        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 9, 2016

          STATE OF TENNESSEE v. ROBERT G. THORNTON, JR.

                 Appeal from the Circuit Court for Hickman County
                  No. 145023CR       James G. Martin, III, Judge
                     ___________________________________

                 No. M2015-01895-CCA-R3-CD – Filed June 22, 2017
                      ___________________________________

Following a jury trial in Hickman County Circuit Court, Defendant, Robert G. Thornton,
Jr., was convicted of two counts of rape. The trial court merged the convictions and
sentenced Defendant to twelve years in the Department of Correction to be served at
100%. On appeal, Defendant argues: (1) that the trial court improperly refused to strike a
juror for cause; (2) that the trial court erred by denying his motion for a mistrial; (3) that
the evidence was not sufficient to support his rape convictions; and (4) that his sentence
is excessive. After a thorough review of the record, we affirm the judgments of the trial
court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Richard Boehms, Hohenwald, Tennessee, for the appellant, Robert G. Thornton, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Kim R. Helper, District Attorney General; and Kate Yeager Delk, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

Background

State’s Proof

      Tina Thigpen is the Principal at the Hickman County Middle School. During the
2012-2013 school year she was employed as a guidance counselor at the school. On May
2, 2013, Ms. Thigpen was requested to speak with the victim after there had been a fight
during recess that day. The victim did not participate in the fight although he was the
“subject” of the fight. Ms. Thigpen called the victim into her office, and they had a
conversation. The victim was concerned that he had an STD, which raised many “red
flags” with Ms. Thigpen. She continued speaking with the victim and suggested that he
be tested. The victim became “visibly shaken, scared, upset,” and he began crying. Ms.
Thigpen testified that she felt the need to notify the school principal, the victim’s mother,
and law enforcement. The victim’s mother and law enforcement later arrived at the
school.

       The victim’s mother testified that she has three sons. At the time of the offenses,
the victim was fourteen years old and in the eighth grade. The victim’s mother testified
that he liked sports and music, and she described him as a quiet child who was “sweet
and kind.”

       On May 2, 2013, the victim’s mother received a call from Ms. Thigpen at the
Hickman County Middle School. The victim’s mother then left work and drove to the
school. She walked into the room where the victim was sitting, and she immediately
noticed that he was very upset. She knew that there was “something drastically wrong
with him.”

        The victim’s mother noted that the victim spent nearly every weekend with his
father, from whom the victim’s mother had been divorced since 2000. She had noticed
changes in the victim in the weeks leading up to May 2, 2013. The victim’s mother
described him as “more distan[t] than ever,” and he spent a lot of time in bed. She also
testified that the victim constantly wore a hoodie, and he was “very sick all of the time.”

        The victim testified that he met Defendant during the victim’s eighth grade year at
school. He said that he went to Defendant’s house with a friend, J.D., for a birthday
party. The victim testified that there was alcohol at the party, and everyone was drinking
except for Defendant. The victim said that he drank “two shots.” He and J.D. then spent
the night at Defendant’s house. After that, the victim testified that he and J.D. visited
Defendant’s house every other week for a “month or a month and a half.” The victim
testified that Defendant had a television but he did not have cable. Defendant also
usually had alcohol for them to drink. The victim testified that he and J.D. usually talked
and hung out together while at Defendant’s house. He said that Defendant also had a
roommate but the victim only saw him one time. The victim also saw other people at
Defendant’s house who were older than the victim. He said that there were no rules at
Defendant’s house. The victim testified that the main reason he went to Defendant’s
house was to “hang out” with J.D. He said that Defendant was always there and sitting
“in front of his couch or on the chair.”



                                            -2-
        The victim described his relationship with Defendant as someone he could talk to
and “open up to for problems.” The victim testified that J.D. and Defendant were at
Defendant’s house the last time that the victim was there. He said that he and J.D. were
“messing around being stupid,” and Defendant had rum and Mountain Dew at the house.
Defendant mixed the two ingredients together and gave it to the victim. The victim
thought that J.D. also had a drink. The victim testified that he drank two cups of the
mixture and began to feel lightheaded and off balance. He said, “Like whenever I was
turning or tried to move my eyes everything felt like it was going like in slow motion and
moving all together I guess.” The victim testified that he had never drank that much or
felt that way before.

        The victim testified that Defendant showed the victim and J.D. some pornography
that was playing on the television, and the victim and J.D. then went to the back room of
the house and talked. The victim described the room as the closest one to the living
room. He said that Defendant walked into the room while the victim and J.D. were on
the bed talking. The victim testified that Defendant asked him if he wanted to “try anal
or anything with a guy,” and the victim told him, “I didn’t want to.” The victim said that
the next thing he remembered was being facedown and feeling a sharp pain inside his
“butt.” He could not turn around to see what was inside of him but he felt a “ripping”
sensation. The victim testified that he felt J.D.’s hand on his back, and J.D. told
Defendant to stop because he was hurting the victim. The victim said that he could not
tell Defendant to stop because he was in too much pain. He testified that the pain stopped
after a while, and he “just kind of laid there,” and J.D. hugged him. The victim testified
that J.D. was in the room the entire time that Defendant was raping him. He said that
Defendant did not say anything and left the room after the rape. The victim went to
sleep, and Defendant was gone when he woke up at approximately 7:30 to 8:00 a.m. the
next morning. The victim left Defendant’s house and walked to his girlfriend’s house.
The victim did not tell anyone what happened because he was scared and wanted to
forget about it.

        The victim admitted that he spoke with a detective a few weeks before he told Ms.
Thigpen what happened. He did not tell the detective about the rape because he did not
want to talk about it, and he wanted to “leave it alone and forget about it.” The victim
said that he finally told Ms. Thigpen what happened because he trusted her, and
Defendant was in jail and “already caught.” The victim testified that it was difficult to
tell his mother what happened, and he did not want anyone to “feel bad” for him.

       On cross-examination, the victim testified that Defendant never personally invited
the victim to his house, and he did not pressure the victim to drink alcohol or watch
pornography on television. The victim admitted that he asked for alcohol the last time
that he was at Defendant’s house. He recalled talking to a woman a few weeks after he
disclosed the rape. The victim told the woman that he went to Defendant’s house three

                                          -3-
times, and Defendant was at the house one of those times. He did not feel comfortable
telling the woman the whole truth and everything that went on. He said that he was
afraid to tell her how many times he went to Defendant’s house and what he was doing
there.

        The victim testified that he was wearing tight stretchy pants at the time of the rape.
He described them as “like the ones you probably get from like Hot Topic or kind of
store like that.” He also usually wore “band shirts.” The victim did not recall how his
pants were removed, and he said that Defendant pushed him from the shoulder, and he
was face down on the bed. He did not know how long the rape lasted, and he could not
do anything to stop it. The victim testified: “I was like I blacked out once my face hit
the bed. I couldn’t - - I wasn’t - - I was kind of shocked at the moment. I didn’t know
what was going on and I felt a sharp pain.” The victim said that he could not “really
move,” and it “hurt real bad.” He felt as though he “couldn’t do anything about it.” The
victim testified that he felt a hand on his back, and he knew that it was J.D.’s hand
“because it felt gentle [.]” He heard J.D. yelling “stop you’re hurting him.” The victim
again testified that J.D. hugged him, and the victim went to sleep. He did not recall
telling the woman during the interview that he went into the living room after the rape
and slept on the couch with J.D. The victim also did not recall telling the woman during
the interview that Defendant used baby oil from the nightstand and that the rape lasted
approximately fifteen to thirty minutes.

        The victim did not recall every time that he went to Defendant’s house but he said
that Defendant was there. However, Defendant would sometimes leave after the victim
got there. He did not recall telling Officer Mobley that he had been to Defendant’s house
four times, that Defendant was not there the first two times, and that Defendant was only
there for fifteen minutes the third time the victim was there. The victim testified that he
spent the night at Defendant’s house two times. On redirect examination, the victim
testified that he never returned to Defendant’s house after the rape. He estimated that he
had been to Defendant’s house four or five times.

         M.C was seventeen at the time of the trial, and he attended Hickman County High
School with the victim, and he knew J.D. He said that the victim was younger than he
was. M.C. testified that during the spring of 2013 he and the victim would occasionally
hang out after school and go to Defendant’s house or go skating. M.C. noted that he was
still struggling with the passing of his mother at the time. He said that his friend, D.W,
was Defendant’s son. M.C testified that he and D.W. were in band together. M.C. said
that he went to Defendant’s house sometimes with D.W. M.C. testified that he and
Defendant were “pretty good friends,” and they had conversations about M.C.’s life.
M.C. told Defendant about his relationships and girlfriends.



                                            -4-
        M.C. testified that he was at Defendant’s house once or twice when the victim was
there. Defendant was also there when the victim was there. M.C. testified that
Defendant had alcohol at the residence most of the time when they were there. M.C.
testified that they all would “pitch in money and [Defendant] would go to Dickson and
buy some.” He said that Defendant would either purchase Jagermeister or Vodka. M.C.
recalled a point when the victim stopped coming to Defendant’s house. Defendant would
ask M.C. if he knew when the victim was coming over again. M.C. testified that
Defendant would also say, “I want to go over like the other night again, and then he
would be kind of hinting that it - - it be [sic] kind of like nudging at me. . .” M.C. said
that he and Defendant had been talking about relationships when Defendant asked about
the victim. M.C. testified that he spent the night at Defendant’s house most of the time.
On cross-examination, M.C. testified that Defendant never forced him to drink alcohol.

        J.D. testified that he currently lives in Hendersonville, Tennessee with his mother
and is enrolled in an online school. He previously lived with his father in Hampshire,
Tennessee, located “technically” in Maury County but he had attended Hickman County
Middle School. He was friends with D.W. who introduced him to Defendant. J.D.
testified that D.W. referred to Defendant as his “uncle.” They stopped by Defendant’s
house one night on Halloween and stayed approximately fifteen to thirty minutes. After
that, J.D. testified that he visited Defendant’s house “maybe every other weekend.” J.D.
said that M.C. and the victim would come over to Defendant’s house. J.D. had known
the victim since they were both in seventh grade. J.D. thought that the victim went to
Defendant’s house with J.D. two or three times. He said: “Sometimes we would just sit
there and listen to music. Sometimes there would be drinking involved, but I would just
mainly be hanging out with my friend, you know, we would just do typical stuff, talk so -
-[.]” J.D. testified that Defendant sometimes had Vodka at the house, and one time there
was rum or Jagermeister.

        J.D. testified that he spent the night at Defendant’s house [m]ost of the times that
[he] went over there.” The victim was not with him every time that he stayed at
Defendant’s house. J.D. testified that his memory of the night of the offense was a “little
fuzzy.” However, he distinctly remembered the victim “on the bed and I remember [the
victim] was in pain and I was telling [Defendant] to stop.” He also told Defendant that he
was hurting the victim. J.D. specifically testified that Defendant was penetrating the
victim’s anus with Defendant’s penis. J.D. testified that he could tell from the victim’s
facial expression that he was in pain. He did not recall if the victim said anything. J.D.
testified that he was on the bed next to the victim when the rape occurred. He did not
recall how the victim’s pants were removed, and he said that Defendant was wearing
pants but that they were unzipped and pulled slightly down. J.D. testified that the rape
lasted approximately fifteen minutes, and he “felt powerless.” He thought that he hugged
the victim after the rape, and they both went to sleep.


                                           -5-
       J.D. testified that he could not remember everything that happened because “[w]e
were inebriated.” J.D. thought that he had been drinking Vodka and that he had more to
drink than the victim. He believed that the victim went to Defendant’s house with him
one time after the rape occurred.

       On cross-examination, J.D. testified that Defendant never forced him to drink
alcohol. He said that Defendant was at the house every time that J.D. was there with the
victim. J.D. did not believe that anyone other than he and the victim was at Defendant’s
house on the night of the rape. J.D. testified that he and the victim were lying on the bed
with their head on the head board and their feet vertically on the bed. He said that they
were not lying on the edge of the bed. J.D. thought that he and the victim had been in the
bedroom talking for approximately thirty to forty-five minutes when Defendant walked
into the room. J.D. testified that he did not call anyone to help stop the rape because he
was afraid. The first time that he told anyone what happened was when his principal
asked him about it.

       Sergeant Levy Mobley of the Hickman County Sheriff’s Office testified that he
was working as a detective for the sheriff’s office in the spring of 2013. He received
information during that time that teenage boys were “hanging out” at Defendant’s
residence.

        Sergeant Mobley interviewed the victim on April 19, 2013, at the victim’s home.
The victim’s mother was present, and Detective Mobley asked the victim about what
went on at Defendant’s house. Detective Mobley testified that the victim was “reserved,”
and he would not give Detective Mobley much information. The victim admitted to
being at Defendant’s house and that he and other friends drank alcohol and watched
pornographic movies while there. He told Detective Mobley that he had been to
Defendant’s house three to four times. According to Detective Mobley’s notes, the
victim said that Defendant was not at the house the first two times that the victim was
there. The victim also said that Defendant was there for approximately fifteen minutes
the third time, and Defendant was there the fourth time for the entire time the victim was
at the house. The victim did not tell Detective Mobley anything about what happened to
him personally at Defendant’s house. Detective Mobley did not press the victim on the
issue because it made Detective Mobley “a little bit uncomfortable.” When asked why it
made him uncomfortable, Detective Mobley testified: “Well, because he’s a child and
because of the allegations that I was aware of that been [sic] going on over there, I was a
little uncomfortable with it.”

      Detective Mobley also talked with Defendant about what may or may not have
been going on at his house. He testified:



                                           -6-
        [Defendant] advised me that the boys, you know, they would come over
        sometimes. He - - he had a son named [D.W.] that I guess they were
        supposedly friends and that’s - - that was the connection, but anyway
        they - - he had - - he let boys come over and they stay around his house.

Defendant told Detective Mobley that he would allow the boys to drink “Fanta” and
watch movies. Defendant also told him that he would talk to the boys about their
problems at school and “stuff like that.” Detective Mobley testified that Defendant
denied allowing the boys to watch pornography, and he said that they only watched
cartoons. Defendant told Detective Mobley that he kept alcohol in the refrigerator but
that he never provided any to the boys.

       On May 2, 2013, Detective Mobley was called to the Hickman County Middle
School by the Principal. He spoke with J.D. and the victim, who was visibly upset and
crying. Detective Mobley asked the victim specific and detailed questions, and their
conversation lasted fifteen to twenty minutes. He said that the victim’s demeanor was
different than their first conversation on April 19, 2013. He also noted that victims of
“sexual crimes don’t always admit to it at first.” Detective Mobley then referred the
victim to the Child Advocacy Center to be interviewed. Detective Mobley also
interviewed M.C. and D.W. Detective Mobley testified that the victim told him at the
school that he had been to Defendant’s house more than twice. He admitted that there
were some small inconsistencies between what the victim told him on April 19, 2013, and
what the victim told him on May 2, 2013, about how many times he was at Defendant’s
house. When asked if the inconsistencies concerned him, Detective Mobley testified:

        Well, I mean it didn’t really concern me because like I said before, it
        didn’t surprise me on the first interview the fact that he didn’t reveal
        anything, didn’t - - because I’m sure he was ashamed and probably was
        a little embarrassed and didn’t want to - - you know, I kind of took him
        by surprise because they had no idea why I was there . . .

       Charlsi Legendre was working at the David House Child Advocacy Center in May
2013 as a forensic interviewer, and she interviewed the victim. The interview was video
and audio recorded. Ms. Legendre testified that the victim was “very closed” and “very
guarded.” She also noted that he was not comfortable. Ms. Legendre testified that she
gave a copy of the recorded interview to Detective Mobley. On cross-examination, Ms.
Legendre testified that the victim was not emotional during the interview. She said that
there were “some differences in some things” which she said was “typical of teenaged
boys.” The victim told her that he had been to Defendant’s house three times. Ms.
Legendre testified that the victim originally said that Defendant was at the house when he
was there on one occasion, “but then he followed it up with a detail of two separate
incidents.”

                                          -7-
       On cross-examination, Ms. Legendre testified that according to her report, the
victim said that J.D. was in the room during the rape, and J.D. had been back to
Defendant’s residence. The victim said that he thought the rape lasted between fifteen
and thirty minutes. The victim also said that he fell asleep on the couch with M.C. after
the rape was over. On redirect examination, Ms. Legendre testified that the victim’s
story never differed with respect to him being raped once while J.D. was in the room.
She said that there were no inconsistencies in the victim’s story other than the number of
times Defendant was at the residence when the victim was there and whether M.C. was
present at the time of the rape. Ms. Legendre also noted that “as the interview progressed
[the victim] kind of clarified himself.”

Defendant’s Proof

      Defendant testified that in March and April of 2013, he was living on Highway 48
North. He was disabled and not working at the time due to severe liver disease.
Defendant said that he was also enrolled in the University of Phoenix.

       Defendant testified that he did not rape the victim or touch him “sexually in any
way.” He said that there was alcohol at his house because of his roommate but
Defendant denied giving it to any children. Defendant testified that he occasionally
drank beer, and J.D. would bring “Faygo” to the house from the store next door.
Defendant also denied watching pornography with the victim or J.D. He testified that he
never knew when the victim was coming to his house. Defendant testified that he had no
running water because his meter had been removed from the house.

        On cross-examination, Defendant testified that D.W., who is now 20 or 21 years
old, is his son. Defendant described their relationship as good. He said that D.W. did not
live with him but D.W. would have his friends come to Defendant’s house. Defendant
remembered the victim, J.D., and M.C being there. He thought that he also remembered
someone named “Chance,” who had dropped D.W. off at Defendant’s house “one time
or something.”

       Defendant testified that in March and April of 2013 D.W. rarely came to
Defendant’s house. He said that D.W.’s friend came to Defendant’s house when D.W.
was not there to meet with either D.W. or “Elizabeth.” Defendant testified that the
friends would sometimes hang out with him if D.W. or Elizabeth was not there.
Defendant said that he developed a relationship with the young boys and that they would
“drop by and talk to [him] about stuff and ask him [stuff] about school, and some of them
had girlfriend problems and just random stuff.” He said that M.C. struggled with the
passing of his mother. Defendant also said that he would provide food to M.C. “if he was
there at night.” He thought that M.C. spent the night at his house one time.

                                          -8-
        Defendant testified that J.D. did not come to the house very often because he was
going to move to Hendersonville with his mother. He said that J.D. stopped by
occasionally on Saturdays to meet with “Elizabeth.” Defendant estimated that J.D. was at
his house “no more than 10 times,” and J.D. spent the night there four times. Defendant
testified that he and J.D. were alone at the house on one or two occasions, and they
sometimes watched movies such as “True Blood,” and “the Vampire Diaries and stuff.”
They also may have watched one of the “Twilight” movies. Defendant said that he did
not watch the movies with D.W., M.C., or the victim.

       Defendant testified that D.W. stayed at his house “continually for about a week[]”
because D.W. and his girlfriend had some “issues.” He said that other times D.W.
stopped by “randomly.” Defendant testified that there were three bedrooms in his house.
Defendant said that one of the bedrooms belonged to D.W., one belonged to him, and the
third bedroom did not have electricity and was used for storage. Defendant also testified
that since D.W. was not at the house very often, Defendant had obtained a roommate.
Defendant also noted that he “slept a lot on the couch.

        Defendant testified that alcohol was stored in the refrigerator and that it was
“[b]eer mostly.” He denied that the alcohol belonged to him. Defendant said that he
occasionally drank alcoholic beverages to “flush [his] kidneys out.” He said that it was
never more than one beer. Defendant testified that there was a television in the living
room that was connected to a VCR. Defendant denied watching any pornography on the
television. He admitted that there was some pornography stored in the bedroom used for
storage. Defendant testified that there was no plumbing in his house and that he had told
the boys that visited his house to go next door to McDonald’s to use the restroom rather
than relieving themselves in his yard.

       Defendant testified that the victim was only at his house twice. He said:

        [The victim] came both times with [J.D.]. I had no previous knowledge
        of him showing up. The intention was that Jake was coming to meet
        with Elizabeth. She was supposed to pick him up and they were
        supposed to go to her house so, occasionally, Elizabeth didn’t show up
        and he was kind of stranded.

Defendant thought that M.C. was at the house one time while the victim was there. He
said that the victim spent the night at his house one time, and the victim and J.D. slept in
the “front bedroom,” and Defendant slept on the couch. Defendant said that the victim
and J.D. were talking and playing “their I-pod things” on the night that the victim spent
the night. Defendant did not attempt to call the victim’s mother or father that night since
the two boys were “stranded” at his house. Defendant testified that it did not concern

                                           -9-
him that two fourteen-year-old boys that he was not related to were spending the night at
his house. He never asked them to leave or call their parents to pick them up. Defendant
testified that neither the victim nor J.D. drank any alcohol that night. He thought that
D.W. stopped by the house earlier that night but then left with his girlfriend.

       Defendant testified that he did not talk to the victim much “because he was there
with [J.D.],” and the victim’s school still didn’t . . .affect [him].” Defendant testified that
the boys randomly showed up at his house, and he was “hospitable” to them. He denied
talking to the boys about what was going on in their life. He thought that he told
Detective Mobley that the boys knew they could talk to him if they needed to. He denied
saying that he would talk to them about what was going on at school or that he would
help them address “any type of identity issues.” Defendant testified that he did not want
to have a relationship with any of the boys but he never told them to leave his house. He
said that he would have discussed some issues with the boys but other issues needed to be
addressed by their parents.

        Defendant testified that he had met M.C.’s father but he never contacted him to
express concern about how M.C. was processing the death of his mother. He also never
called J.D.’s parents to let them know that he was cutting himself. Defendant admitted
that J.D. told him that he was cutting himself, and he showed the cuts to Defendant.
Defendant said that he told D.W. and M.C. that they needed to talk with J.D. about the
cutting. Defendant was not sure if he was present each time that the victim was at his
house because there was a key on the front porch, and D.W. knew where it was.
Defendant again denied giving the boys alcohol or mixing alcoholic drinks for them. He
said that he did not pour “shots” for the victim. Defendant said that he last saw M.C. and
J.D. in April of 2013. He did not recall the last time that he saw the victim. Defendant
testified that he was surprised by the allegations that the victim made against him. He
denied ever asking M.C. when the victim was coming back to the house, and he denied
talking about M.C.’s “sex life.”

       On redirect examination, Defendant asserted that he is homosexual. He thought
that D.W. was his biological son although that had never been confirmed. He noted that
he went through a “bisexual stage” where he thought that he “could deal with females,
but over a period of time [he] realized that [he] was more interested in males[.]”

State’s rebuttal Proof

       D.W. testified that he is currently twenty years old. He attends school and works
at McDonald’s. He described his relationship with Defendant as follows: “[H]e was
friends with my mom for 20 plus years and he was like a father figure to me growing up
so naturally I just heard he moved in so I started going down there.” D.W. testified that
his mother had told him that Defendant was not his biological father.

                                            - 10 -
      D.W. testified that J.D. is one of his friends, and they met while D.W. was living
with another friend. D.W. testified that he was living at Defendant’s house between
September and November of 2012. He also stayed at his girlfriend’s house sometimes.
D.W. wanted J.D. to come over to Defendant’s house to “hang out.” D.W. testified that
he saw M.C. at the house during that time, and there was alcohol in the home that
Defendant bought and brought in. He said that Defendant offered some of the alcohol to
him but he did not drink any. D.W. testified that he saw J.D. and M.C. drinking alcohol
and Defendant’s house and that Defendant mixed their drinks and gave it to them.

Analysis

   A. Failure to Strike a Juror for Cause

        In order to protect the identity of the juror who is the subject of this issue, we will
identify her as “Juror A.” Defendant argues that the trial court erred by failing to strike
Juror A from the jury panel because Juror A stated that she had been raped when she was
between the ages of ten and thirteen by a family member. However, Juror A also told the
trial court that she could be impartial if selected as a juror.

        Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant
the right to trial “by an impartial jury.” In fact, every accused is guaranteed “a trial by a
jury free of . . . disqualification on account of some bias or partiality toward one side or
the other of the litigation.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993)
(citing Tooms v. State, 197 Tenn. 229, 270 S.W.2d 649, 650 (Tenn. 1954)). In
Tennessee, challenges to juror qualifications generally fall into two categories: propter
defectum, “on account of defect”; or propter affectum “for or on account of some
affection or prejudice.” Carruthers v. State, 145 S.W.3d 85, 94 (Tenn. Crim. App. 2003);
Akins, 867 S.W.2d at 355. General disqualifications such as alienage, family
relationship, or statutory mandate are classified as propter defectum and must be
challenged before the return of a jury verdict. Akins, 867 S.W.2d at 355. An objection
based upon bias, prejudice, or partiality is classified as propter affectum and may be
made after the jury verdict is returned. Id. “Where a juror is not legally disqualified or
there is no inherent prejudice, the burden is on the defendant to show that a juror is in
some way biased or prejudiced.” State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993)
(citing Bowman v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980). The defendant
bears the burden of proving a prima facie case of bias or partiality. Id. (citing Taylor,
669 S.W.2d at 700).

      Relative to challenges of prospective jurors for cause, Rule 24(b), Tennessee
Rules of Criminal Procedure, provides in part as follows:


                                            - 11 -
        Any party may challenge a prospective juror for cause if:

        (1) There exists any ground for challenge for cause provided by law; or

        (2) The prospective juror’s exposure to potentially prejudicial
        information makes him unacceptable as a juror. Both the degree of
        exposure and the prospective juror’s testimony as to his state of mind
        shall be considered in determining acceptability. A prospective juror
        who states that he will be unable to overcome his preconceptions shall be
        subject to challenge for cause no matter how slight his exposure. If he
        has seen or heard and if he remembers information that will be
        developed in the course of the trial, or that may be inadmissible but is
        not so prejudicial as to create a substantial risk that his judgment will be
        affected, his acceptability shall depend on whether his testimony as to
        impartiality is believed. If he admits to having formed an opinion, he
        shall be subject to challenge for cause unless the examination shows
        unequivocally that he can be impartial.

Although jurors may be excluded for cause if they have formed an opinion which will
prevent impartiality, “[j]urors need not be totally ignorant of the facts of the case on
which they sit [and even] the formation of an opinion on the merits will not disqualify a
juror if [the juror] can lay aside [his or her] opinion and render a verdict based on the
evidence presented.” State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). The United
States Supreme Court has made the following observation:

        In these days of swift, widespread and diverse methods of
        communication, an important case can be expected to arouse the interest
        of the public in the vicinity, and scarcely any of those best qualified to
        serve as jurors will not have formed some impression or opinion as to
        the merits of the case. This is particularly true in criminal cases. To
        hold that the mere existence of any preconceived notion as to the guilt or
        innocence of an accused, without more, is sufficient to rebut the
        presumption of a prospective juror’s impartiality would be to establish
        an impossible standard.

Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Thus, so long
as a juror can set aside any previously-formed opinions and render a verdict based upon
the evidence presented in court, the juror may properly participate in the case. Id.
Irrespective of whether the trial judge should have excluded the challenged jurors for
cause, any possible error is harmless unless the jury who actually heard the case was not
fair and impartial. Howell, 868 S.W.2d at 248; State v. Thompson, 768 S.W.2d 239, 246
(Tenn. 1989). The failure to correctly excuse a juror for cause is grounds for reversal

                                           - 12 -
only if the defendant exhausts all of his peremptory challenges and an incompetent juror
is forced upon him. Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 101 L.Ed.2d 80
(1988); State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990).

        In the case under submission, it is not clear from the record whether Defendant
did, in fact, exhaust all of his peremptory challenges prior to requesting that Juror A be
removed from the panel for cause. The record shows that challenges were exercised but
not by which party. At one point, the trial court noted that the “defense [was] nearly out
of challenges.” Even if Defendant exhausted all of his preemptory challenges, there is no
evidence that the jury who heard the case was not fair and impartial. This alone prevents
him the relief he seeks. We further conclude that the trial court did not err when it
declined to excuse Juror A for cause. The following exchange took place between the
trial court and Juror A:

               THE COURT:          What has been your life experience with the
               offense of rape or sexual assault?

               JUROR A:           I was raped as a child.

               THE COURT:         Okay. Was it a family member or non-family?

               JUROR A:           Family Member

               THE COURT:         It was by a family member. Have you had to
               have counseling or any kind of - -

               JUROR A:           Counseling, yes.

               THE COURT:          And that was obviously a traumatic thing to
               have happen to anybody in life. By the same token, you
               understand [Defendant] is presumed innocent. He comes to this
               Court with that presumption. And it is the burden of the State of
               Tennessee to establish his guilt beyond a reasonable doubt. And
               both the State and the Defendant are entitled to have jurors that
               will be fair and impartial. And the question I have for you is
               whether you can put that life experience out of your mind and
               judge the guilt or innocence of [Defendant] strictly based on the
               evidence you hear?

               JUROR A:           I believe I can.

               THE COURT:         Okay. Very well.

                                          - 13 -
       Juror A told defense counsel that the person who raped her was never prosecuted.
When asked if she would hold Defendant’s denial of the rape in this case against him,
Juror A replied: “No.” Juror A clearly indicated that she could set aside any previously-
formed opinions and render a verdict based upon the evidence presented in court,
meaning that she could properly participate in the case. See Irvin, 366 U.S. at 722-23.
The Defendant is not entitled to relief on this issue.

   B. Failure to Declare a Mistrial

       Defendant argues the trial court abused its discretion by denying his motion for
mistrial made during after the victim’s direct examination. We disagree.

       Courts should only declare a mistrial in a criminal matter when required by
manifest necessity. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
A mistrial is an appropriate remedy when the trial cannot continue or a miscarriage of
justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim.
App. 1994). The decision to grant a mistrial is within the sound discretion of the trial
court, and this Court will not interfere absent a clear abuse appearing on the face of the
record. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). The party seeking the mistrial
has the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385,
388 (Tenn. Crim. App.1996).

       During the victim’s direct examination, the State asked why he decided to talk to
Ms. Thigpen at school. The victim replied: “She told me that I could trust her and I
believed her and he was already, I guess, he was already caught. He was already in jail.”
There was no objection to the victim’s testimony at that time. After the victim’s direct
examination, there was a short recess, and the jury was excused. The following took
place:

        [Prosecutor]:      This is a difficult trial to have because there’s so
        many other events and so many other charges that [Defendant] had. I
        want to just make sure that - - that - - and we’ve spoken to [the victim]
        and [the victim] knows this, but just to make sure that during cross-
        examination if [Defense Counsel] were to ask him a question, that he
        still knows he’s not supposed to talk about other victims, that he’s not
        supposed to talk about [Defendant] - - and sorry, I refer to him as
        [Defendant]. That what [the victim] has been calling him - - that
        [Defendant] has been arrested for other crimes, that he’s been charged
        with other crimes and sometimes it’s difficult as you can imagine when
        you’re under the stress of cross-examination, and so I want - - and [the
        victim] knows this, that I just want him to understand that no time is
        [Defense Counsel], I would assume, soliciting any type of answers that
                                          - 14 -
would indicate that [Defendant] that - - there are other crimes, that he’s
been arrested, that he’s been in jail, and so I wanted to just make sure we
are clear on that.

And then also we have it - - forensic interview that [the victim] did that
we listened to last in out last hearing and it’s very difficult to hear as we
all recall. The attorneys have agreed that the summary that the forensic
interviewer prepared is accurate as to the video, and so when [Defense
Counsel] cross-examines [the victim], he may ask him a question; do
you recall speaking with the forensic interviewer, do you recall making
this statement and [the victim] may or may not remember saying it. If he
doesn’t remember it, the State is fine with [Defense Counsel] showing
[the victim] the written summary, asking him to read it and then at that
point, [the victim] at that point can either say, yes, you know, I
remember saying it. And that’s how we’re going to try to do it without
actually playing the video, and then I wanted [the victim] to understand
the process because it’s confusing, obviously, when you’re not an
attorney.

*    *       *

[The Court]:        [To the victim] But under our rules of evidence,
under most circumstances, it’s improper for the jury to know that he’s
been charged with the other offenses because [their] - - [their] focus is
on the offense that related to you.

So unless some question is asked of you that you think would require
you to speak about other offenses, you shouldn’t do that. If you think it
does require you to speak about other offenses then you shouldn’t do
that. If you think it does require you to speak about other offenses then
you say I’d like to ask the judge a question. So before you answer the
question that would relate to any kind of other offense, you just stop and
I’ll let the jury go out and then you can - - you can ask for clarification,
okay?

[The victim]:       (Nods head.)

[The Court]:       Very good. And then the lady that Ms. Mason talked
to you about that you went to visit and you didn’t remember her name
and you didn’t remember where you went, she recorded your meeting
with her and she’s prepared a summary, so it on cross-examination
you’re asked questions about what you said to her, if you don’t

                                   - 15 -
remember, that’s fine. [Defense Counsel], who represents [Defendant],
will let you read the summary, and then if it refreshes your memory you
can then answer the question. If it doesn’t refresh your memory you
don’t have to answer. You can just say I’m sorry, I still don’t remember.
You understand?

[The victim]:       Yes, sir.

[The Court]:        Very well. Let’s take a break.

[Defense Counsel]:Judge, I may need to ask her - - if I recall, I believe in
his prior testimony he did mention something that when he once talked
to Ms. Thigpen she told him that my client was already in jail so that he
could trust her.

[The Court]:        Yes.

[Defense Counsel]: May need to talk about a limiting jury instruction on
that.

[The Court]:        Well, you - - you be thinking about it. It was very
quick and it was - - he was very soft when he said it.

[Defense Counsel]: Okay. And I was in the middle of - -

[The Court]:       I understand, but if I give a limiting instruction then I
am absolutely will be highlighting it, but - -

[Defendant Counsel]: I understand.

[The Court]:          But if the defense wants a limiting instruction, I will
give a limiting instruction. So it’s clearly his reference to the fact that
[Defendant] had been caught and was in jail, I think those were the
words that he used, came out, but I picked up on it, but it was said softly
and I’ll let you - - I’ll let you - -

[Defense Counsel]: I mean I would ask for a mistrial at this time based
on that.

[The Court]:         Well, and I would overrule your mistrial, but I will
tell you without equivocation I’ll tell the jury that they’re totally directed
to disregard that statement.

                                    - 16 -
        [Defense Counsel]: Okay. If I - - let me talk to my - -

        [The Court]:         That’s right. You talk to your client, and if there’s
        any - - any - - any desire whatsoever on your client’s part for me to tell
        the jury that that statement is to be totally disregarded, I will be happy to
        do that.

        Our review of the record shows that after the recess, Defendant began cross-
examination of the victim without requesting a curative instruction concerning the
victim’s prior testimony. Based on our review of the record, “manifest necessity” did not
require a mistrial. As set forth above, the trial court stated that the victim was very soft
spoken when he said that Defendant had been caught and was in jail when the victim
agreed to talk to Ms. Thigpen. Defense counsel did not express any disagreement. Also,
defense counsel did not specifically request a curative instruction after he was allowed
time to discuss it with Defendant. Defendant has not met his burden of establishing the
necessity for a mistrial and is, therefore, not entitled to relief on the issue. We affirm the
trial court’s denial of the defendant’s motion for mistrial.

   C. Sufficiency of the Evidence.

       Defendant contends that the evidence at trial was insufficient to support his
conviction for rape. Specifically, Defendant asserts that the evidence failed to show he
“actually penetrated the victim.” He also states that there were numerous discrepancies
in the testimony of the victim and J.D. The State responds that the evidence was
sufficient to sustain Defendant’s convictions.

       The standard for appellate review of a claim challenging the sufficiency of the
State’s evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a
claim of insufficient evidence, appellant must demonstrate that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is
predicated on direct or circumstantial evidence, or a combination of both. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

       On appellate review, ‘“we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,

                                            - 17 -
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury’s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       A applicable to this case, rape is the unlawful sexual penetration of a victim by the
defendant accomplished by force or coercion, 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, or where the defendant knows or had reason to know that the victim is
mentally incapacitated or physically helpless. T.C.A. § 39-13-503(a)(2)-(3). “Sexual
penetration” includes sexual intercourse, cunnilingus, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body into the genital or anal openings
of the victim’s body. T.C.A. § 39-13-501(7).

        The victim testified that Defendant mixed rum and Mountain Dew prior to the
rape, and the victim drank two cups of the mixture. The victim said that he began to feel
lightheaded and off balance. He further said, “Like whenever I was turning or tried to
move my eyes everything felt like it was going like in slow motion and moving all
together I guess.” The victim testified that Defendant also showed him and J.D. some
pornography that was playing on television. Later on, while the victim and J.D. were
sitting on the bed and talking in the back room of the house, Defendant walked in and
asked the victim if he wanted to “try anal or anything with a guy,” and the victim told
him that he did not want to. The next thing the victim remembered was being face down
and feeling a sharp pain inside his “butt.” He also felt a “ripping sensation.” J.D.
testified that he was in the room during the rape, and he said that Defendant’s pants were
unzipped and pulled slightly down. He specifically testified that Defendant was
penetrating the victim’s anus with Defendant’s penis. He also said that he saw Defendant
“thrusting” with his body. J.D. testified that the victim’s pants were unzipped and pulled
down during the rape. J.D. said that he told Defendant to stop and that Defendant was
hurting the victim.



                                           - 18 -
        The jury, as was its prerogative, obviously accredited the testimony of the State’s
witnesses and resolved any discrepancies in favor of the State. Therefore, we conclude
that the evidence is sufficient to support Defendant’s conviction for rape.

   D. Sentencing

       The Defendant claims the trial court abused its discretion by ordering him to serve
twelve years for his rape conviction. However, we find that the trial court imposed a
sentence within the appropriate range after a proper application of the purposes and
principles of our Sentencing Act.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A trial court abuses its discretion when it applies an incorrect legal
standard, reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.” State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014) (citing State v.
Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). “[A] trial court’s misapplication of an
enhancement or mitigating factor does not remove the presumption of reasonableness
from its sentencing determination.” Bise 380 S.W.3d at 709. Moreover, this court may
not disturb the sentence even if it had preferred a different result. See State v. Carter, 254
S.W.3d 335, 346 (Tenn. 2008). The same standard applies when a defendant challenges
the denial of probation or other alternative sentence. State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012).

       To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-
35-210(e) (2010); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the
articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Id. at 705-06. The party appealing the sentence has
the burden of demonstrating its impropriety. T.C.A. § 40-35-401 (2010), Sent’g Comm’n
Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In determining the proper sentence, 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 in the defendant’s own behalf
                                            - 19 -
about sentencing. See T.C.A. § 40-35-210(b) (2010); State v. Taylor, 63 S.W.3d 400,
411 (Tenn. Crim. App. 2001). The trial court should 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(5) (2010).

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

      (1) The minimum sentence within the range of punishment is the sentence
      that should be imposed, because the general assembly set the minimum
      length of sentence for each felony class to reflect the relative seriousness of
      each criminal offense in the felony classifications; and

      (2) The sentence length within the range should be adjusted, as appropriate,
      by the presence or absence of mitigating and enhancement factors set out in
      §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2010).

       Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See T.C.A. § 40-35-114 (2010 & Supp.
2013); see also Bise, 380 S.W.3d at 699 n. 33, 704; Carter, 254 S.W.3d at 343. “[A] trial
court’s weighing of various mitigating and enhancement factors [is] left to the trial
court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is
free to select any sentence within the applicable range so long as the length of the
sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at
343. “[Appellate courts are] bound by a trial court’s decision as to the length of the
sentence imposed so long as it is imposed in a manner consistent with the purposes and
principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

       In this case, the trial court properly applied the principles and purposes of
sentencing and explained its reasoning for the sentence imposed. As such, we review the
trial court’s sentencing decision for an abuse of discretion with a presumption of
reasonableness.

       The applicable sentencing range for a Range I offender convicted of a Class B
felony is 8 to 12 years. T.C.A. § 40-35-112(a)(1)-(2). The trial court found that
Defendant had “a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range.” T.C.A.§ 40-35-114(1).
The trial court found this factor to apply because Defendant had a history of providing
alcohol to minors and showing pornography to them. The trial court also made the
following findings:


                                          - 20 -
In factor number 3 the State would urge that there is more than one
victim here. The Court is persuaded that the defense has cited law that
establishes that that factor strictly does not apply. And while the strict
application of that factor is not appropriate by the Court, the Court does
believe that [J.D.], who himself was also under the influence of alcohol
and acknowledged that during the course of this trial, found himself in a
position of helplessness in trying to come to the rescue of his friend who
was being raped by [Defendant]. So while I don’t believe the factor
applies in the strict sense, the facts themselves are something the [court]
clearly takes into consideration in making a decision.

In factor 4, whether the victim of the offense was particularly vulnerable
because of age or physical or mental disability. Again, the Court finds
itself with a 14 year old boy. I don’t have any evidence before me that
he was particularly vulnerable. I think the strict application of that
enhancing factor would be inappropriate based upon the law that the
Defense has sited [sic] to the Court. But I can’t ignore, while not
employing that as an enhancement factor, I can’t ignore the fact that
[Defendant] to some measure incapacitated the victim through his supply
of alcohol to him. And that in combination with [Defendant’s] size and
weight made the victim incapable of resisting. So, I don’t find the strict
application of number 4 to be appropriate, but the facts are certainly to
be taken into consideration in the overall decision of the Court.

Factor number 6 relates to personal injuries, and the Court would note on
that regard that the presentencing report in this case establishes that the
victim has experienced nightmares. He had thought a lot about this - -
this rape that occurred. He has experienced nightmares. He has
experienced depression to the point where he has wanted to commit
suicide. And it has caused pain in his anal area. He also notes for the
Court’s consideration in the last two years he has to undergo many blood
test[s] to be checked for STD’s. So, it has created fear and anxiety with
him, apprehension. He also notes that he has been scared to go
anywhere because of the fact that he lives here in Hickman County and
[Defendant] in the past has lived here in Hickman County. He - - until
the trial of this case, the victim was afraid to get out and go places for
fear that he would see [Defendant]. And that he’s not even felt safe in
his own home. Clearly the victim has been emotionally injured in a
significant way. And the victim notes that coming to Court, seeing
[Defendant] and talking about this has brought all of these feelings back.
He further notes in the victim impact statement, he felt powerless. He
couldn’t do anything in defense because he was intimidated and that the

                                  - 21 -
event has put him through so much stress. And following the event he
has suffered depression, guilt, and stress.

The State has not supplied the Court with any case from the Appellate
Court or Supreme Court that would say that under the facts and
circumstances on this particular case the physical injuries that were
sustained by the victim, which has resulted in prolonged difficulty with
hemorrhoids and the emotional injury sustained by the victim which at
times has caused him to even consider suicide, would be considered
particularly great.

Based upon the law the Court has been furnished by the Defense, the
Court believes that the strict application of that factor might be incorrect.
But I can’t ignore those facts that I just related to everyone, at least in
making my overall decision.

Number 7 is the issue of whether the offense was committed to gratify
the defendant’s desire for pleasure or excitement. [Defense Counsel]
and I had a conversation about that when the Defense was arguing that
there’s no evidence to that effect. The Court just simply at that time and
still disagrees with the Defense on that point.

The evidence establishes that [Defendant] approached the victim, asked
him if he wanted to do anal. The victim declined, and he then came in
and disrobed the victim, disrobed himself at least partially and
commenced to rape the victim. That evidence leads to the Court’s
inescapable conclusion that this conduct of [Defendant] was for his own
pleasure or excitement. And it was done to gratify his desire for pleasure
and excitement. So, the Court finds that that factor does in fact apply.

On factor number 23, again, I have looked at that and it doesn’t include
alcohol. And the Defense has correctly pointed out that the Legislature
in including factor number 23 in the enhancing factors specifically uses
controlled substances, controlled substance analogue and other illegal
drugs with a minor. In other words it says, the defendant is an adult and
sells to or gives or exchanges a controlled substance, controlled
substance analogue or other illegal drug with a minor. So, the Court
believes that strict application of factor number 23 would not be
appropriate in reaching a decision.

But as I mentioned earlier I can’t ignore the fact that part of the M-O of
[Defendant] was to groom these minors through the use of alcohol and
pornography. And in this case the use of alcohol rendered both the
victim and the witness incapable of preventing this attack. So, I’m not
                                  - 22 -
        applying it strictly, but I’m noting that the facts should be taken into
        consideration and I am doing that in some measure.

        As far as mitigating factor number 1, there was no serious bodily injury
        based on the Code definition. The Court agrees with the Defense that
        based upon the definition set forth in our Tennessee Code regarding the
        definition of serious bodily injury, it doesn’t exist. There is clearly
        bodily injury involved here, but it is not of the kind that is described by
        our Legislature.

See T.C.A. §§ 40-35-114(3), (4), (6), (7), and (23); § 40-35-113(1).

       The State also asked the trial court to consider enhancement factor fourteen in that
Defendant abused a position of public or private trust and used that in a manner that
significantly facilitated the commission of fulfillment of the offense. T.C.A. § 40-35-
114(14). The State argued that Defendant had a public trust with the young boys at his
house by providing him with a place to stay, and he furnished alcohol to them. The trial
court noted that if J.D. had been the victim in this case, it would have felt more
comfortable applying this factor. However, the court ultimately refused to apply factor
fourteen. The trial court then made further findings concerning Defendant’s sentence:

        However, when I look at all of the information I have before me and I go
        back to - - I go back to what I talked about earlier. And that’s
        [Defendant’s ] position in connections with his conduct. And you can
        see that in the presentencing report that’s part of the psychosexual
        evaluation and it is under the topic of attitudes. And this is what I was
        trying to talk about earlier. It says: When asked to explain events
        leading up to the sexual offense charged [Defendant] explained that there
        was one victim and one “watcher,” quote, unquote. Both being 14 year
        old boys. [Defendant] made it clear that he had a different version than
        the victim’s. He said that he reported to have met the victims, plural,
        twice because they were real tight with his 18 year old son.

        Well, we know that’s not true. We know [J.D.] had been there multiple,
        multiple times. And we know that [Elizabeth] was as much or more
        involved than [Defendant’s] son.

        And they had all gotten together to hang out. That’s true, [Defendant]
        made his home a place where teenagers go and hang out. And then he
        said he was asleep. And then it says, one victim according to
        [Defendant] said he was raped while the other boy watched. [Defendant]
        described one of the victims as being “gay”, quote, unquote.


                                          - 23 -
          And this is what he says in the presentence - - I mean the psychosexual
          evaluation. He stated that the victims did not live in his neighborhood
          but somewhere in the county. He denied - - he denied knowing where
          either victim lived. Yet the proof in this case as [sic] that - - the proof in
          the case today and before was that he was willing to give them rides to
          places they needed to go, including their homes.

          Then he says the victims lied as he would never commit rape. He
          described rape as “aggressive,” quote, unquote, and he does not feel he is
          aggressive. He has no theory to offer for why the victims would have
          lied about him.

          Now, that was the very question I put to him. And he answered the same
          way to me that he answered to the lady, I believe her name was Brakebill
          [sic] or whatever it was, that did the psychosexual evaluation. Let’s see I
          can get her name here pretty quickly.

      *        *       *

          Yes, Kelly Blackwell. He has no idea, no plausible explanation for why
          all these people would have ganged up on him and lied about him. And
          then he goes on to say this; during this assessment it became evidence
          that [Defendant] has - - has several he blames, meaning he had several
          persons, he blames for his current situation; those being his son, his
          son’s future mother-in-law, the school guidance counselor, the local
          newspaper, the local police and the victims. And this is what I want to
          highlight: Mr. Thornton took no responsibility for the situation or his
          actions.

          So in reaching the Court’s decision regarding the appropriate sentence
          within the range, I keep going back to this notion that [Defendant] is a
          sexual predator. It is that simple. And he poses an extraordinary threat
          to this community. And he is going to continue to pose that threat unless
          and until he acknowledges this culpability. Because until that happens,
          he can’t be rehabilitated and he can’t be treated.

          So, based upon all the evidence I have before me considering enhancing
          and mitigating factors, and the Court’s view of the evidence both today
          and at trial, the Court finds that the sentence should be set at 12 years.

       Because the trial court properly considered the evidence offered by the parties,
stated on the record what enhancement and mitigating factors were considered, and
complied with the purposes and principles of sentencing and imposed a within range

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sentence, the trial court did not abuse its discretion in enhancing Defendant’s sentence.
Defendant is not entitled to relief.

       Defendant also argues that he should have been sentenced to probation because his
twelve-year sentence was excessive and should be reduced. However, since we have
found that Defendant’s twelve-year sentence was properly imposed and not excessive,
Defendant is not eligible for probation. A defendant is eligible for probation if the actual
sentence imposed upon the defendant is ten years or less and the offense for which the
defendant is sentenced is not specifically excluded by statute. T.C.A. § 40-35-303(a).

       Accordingly, the judgments of the trial court are affirmed.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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