were gone fifteen to
twenty minutes. When they returned, the victim’s mother, Jimmy, and Bryce decided to
go to The Cowpen in St. Joe’s to play pool. The Appellant was still at the house when
they left, but he was getting ready to leave.

       The victim’s mother testified that she drove to The Cowpen. However, no one
was there, so she drove across the street to Parker’s bar. Only a few cars were in the
bar’s parking lot, so she decided to show Bryce some land she owned on Union Hill
Road. The victim’s mother and the Joyners left Parker’s bar about 11:20 p.m., and the
drive to the property took about twenty-five minutes. When they arrived at the property,
the victim’s mother drove toward a shed that she used as a cabin. The cabin had a deck
on it. The victim’s mother saw the front of the Appellant’s truck turned toward the cabin,
and the truck’s headlights were shining on the deck. The victim was lying on her back on
the deck, and the Appellant was on top of the victim. They were not wearing any clothes.
The victim’s mother said that the Appellant “spun off” the victim and headed toward his
truck and that she assumed he was going to get some clothing. The victim’s mother got
out of her vehicle and “took off after him.” She said that she hit him more than one time
and that she “called him all kinds of names.”

       The victim’s mother testified that Bryce helped the victim get into her mother’s
vehicle. The victim’s mother said that the victim was “somewhat incoherent” and that
“[y]ou could tell she was intoxicated and she just wouldn’t answer us.” The victim was
not intoxicated when her mother and the Joyners left to go to The Cowpen.

       The victim’s mother testified that the Appellant got dressed and started saying he
was sorry. He got into his truck, the victim’s mother got into her vehicle, and the
victim’s mother called 911. The Appellant drove away, and the victim’s mother drove
back to Union Hill Road to wait for the police. She saw the Appellant’s truck pull into a
driveway on Union Hill Road, so she blocked his truck with her vehicle. She said she

       1
           Because the Joyners share a surname, we will refer to them by their first names for clarity.
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“tried to jerk him out of the truck” and “scratched out at his eyes.” The police arrived ten
to fifteen minutes later.

        On cross-examination, the victim’s mother acknowledged that the victim had two
Facebook pages. One of the pages was still accessible to viewers, but the victim no
longer used the page. The page showed the victim’s birthdate as April 13, 1990. The
second page was the victim’s active Facebook page and showed her birthdate as April 13,
1996. The victim’s mother said that sometime in April 2015, she rode with the Appellant
to a friend’s house. She denied having a sexual relationship with him.

       The victim’s mother testified that beer was in her home and that she began
drinking beer about 11:00 p.m. on May 9, 2015. She said that she did not see the victim
drink any alcohol and denied telling the police that she allowed the victim to consume
vodka that night.

        Sergeant Timothy Vess of the Lawrence County Sheriff’s Department (LCSD)
testified that just before midnight on May 9, 2015, he responded to a call on Union Hill
Road about a juvenile female who had been sexually assaulted. When Sergeant Vess
arrived, the victim’s mother was yelling at the Appellant, who was sitting in his truck and
was wearing only a pair of shorts. Sergeant Vess separated the victim’s mother and the
Appellant and asked the Appellant if he had had sex with the victim. The Appellant said
yes but that he did not know she was underage. Sergeant Vess called an ambulance for
the victim but did not speak with her.

       Heather Wilson testified that she was a registered nurse at Crockett Hospital. In
the early morning hours of May 10, 2015, Wilson was called to the emergency room and
was present while a doctor collected evidence from the victim for a sexual assault kit.
The evidence consisted of a blood sample, vaginal swabs, oral swabs, and pubic hair
combings. The victim’s underwear was not with her and was collected at the scene of the
alleged assault. Wilson said that the victim attempted to walk to the bathroom and that
the victim was “very wobbly.” The victim also was “very sleepy the entire time.”

       Investigator Jeff Dunn testified that on May 9, 2015, he was a criminal
investigator with the LCSD and responded to the scene on Union Hill Road. An
ambulance was leaving with the victim as he arrived. Investigator Dunn learned that the
alleged assault had occurred at another location, so he and two other officers went “just a
short distance down the road.” Investigator Dunn saw a wood outbuilding with a porch.
Two blankets, some clothing, and what appeared to be a used condom were on the porch.
He also saw a used condom wrapper and a box of condoms that had been “ripped open.”
The box was supposed to contain three condoms, but only two wrapped condoms were in
the box.
                                           -3-
       Investigator Dunn testified that he swabbed the inside and the outside of the used
condom. He later collected oral swabs from the victim and the Appellant and sent all of
the swabs to the Tennessee Bureau of Investigation (TBI) Crime Laboratory. He also
collected the victim’s sexual assault kit and sent it to the TBI. Investigator Dunn tried to
talk with the victim that night, but she was unable to give him any information about the
incident.

       Heather Lenzy of the TBI Crime Laboratory testified as an expert in forensic
biology and analysis that she analyzed the evidence collected in this case and that the
condom found on the porch was not suitable for analysis because it was “covered in
mold.” She analyzed the swab of the outside of the condom, and the swab was negative
for semen. The swab of the inside of the condom showed the presence of semen but not
sperm. She stated that finding semen without sperm was not unusual and could be
explained by a vasectomy, a low sperm count, or “a very small amount of semen” in the
condom. The oral and vaginal swabs from the victim’s sexual assault kit did not show
the presence of semen.

        Carrie Schmittgen, a special agent forensic scientist with the TBI, testified as an
expert in forensic biology that she analyzed the condom swabs for DNA. DNA on the
swab of the outside of the condom matched the victim, and DNA on the swab of the
inside of the condom matched the victim, the Appellant, and an unknown individual.
Agent Schmittgen acknowledged that the presence of DNA from a third person could
have resulted from the swab’s collection process. On cross-examination, Agent
Schmittgen acknowledged that the Appellant’s DNA was not on the swab of the outside
of the condom.

       The State recalled Investigator Dunn to the stand. According to the Appellant’s
driver’s license information, he was born in March 1972.

       The jury found the Appellant guilty of aggravated statutory rape, a Class D felony.
After a sentencing hearing, the trial court sentenced him as a Range III, career offender to
twelve years to be served at sixty percent release eligibility.

                                       II. Analysis

                             A. Recall of Investigator Dunn

       The Appellant contends that the trial court erred by allowing the State to reopen its
proof after he moved for a judgment of acquittal so that Investigator Dunn could testify
about his age. The State argues that the trial court acted within its discretion when it
                                           -4-
allowed the State to recall Investigator Dunn and that, in any event, the proof was
sufficient to show that the Appellant was much older than the victim. We conclude that
the trial court did not abuse its discretion by allowing the State to reopen its proof.

       At the conclusion of Agent Schmittgen’s testimony, the trial court dismissed the
jury for the day, and the State advised the court that it did not intend to call any additional
witnesses. When court resumed the next day, the trial court asked the prosecutor “if the
State was, in fact, resting its proof-in-chief,” and the prosecutor responded, “[W]e are,
Judge.” At that point, defense counsel made a motion for judgment of acquittal on the
basis that the State failed to present any proof of the Appellant’s age, which was a
necessary element of aggravated statutory rape. Defense counsel argued, “They must
prove Mr. Sexton is at least ten years older than the victim, and in this case, they have not
done so.”

       The prosecutor responded that he thought the victim’s mother testified about the
Appellant’s age but that he would recall Investigator Dunn to the stand “out of an
abundance of caution.” Defense counsel asserted that the trial court should not allow the
State to reopen its proof “because the State just rested.” The prosecutor noted that “we
haven’t announced to the jury that we’ve rested” and contended that the trial court should
allow the State to reopen its proof so that the State could have Investigator Dunn testify
about the Appellant’s age from the Appellant’s driver’s license. The prosecutor noted,
“And there’s certainly circumstantial evidence already in the record. [The victim’s
mother] testified that [the Appellant] had a daughter that was one-year older than her
daughter. So unless he had that daughter at the age of nine, he would be at least ten years
older than [the victim].”

       The trial court ruled that the “official resting of the case” had to occur in the
presence of the jury and that the State could recall Investigator Dunn to the stand. The
State recalled Investigator Dunn, and he testified that information from the Appellant’s
driver’s license showed the Appellant was born in March 1972. At the conclusion of his
testimony, the State pronounced that it was resting its case-in-chief.

       “Aggravated statutory rape is the unlawful sexual penetration of a victim by the
defendant, or of the defendant by the victim when the victim is at least thirteen (13) but
less than eighteen (18) years of age and the defendant is at least ten (10) years older than
the victim.” Tenn. Code Ann. § 39-13-506(c). Thus, the State was required to prove that
the Appellant was at least twenty-six years old on May 9, 2015.

       Initially, we disagree with the trial court’s determination that the State had not
closed its proof when it requested to recall Investigator Dunn to the stand. After Agent
Schmittgen’s testimony, the State advised the trial court that it did not intend to call any
                                             -5-
additional witnesses. The next morning, the State advised the trial court that it was
resting its case-in-chief. Based on the State’s assertions, defense counsel made, and the
trial court entertained, a motion for judgment of acquittal. Therefore, in our view, the
State had closed its proof even though it had not done so formally in front of the jury.
See Tenn. R. Crim. P. 29(b) (providing that defendant may make a motion or trial court
may order judgment of acquittal “after the evidence on either side is closed”); State v.
James, 315 S.W.3d 440, 455 (Tenn. 2010) (providing that Rule 29(b) “empowers the trial
judge to direct a judgment of acquittal when the evidence is insufficient to warrant a
conviction either at the time the [S]tate rests or at the conclusion of all the evidence”).

        This court has observed that “the decision of whether to reopen the proof for
further evidence is within the discretion of the trial court, and the decision of the trial
court will not be set aside unless there is a showing that an injustice has been done.”
State v. Brock, 940 S.W.2d 577, 580 (Tenn. Crim. App. 1996). Here, the trial court
allowed the State to recall Investigator Dunn briefly in order to present additional proof
of the Appellant’s age. As noted by the State, the State already had presented
circumstantial evidence that the Appellant was at least ten years older than the victim.
Specifically, the victim’s mother had testified that the Appellant’s daughter was in high
school and was about one year older than the sixteen-year-old victim, and the jury was
able to view the Appellant in the courtroom.2 Thus, we are unable to conclude that the
trial court abused its discretion or that an injustice was done to the Appellant.

                                         B. Career Offender

      The Appellant claims that the trial court erred by sentencing him as a career
offender. The State argues that the trial court did not err. We agree with the State.

       On November 17, 2017, the State filed a notice of intent to seek enhanced
punishment as a career offender pursuant to Rule 12.5, Tennessee Rules of Criminal
Procedure. The notice listed the following felony convictions for the Appellant from the
Nineteenth Circuit Court of St. Lucie County, Florida: (1) “Larceny X 5,” burglary of a
conveyance, and possession of burglary tools with a conviction date of July 26, 1994; (2)
burglary of a conveyance and damage to property with a conviction date of January 17,
1995; (3) burglary of a dwelling with a conviction date of February 3, 1997; (4) grand
theft of a motor vehicle committed on October 8, 1998, with a conviction date of
December 30, 1998; and (5) grand theft of a motor vehicle committed on November 13,
1998, with a conviction date of December 30, 1998. The notice also listed attempted
        2
          We note that at the outset of trial, prior to the jury’s entering the courtroom, the trial court
commented, “I assume, just by looking at Mr. Sexton, and from the date of his birth alleged in the
indictment, that there’s no way the jury could conclude that he’s less than ten years [older than the
victim].”
                                                  -6-
bribery of a witness with a conviction date of April 5, 2017, in the Lawrence County
Circuit Court.

       At the Appellant’s January 4, 2018 sentencing hearing, the State introduced his
presentence report into evidence. Defense counsel objected to the admission of the report
on hearsay grounds, but the trial court overruled the objection. According to the report,
the then forty-five-year-old Appellant was married and had one daughter, one son, and
two stepsons. The Appellant told the investigating officer who prepared the report that
he graduated from Westwood High School in St. Lucie, Florida. However, when the
officer contacted Melodie Golden in the attendance office at Westwood, Golden reported
that the Appellant dropped out of Westwood after the ninth grade and did not attend any
other high school in the St. Lucie School District. In the report, the Appellant described
his physical health as “good” and his mental health as “fair” and stated that he began
drinking alcohol when he was fifteen years old but stopped drinking in 2014. The
Appellant denied using any nonprescription or illegal drugs and said that he had been the
“owner/operator” of Sexton Truck Company since 1996.

        The report showed that the Appellant began committing crimes when he was
twenty-one-years old and that he had numerous prior felony and misdemeanor
convictions in St. Lucie, Florida, and Lawrence County, Tennessee. Of the prior
convictions in the report, the State advised the trial court that it was relying on the
following convictions in St. Lucie, Florida, to establish the Appellant’s status as a career
offender: two convictions on December 30, 1998, for grand theft of a vehicle; a
conviction on February 3, 1997, for burglary of a dwelling; a conviction on January 17,
1995, for burglary of a conveyance; and a conviction on July 26, 1994, for grand larceny.
The State also advised the trial court that it was relying on a September 6, 1989
conviction in St. Lucie, Florida, for escape, which was not listed in the presentence
report. For the six convictions, the State introduced into evidence photocopies of
certified judgments of conviction. The State advised the trial court that it had introduced
the original certified judgments of conviction into evidence at another sentencing hearing
for the Appellant on April 5, 2017, and requested that the trial court take judicial notice
of the originals from the previous hearing. The Appellant objected to the documents as
hearsay, but the trial court overruled the objection. Finally, the State introduced into
evidence a certified judgment of conviction from the Lawrence County Circuit Court for
a 2017 conviction of attempted bribery of a witness, a Class D felony. The State argued
that based on the Appellant’s seven prior felony convictions, he qualified as a career
offender.

      The trial court noted that aggravated statutory rape was a Class D felony and that
the Appellant had to have at least six prior Class D or E felony convictions in order to be
sentenced as a career offender. The court found that the Appellant’s six prior convictions
                                           -7-
in Florida qualified him as a career offender and sentenced him as a Range III, career
offender to twelve years in confinement.

       On appeal, the Appellant contends that the trial court erred by considering his
presentence report and the copies of the certified judgments of conviction from Florida
because the documents were hearsay. We conclude that the trial court properly used the
prior convictions to sentence the Appellant as a career offender.

        As noted by the trial court, aggravated statutory rape is a Class D felony. Tenn.
Code Ann. § 39-13-506(d)(3). Relevant to this case, a defendant is a career offender if
the defendant has received “[a]t least six (6) prior felony convictions of any classification
if the defendant’s conviction offense is a Class D or E felony.” Tenn. Code Ann. § 40-
35-108(a)(3). If a trial court determines that a defendant is a career offender, the
defendant shall receive the maximum punishment in the range for a Range III offender.
Tenn. Code Ann. § 40-35-108(c). The maximum punishment for a Range III offender
convicted of a Class D felony is twelve years. Tenn. Code Ann. § 40-35-112(c)(4).
Furthermore, the release eligibility for a career offender is sixty percent less sentence
credits earned and retained by the defendant. Tenn. Code Ann. § 40-35-501(f).

        As to the Appellant’s claim that his presentence report was inadmissible hearsay,
Tennessee Code Annotated section 40-35-209(b) provides that in a sentencing hearing,
reliable hearsay is admissible as long as a defendant “is accorded a fair opportunity to
rebut any hearsay evidence so admitted.” “This court has consistently held the
presentence report to be reliable hearsay.” State v. Adams, 45 S.W.2d 46, 59 (Tenn.
Crim. App. 2000). Therefore, the trial court did not err by using the Florida convictions
listed in the Appellant’s presentence report to sentence him as a career offender.

        Moreover, the State introduced into evidence photocopies of certified judgments
of conviction for the offenses, which the State had introduced into evidence at a prior
sentencing hearing for the Appellant. The Lawrence County Circuit Court Clerk attached
a document to the photocopies, certifying that they were true and correct copies of the
original certified judgments filed in the prior hearing. Moreover, the State requested that
the trial court take judicial notice of the originals, and the trial court did so. See Tenn. R.
Evidence 201(b), (c). In our view, the better practice would have been for the State to
introduce original certified judgments of conviction into evidence at the sentencing
hearing in the present case. In any event, the presentence report’s being reliable hearsay
“[makes] it unnecessary in most instances to introduce certified copies of convictions.”
State v. Alton Tappan, No. W2006-00168-CCA-R3-CD, 2007 WL 1556657, at *7 (Tenn.
Crim. App. at Jackson, May 29, 2007) (citing State v. Adams, 45 S.W.3d 46, 59 (Tenn.
Crim. App. 2000)). Therefore, we conclude that the trial court properly sentenced the
Appellant as a career offender.
                                             -8-
       We note that the Appellant also contends that the trial court erred by finding that
he had six or more prior qualifying felonies because “multiple convictions resulting from
a crime spree that were adjudicated in a single proceeding could not be used to bump the
sentencing range” and because “a ‘prior conviction’ means a conviction that has been
adjudicated prior to the commission of the more recent offense for which sentence is to
be imposed.” However, the Appellant does not make any argument as to how those two
principles apply to his convictions. Therefore, any issue he has attempted to raise in that
regard has been waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                  _______________________________
                                                  NORMA MCGEE OGLE, JUDGE




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