                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                 October 2, 2013 Session

              STATE OF TENNESSEE v. FRED CHAD CLARK, II

               Appeal by Permission from the Court of Criminal Appeals
                        Criminal Court for Davidson County
                    No. 2007-C-2067     Mark J. Fishburn, Judge


               No. M2010-00570-SC-R11-CD - Filed November 10, 2014




This case involves the prosecution of a father in the Criminal Court for Davidson County for
the sexual abuse of his children. After a jury found him guilty of seven counts of rape of a
child and two counts of aggravated sexual battery, the trial court imposed an effective thirty-
four-year sentence. On appeal, the defendant took issue with (1) the admissibility of
recordings of his confession to his wife, (2) the adequacy of the corroboration of his
confession, (3) the admissibility of evidence of his predilection for adult pornography, and
(4) the propriety of a jury instruction that the mental state of “recklessness” could support a
conviction for both rape of a child and aggravated sexual battery. After upholding the
admission of the defendant’s confession to his wife and the jury instructions, the Court of
Criminal Appeals decided that the admission of the evidence of the defendant’s predilection
for adult pornography, while erroneous, was harmless. The Court of Criminal Appeals also
determined that the record contained sufficient evidence to uphold three counts of rape of a
child and the two counts of aggravated sexual battery. State v. Clark, No. M2010-00570-
CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012). We granted the
defendant’s Tenn. R. App. P. 11 application for permission to appeal and now affirm the
judgment of the Court of Criminal Appeals.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
                                Appeals Affirmed

W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which S HARON G. L EE, C.J.,
J ANICE M. H OLDER, C ORNELIA A. C LARK, and G ARY R. W ADE, JJ., joined.

Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Brent C. Cherry, Assistant Attorney General; John H. Bledsoe, Senior Counsel; Victor S.
(Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                  OPINION

                                                        I.

      Chad Clark, his wife, and their two daughters, H.C. (age 6) and K.C. (age 4), were at
home on the evening of January 12, 2007.1 Mr. Clark’s mother was visiting. While his wife
was watching television, Mr. Clark, his mother, and his two daughters were using the
computer to look at pictures and videos of a recent family trip to Disney World.

      In an effort to get attention, H.C. grabbed her father’s hand and moved it between her
legs. When Mr. Clark pulled his hand away, H.C. announced that she had put her daddy’s
hand on her “coo-coo.”2 Ms. Clark took H.C. upstairs and told her that her conduct was
inappropriate. The rest of the evening continued without incident, but the Clarks’ family life
was about to change dramatically.

        While bathing K.C. the following Sunday evening, Ms. Clark told her that she should
never permit anyone to touch her private parts, and she asked K.C. whether anyone had ever
touched her inappropriately. According to Ms. Clark, K.C. replied that her father had
touched her. To demonstrate what her father had done, K.C. put her own hand near her groin
and started moving it around. K.C. then told her mother that sometimes her father “goes like
this, and sometimes he goes crazy.” She also told her mother that this happened at night
when Ms. Clark was in bed.

       Disturbed by this information, Ms. Clark gathered up H.C. and K.C. and left the
house. She told Mr. Clark they were going shopping, but instead, Ms. Clark drove to the
home of the school guidance counselor. After K.C. told the counselor that her father had
touched her private parts and had instructed her not to tell her mother about it, Ms. Clark
telephoned the Tennessee Department of Children’s Services and the Metropolitan Nashville
Police Department.




       1
           To protect the identity of the victims in this case, we are identifying them by their initials.
       2
           This is a term the children used for their private parts.

                                                       -2-
        Ms. Clark and the children spent the next few nights in a hotel. She spoke with Mr.
Clark several times by telephone. Ms. Clark did not divulge K.C.’s accusations during these
conversations. Instead, she told Mr. Clark that she needed some time away to deal with the
stress surrounding their plans to move into a new house.

        Ms. Clark met with Detective David Zoccola on January 18, 2007, at the Criminal
Justice Center in Nashville. She agreed to cooperate with the investigation of her daughters’
statements by making a “controlled” police-recorded telephone call to Mr. Clark using a
special police department telephone. During Ms. Clark’s forty-five minute conversation with
Mr. Clark, Detective Zoccola wrote notes to Ms. Clark suggesting things she could say to
elicit a confession from Mr. Clark.

        At the outset of the conversation, Mr. Clark denied touching his daughters
inappropriately and suggested that the family should seek counseling. Ms. Clark implored
him to tell the truth and told him that if he did, the family could be reunited and return to
normal. When Mr. Clark offered to “lie” and spin a contrived story about molesting the girls
so that they could come home, Ms. Clark responded that she absolutely needed to hear “the
truth.” She told Mr. Clark:

              Just say you did it so I know you did it and then we can get on
              with our lives. Just be honest with me, Chad. I don’t want to
              deal with this anymore. I want to move on. I want to start today
              being a family again. I want to come home tonight. I want to
              bring our girls. I want us to lay down in their bed and say their
              prayers like we do every night and be a family again.

Mr. Clark replied that he had “touched” his daughters but that he could not remember the
details. Toward the end of the conversation, Mr. Clark became suspicious that the call was
being monitored because he heard static on the line. He told Ms. Clark that he would call her
back soon to make arrangements for the two of them to have a conversation face-to-face.

       Mr. Clark called Ms. Clark on her cellular telephone before the police could install
a recording device on it. The police recorded Ms. Clark’s side of the conversation. During
this call, Ms. Clark made arrangements with Mr. Clark to meet him that evening in the
parking lot of the Opry Mills shopping center in Nashville.

       The police installed a recording device and a transmitter in Ms. Clark’s automobile.
At the authorities’ request, Ms. Clark signed a form consenting to having her conversation
with her husband monitored and recorded by the police. This form also stated, “I understand



                                             -3-
that any recording made will become evidence in a criminal case being investigated by Det.
David Zoccola.”

        Mr. Clark was already waiting in his automobile when Ms. Clark arrived at the
shopping center. Approximately eight police officers were nearby in unmarked vehicles
ready to listen in on the Clarks’ conversation. Mr. Clark got into his wife’s automobile and
immediately began divulging the details of occasions when he had touched his daughters
inappropriately.

       During this recorded conversation, Mr. Clark recalled the times when Ms. Clark had
caught him looking at pornography at night on the Internet. Suggesting that the pornography
was related to his conduct with his daughters, Mr. Clark explained that looking at
pornography gave him “these thoughts . . . just, you know, thinking about sex” and that these
thoughts prompted him to start looking at his daughters’ private parts when they were in the
bathtub and then to touch their genitals and to stick his finger in their anuses. Mr. Clark
eventually told Ms. Clark that he had touched H.C. inappropriately five to seven times and
K.C. two to four times. He also admitted that he had instructed the children to keep his
conduct a secret.

       Ms. Clark received one telephone call from the police during the conversation to tell
her that she should end the discussion because they had obtained sufficient evidence against
Mr. Clark. The police arrested Mr. Clark when he got out of his wife’s automobile. During
a subsequent two-hour interrogation, Mr. Clark retracted the incriminating statements he had
made to his wife and made no further incriminating statements. On August 7, 2007, a
Davidson County grand jury indicted Mr. Clark for twelve counts of rape of a child in
violation of Tenn. Code Ann. § 39-13-522(a) (Supp. 2007) and two counts of aggravated
sexual battery in violation of Tenn. Code Ann. § 39-13-504 (2006).

       On June 6, 2008, Mr. Clark moved to suppress the conversations with his wife that
had been recorded by Detective Zoccola and his team. He argued that his wife was acting
as an agent of the police when he confessed and that she had coerced him into making
involuntary confessions that were false. The trial court conducted a suppression hearing on
July 17, 2008, at which Detective Zoccola testified.

       The trial court denied Mr. Clark’s motion to suppress on October 1, 2008. After
noting the State’s argument that Ms. Clark had been motivated to cooperate with the
authorities “solely by her concern for the health, safety, and welfare of her daughters,” the
court found that Ms. Clark “was equally, if not primarily, motivated by her desire to gather
evidence for criminal prosecution.” Because the authorities had instigated and guided the
recorded conversations, the court decided that Ms. Clark had been “an instrument of the

                                             -4-
State.” However, the trial court decided that Mr. Clark’s recorded statements to his wife
were admissible because they had not been coerced. The trial court also granted Mr. Clark
permission to seek an interlocutory appeal of its decision, but the appellate courts declined
to hear the appeal.

        On August 31, 2009, Mr. Clark filed a motion to exclude the evidence related to his
possession of adult pornography. The trial court granted the motion and ordered that the
recordings of Mr. Clark’s conversations with his wife be redacted to eliminate the references
to his possession and enjoyment of pornography. The case proceeded to trial in September
2009, but the jury was unable to agree upon a verdict.

        Prior to his second trial, Mr. Clark sought permission to call Dr. James Walker, a
forensic neuropsychologist at Vanderbilt University. Dr. Walker planned to testify that Mr.
Clark had an unusually high degree of “interrogative suggestibility” which made him
predisposed to making false confessions when under pressure. During a hearing on
November 12, 2009, Dr. Walker told the court that he had concluded that Ms. Clark
dominated the marital relationship and that Mr. Clark was atypically weak-willed and
compliant, especially toward Ms. Clark. Following the hearing, the trial court decided that
Dr. Walker could testify. However, the court also decided that the State would be permitted
to introduce evidence that Mr. Clark used pornography (knowing that his wife disapproved)
in order to demonstrate that Mr. Clark did not always yield to his wife’s wishes.

        Mr. Clark’s second trial commenced on November 16, 2009. At the outset, Mr.
Clark’s two daughters testified that their “dad” had touched their “private parts” but that they
did not remember much about these incidents any more. In addition to the children, the State
called Ms. Clark, the school guidance counselor who had first talked with the children, the
teacher of the children’s Bible class, the nurse practitioner who interviewed and examined
the children at the Our Kids Center, Detective Chad Gish who installed the recording device
in Ms. Clark’s automobile and who analyzed the contents of Mr. Clark’s computer, and
Detective Zoccola. During Detective Zoccola’s testimony, the jury heard the recordings of
the three conversations between Mr. Clark and his wife – the original controlled call, the one-
sided telephone call, and the conversation in Ms. Clark’s automobile.

      Mr. Clark testified on his own behalf and insisted that he had falsely confessed to
crimes that he had not committed. He also presented the testimony of his mother, a co-
worker and neighbor, and Dr. Walker. Dr. Walker described Mr. Clark as an unassertive and
weak-willed man who was henpecked by his wife. He also testified that Mr. Clark’s score




                                              -5-
on the Gudjonsson Suggestibility Scale3 was unusually high, which indicated that Mr. Clark
was highly susceptible to being coerced into falsely confessing.

       On November 19, 2009, the jury found Mr. Clark guilty of two counts of aggravated
sexual battery and seven counts of rape of a child. On January 7, 2010, the trial court
sentenced Mr. Clark to an effective sentence of thirty-four years. Mr. Clark appealed, and
the Court of Criminal Appeals affirmed three of his rape convictions and his two convictions
for aggravated sexual battery but reversed four of Mr. Clark’s rape convictions because of
problems in the State’s election of offenses. The intermediate appellate court also affirmed
Mr. Clark’s thirty-four-year sentence. See State v. Clark, No. M2010-00570-CCA-R3-CD,
2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012).

       We granted Mr. Clark’s Tenn. R. App. P. 11 application for permission to appeal.4
Later, we docketed this case with State v. Sanders, No. M2011-00962-CCA-R3-CD, 2012
WL 4841545 (Tenn. Crim. App. Oct. 9, 2012), perm. app. granted (Tenn. Feb. 15, 2013),
another case that involved the police surreptitiously recording the defendant’s incriminating
statements to the victim’s mother.

       Mr. Clark raises four errors in this appeal. First, he asserts that the evidence is
insufficient to support any of his convictions because the State failed to present independent
evidence corroborating his confession. Second, he argues that the trial court erred by failing
to suppress the recordings of his conversations with his wife. Third, he insists that the trial
court erred by permitting the State to present evidence relating to his possession and
enjoyment of pornography. Finally, Mr. Clark asserts that the trial court erred by instructing
the jury that the mental state of “recklessness” could support convictions for rape of a child
and aggravated sexual battery.

                                                  II.

        Mr. Clark’s first challenge is to the sufficiency of the evidence. Our role with regard
to this issue in a criminal case is to “determine whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” State v. Hawkins,
406 S.W.3d 121, 130 (Tenn. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979));


       3
         See Gisli H. Gudjonsson, Suggestibility and Compliance Among Alleged False Confessors and
Resisters in Criminal Trial, 31 Med. Sci. & L. 147 (1991); Gisli H. Gudjonsson, A New Scale of
Interrogative Suggestibility, 5 Personality & Individual Differences 303 (1984).
       4
         The State has not taken issue with the reversal by the Court of Criminal Appeals of four of Mr.
Clark’s seven rape convictions.

                                                  -6-
see also Tenn. R. App. P. 13(e). In conducting this analysis, “we must afford the State the
strongest legitimate view of the evidence and any reasonable inferences that may be drawn
from it.” State v. James, 315 S.W.3d 440, 455 (Tenn. 2010). A verdict of guilty replaces the
defendant’s presumption of innocence with a presumption of guilt. The defendant thus bears
the burden of demonstrating insufficiency of the evidence. State v. Sisk, 343 S.W.3d 60, 65
(Tenn. 2011).

      We apply the same standard of review to both circumstantial and direct evidence.
Circumstantial evidence alone is sufficient to support a conviction, and the circumstantial
evidence need not exclude every reasonable hypothesis except that of guilt. State v.
Hawkins, 406 S.W.3d at 131; State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011).

      Specifically, Mr. Clark relies on the long-established common-law rule that a
conviction cannot be founded solely on a defendant’s confession. A conviction based on a
confession cannot stand unless the jury was presented with independent corroborating
evidence. See State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000).

       In State v. Bishop, 431 S.W.3d 22 (Tenn. 2014), we recently clarified the
corroboration rule in Tennessee. Tennessee follows the “modified trustworthiness standard”
rather than the traditional corpus delicti rule. State v. Bishop, 431 S.W.3d at 59-60. We
explained that under this standard:

              When a defendant challenges the admission of his extrajudicial
              confession on lack-of-corroboration grounds, the trial court
              should begin by asking whether the charged offense is one that
              involves a tangible injury. If the answer is yes, then the State
              must provide substantial independent evidence tending to show
              that the defendant’s statement is trustworthy, plus independent
              prima facie evidence that the injury actually occurred. If the
              answer is no, then the State must provide substantial
              independent evidence tending to show that the defendant’s
              statement is trustworthy, and the evidence must link the
              defendant to the crime.




                                            -7-
State v. Bishop, 431 S.W.3d at 60.5 “Prima facie” evidence is “[e]vidence that will establish
a fact or sustain a judgment unless contradictory evidence is produced.” Black’s Law
Dictionary 638-39 (9th ed. 2009). “Substantial evidence” is “[e]vidence that a reasonable
mind could accept as adequate to support a conclusion; evidence beyond a scintilla.” Black’s
Law Dictionary 640 (9th ed. 2009).

        The corroboration requirement is a low threshold. Its purpose is twofold: to weed out
false confessions to nonexistent crimes (by requiring some independent evidence that the
injury occurred) and to weed out false confessions to actual crimes (by requiring some
independent evidence that implicates the accused). State v. Bishop, 431 S.W.3d at 59-60.
The standard of proof required to clear this hurdle is even lower than the “preponderance of
the evidence” standard. State v. Bishop, 431 S.W.3d at 60 n.33 (quoting Smith v. United
States, 348 U.S. at 156).

       Examples of crimes that result in no tangible injury to an identifiable victim include
inchoate crimes, certain financial crimes, status crimes, and child molestations that involve
no physical evidence and about which the victim is too young to testify or is unable to
remember the crime. State v. Bishop, 431 S.W.3d at 59 n.27. In this case, Mr. Clark was
accused of committing physical acts against identifiable victims. While the victims were
young and their memories of the events were minimal, the victims were capable of testifying.
Thus, this is a “tangible injury” case. To meet the corroboration requirement, the State was
required to present the jury with substantial independent evidence tending to show that the
defendant’s statement is trustworthy, plus independent prima facie evidence that the injury
actually occurred.

       Aside from Mr. Clark’s recorded admissions, the only substantive evidence the State
offered at trial was the testimony of his two young daughters. Other witnesses, including Ms.
Clark and the guidance counselor, recounted the girls’ earlier statements to them that
contained details of the crimes. But these prior out-of-court statements were offered as
“prior consistent statements” in response to Mr. Clark’s attempts to impeach the girls’
credibility. The trial court instructed the jury that these statements were not offered for the
proof of their content. See Tenn. R. Evid. 801.




        5
         See also Smith v. United States, 348 U.S. 147, 152-59 (1954); Opper v. United States, 348 U.S. 84,
90-94 (1954); State v. Reddish, 859 A.2d 1173, 1211-13 (N.J. 2004); State v. Hardy, 2012-NMCA-005, ¶ 10,
268 P.3d 1278, 1282 (N.M. Ct. App. 2011), cert. granted, 291 P.3d 599 (N.M. 2012), and cert. quashed, 299
P.3d 423 (N.M. 2012); State v. Weisser, 2007-NMCA-015, ¶¶ 17-25, 150 P.3d 1043, 1048-50 (N.M. Ct. App
2006).

                                                   -8-
       The girls’ trial testimony was brief and conveyed few details. When asked, “Why are
you here today?,” K.C. replied, “Because my dad did something bad.” K.C. said her dad
“touched a private part,” and did it on “the skin” rather than over her clothes. She
acknowledged the events were hard to remember because they happened so long ago. In
response to the prosecutor’s question, she said she had told the truth when she told her
mother what happened. K.C. said she remembered her dad touching her in the bathroom at
her house while H.C. was present, but otherwise she “sort of forgot a bunch of it.”

      H.C. also testified. When the prosecutor asked her, “what happened,” H.C.
responded, “we had a problem and my dad touched me in my private area.” The prosecutor
asked whether it happened at her house. H.C. responded, “That I do not know.” Like K.C.,
H.C. acknowledged that she had told the truth when she told her mom about the touching.
Both children identified the “private” area using a drawing of a naked girl.

        The children’s testimony alone provided adequate corroborating evidence to clear the
low threshold of the modified trustworthiness standard. First, their testimony provided prima
facie evidence that a sex crime had occurred. Second, their testimony provided substantial
independent evidence that Mr. Clark’s confession was trustworthy. In State v. Bishop, we
explained that “[t]o establish trustworthiness, the State’s independent evidence must
corroborate essential facts contained in the defendant’s statement. For example, independent
corroboration of one key part of an extrajudicial confession or admission may corroborate
the entire statement.” State v. Bishop, 431 S.W.3d at 59 (emphasis added). There is no need
to corroborate every element of the crime or every crime contained in the confession. State
v. Bishop, 431 S.W.3d at 60 n.33.

       During his conversations with his wife, Mr. Clark confessed to as many as eleven acts
of sexual molestation against his daughters. The children’s sworn testimony – that their
“dad” did something “bad” by touching their “private” parts – corroborated the key aspect
of Mr. Clark’s confession, namely that he put his finger on and inside the girls’ vaginas and
anuses. In addition to corroborating these “essential facts,” the children were also able to
identify their father as the person who touched them, and K.C. recalled an inappropriate
touching that occurred in the family’s bathroom.

        These details agree with Mr. Clark’s admission that he was the perpetrator and his
identification of the bathroom as the location of some of the sexual activity. In other words,
the girls’ testimony included “facts that establish the crime which corroborate facts contained
in the confession.” This is one type of evidence that satisfies the modified trustworthiness
standard. State v. Bishop, 431 S.W.3d at 60 n.32 (quoting People v. LaRosa, 2013 CO 2, ¶
41, 293 P.3d 567, 578 (Colo. 2013), reh’g denied (Feb. 11, 2013)). Once the State presented
evidence indicating that a key aspect of Mr. Clark’s confession was trustworthy, the jury was

                                              -9-
free to convict him of any criminal act contained in his confession. See United States v.
Brown, 617 F.3d 857, 863 (6th Cir. 2010) (explaining that independent corroboration of one
part of a defendant’s incriminating statement may corroborate the statement as a whole);
State v. Bishop, 431 S.W.3d at 59 (explaining that “independent corroboration of one key
part of an extrajudicial confession or admission may corroborate the entire statement”).

       We hold that his daughters’ testimony adequately corroborated Mr. Clark’s
incriminating statements to his wife. Based on his admissions, a rational trier of fact could
have found Mr. Clark guilty beyond a reasonable doubt of the five convictions that were
upheld by the Court of Criminal Appeals. Mr. Clark has not met his burden of establishing
the insufficiency of the evidence. We therefore will not reverse these five convictions for
lack of corroboration or insufficient evidence.

                                                     III.

       Mr. Clark also asserts that the trial court erred by failing to suppress the recordings
of his conversations with his wife. He claims that admitting the surreptitiously-recorded
conversations into evidence violated his right against compulsory self-incrimination 6 and his
right to due process of law7 because Ms. Clark was acting as a state agent when she
confronted him and because Ms. Clark dragooned him into confessing against his will by
using threats, promises, and emotional appeals.

        In Tennessee, the voluntariness of a confession is a question of fact, and the State has
the burden of proving the voluntariness of a confession by the preponderance of the
evidence. State v. Sanders, ___ S.W.3d ___, ___, 2014 WL ___, at ___ (Tenn. 2014). When
the trial court makes findings of fact at the conclusion of a suppression hearing, those
findings are generally binding upon this Court unless the evidence in the record
preponderates against them. The trial court is entrusted with determining the credibility of
the witnesses, weighing the evidence, and resolving conflicts in the evidence, and it is not
this Court’s job to second-guess these determinations. State v. Echols, 382 S.W.3d 266, 277
(Tenn. 2012). If, on the other hand, the trial court bases its findings solely on evidence for
which witness credibility is not an issue, appellate courts may review that evidence de novo
without a presumption of correctness. State v. Northern, 262 S.W.3d 741, 748 n.3 (Tenn.
2008); State v. Payne, 149 S.W.3d 20, 25 (Tenn. 2004). In this case, the suppression hearing
included testimony from Detective Zoccola regarding the circumstances surrounding the
recorded conversations. Therefore, de novo review of the facts is not appropriate.


       6
           See U.S. Const. amend. V; Tenn. Const. art. I, § 9.
       7
           See U.S. Const. amend. XIV; Tenn. Const. art. I, § 8.

                                                     -10-
        When reviewing a suppression motion, appellate courts should consider the entire
record, including the evidence adduced at trial. We have also long held that the party who
prevails at the suppression hearing is entitled to the strongest legitimate view of the evidence
as well as all reasonable and legitimate inferences that may be drawn from that evidence.
State v. Bishop, 431 S.W.3d at 35 (quoting State v. Echols, 382 S.W.3d at 277). Finally, even
if a trial court commits non-structural constitutional error by failing to suppress an
involuntary statement, we may affirm the conviction if the State proves beyond a reasonable
doubt that the error did not affect the verdict. State v. Rodriguez, 254 S.W.3d 361, 371
(Tenn. 2008).

                                              A.

        We considered Mr. Clark’s case along with that of Henry Floyd Sanders. In State v.
Sanders, we held that the self-incrimination protections of the Fifth Amendment and Tenn.
Const. art. I, § 9 are not triggered when a private citizen who is cooperating with the police
elicits a confession from a suspect during the early stages of a criminal investigation. State
v. Sanders, ___ S.W.3d at ___. The exclusionary rule is a prophylactic measure designed to
deter future police misconduct. When a private citizen obtains admissions from a suspect
while cooperating with the police, there is no police misconduct to be deterred. State v.
Sanders, ___ S.W.3d at ___ (citing Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971)).
While noting that we had previously adopted a two-factor test for determining when a private
person qualifies as a state agent for purposes of the constitutional right against unreasonable
searches and seizures in State v. Burroughs, 926 S.W.2d 243, 245-46 (Tenn. 1996), we held
that this “legitimate independent motivation test” is not appropriate in the Fifth Amendment
context. State v. Sanders, ___ S.W.3d at ___.

        Instead, we determined that when a victim (or victim’s relative or friend) goes to the
police and then, with police assistance, elicits a confession from a suspect, the suspect has
simply misplaced his trust in a confidant. See United States v. White, 401 U.S. 745, 749
(1971); Hoffa v. United States, 385 U.S. 293, 413 (1966); Lopez v. United States, 373 U.S.
427, 443-45 (1963); State v. Branam, 855 S.W.2d 563, 568 (Tenn. 1993); State v. Pate, No.
M2009-02321-CCA-R3-CD, 2011 WL 6935329, at *10 (Tenn. Crim. App. Nov. 22, 2011),
perm. app. denied (Tenn. Apr. 11, 2012); Clariday v. State, 552 S.W.2d 759, 769 (Tenn.
Crim. App. 1976). “The United States Constitution provides no protection for those who
voluntarily offer information to a confidant.” State v. Sanders, __ S.W.3d __, __, 2014 WL
__, at *__ (quoting State v. Bacon, No. 03C01-9608-CR-00308, 1998 WL 6925, at *12
(Tenn. Crim. App. Jan. 8, 1998) (No Tenn. R. App. P. 11 application filed)) In “misplaced
trust” cases, courts generally assume the informant is a state agent, and find that voluntary
statements made to an informant do not warrant constitutional protection. State v. Sanders,
___ S.W.3d at ___. However, we also noted that even in “misplaced trust” cases, an

                                              -11-
involuntary confession is inadmissible. To determine whether a confession was given
voluntarily, a court must decide whether it was “the product of a rational intellect and a free
will.” The pivotal question of the voluntariness test is “whether a suspect’s will was
overborne so as to render the confession a product of coercion.” The test examines the
totality of the circumstances surrounding the confession, including “the characteristics of the
accused and the details of the interrogation.” An error in admitting an involuntary confession
is nevertheless subject to a harmless error analysis. State v. Sanders, __ S.W.3d at __, 2014
WL __, at *__.

                                               B.

        Here, although the trial court considered Ms. Clark to be a state agent, it held that she
did not overbear Mr. Clark’s will. In its order denying Mr. Clark’s motion to suppress, the
trial court distinguished Mr. Clark’s case from two others in which the Court of Criminal
Appeals found that state agents had induced an involuntary confession, State v. Womack, No.
E2003-02332-CCA-R3-CD, 2005 WL 17428 (Tenn. Crim. App. Jan. 4, 2005) (No Tenn. R.
App. P. 11 application filed), and State v. Phillips, 30 S.W.3d 372 (Tenn. Crim. App. 2000)
(No Tenn. R. App. P. 11 application filed).

        The trial court found that Ms. Clark’s “false promises” to keep Mr. Clark’s admissions
secret were distinguishable from similar promises made by authority figures who could
realistically promise him leniency in prosecution. The court found that if Mr. Clark believed
he could avoid prosecution by confessing, this could be “chalked up more to misplaced trust
in his wife than to the realities of the situation.” The court noted that even though Ms. Clark
misrepresented to her husband that no one was listening, Ms. Clark made no
misrepresentations about the evidence.

        The court found that Ms. Clark generally made truthful statements about Mr. Clark’s
predicament and that such statements do not qualify as unduly coercive. The court concluded
that “the confession by Mr. Clark was not the result of his will being overborn[e].” The court
found it particularly significant that

              Mr. Clark’s first affirmative, unqualified admission was given
              in the [Opry Mills] conversation without any prodding by Mrs.
              Clark. More importantly, this admission that he had touched
              both girls occurred after he had time away from Mrs. Clark
              between the two conversations to pause and reflect on his
              situation and decide for himself what he was going to do.




                                              -12-
The Court of Criminal Appeals upheld the denial of Mr. Clark’s suppression motion on
essentially the same grounds. State v. Clark, 2012 WL 3861242, at *28-29.

       Affording the State the strongest legitimate view of the evidence, we hold that the
evidence does not preponderate against the trial court’s finding that Mr. Clark’s confession
was voluntary. Although he initially denied the allegations during the first phone call, forty-
five minutes into the conversation Mr. Clark acknowledged that he had “touched” the girls.
As the lower courts noted, Mr. Clark was with his mother for several hours between the
phone calls and the conversation at Opry Mills. He had time to think and consider what he
should do and say when he met his wife. When the two met, Mr. Clark almost immediately
began revealing details of the molestations, stating that he had touched the girls
inappropriately as many as eleven times over a period of several months. It was Mr. Clark
who arranged the meeting. Ms. Clark did not confine him, yell at him, or threaten him with
anything other than the normal consequences one might face after sexually assaulting his
own children.

       Although Dr. Walker opined that Mr. Clark was abnormally susceptible to
manipulation, the record reflects that Mr. Clark was a manager at a security alarm company,
a homeowner, and an adult with a stable family and an active social life. When two seasoned
police officers interrogated him for over two hours, he confessed to nothing. Having
examined the totality of the circumstances, particularly the characteristics of the defendant
and the circumstances of the interrogation, we decline to find that Mr. Clark’s confession was
not the product of a rational intellect and a free will.

       Consistent with our holding in State v. Sanders, we find that Ms. Clark’s interrogation
of Mr. Clark did not implicate Mr. Clark’s right against compulsory self-incrimination. The
constitutional right against compulsory self-incrimination “affords no protection to ‘a
wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing
will not reveal it.’” United States v. White, 401 U.S. at 749 (quoting Hoffa v. United States,
385 U.S. at 302). We also conclude that the evidence does not preponderate against the trial
court’s determination that Mr. Clark’s confession was voluntary.

                                             IV.

         In addition, Mr. Clark challenges the trial court’s decision to admit evidence that he
possessed and viewed adult pornography. This evidence had been excluded from Mr. Clark’s
first trial. However, after Mr. Clark obtained permission to present expert testimony during
his second trial that he was predisposed to make a false confession to his domineering wife,
the trial court granted the State’s request to introduce evidence that Mr. Clark viewed
pornography despite his wife’s vehement moral objections. The State purportedly offered

                                             -13-
this evidence solely to prove that Mr. Clark was not as submissive to his wife as Dr. Walker’s
proposed testimony suggested.

       Even though the trial court believed that the evidence of Mr. Clark’s predilection for
pornography was “not technically [Tenn. R. Evid.] 404(b) . . . prior bad acts” evidence, it
decided that giving a limiting instruction regarding this evidence would be appropriate.
Accordingly, the trial court instructed the jury that the evidence could not be used as
“propensity” or “predisposition” evidence and that its use was limited to providing “a more
complete picture of the parties’ relationship” and for “evaluating their credibility.” At trial,
the jury was never shown any pornographic images. They only heard about Mr. Clark’s
pornography use through the audio recordings and the testimony of Ms. Clark, Detective
Gish, and Mr. Clark.

        The Court of Criminal Appeals held that the trial court erred by allowing the State to
present the pornography evidence during its case-in-chief. The court determined that the
pornography evidence qualified as “‘other acts’ evidence under [Tenn. R. Evid.] 404(b)”
which “had the potential for misuse by the jury as propensity evidence.” The court also
concluded that when the evidence was offered during the State’s case-in-chief, it was “not
material, and its probative value was outweighed by the danger of unfair prejudice.”
However, the appellate court determined that the evidence “became relevant and material”
after Dr. Walker testified and that “at that point, the danger of unfair prejudice did not
outweigh its probative value.” Accordingly, the court decided that the evidentiary error was
harmless. State v. Clark, 2012 WL 3861242, at *31-33.
        We must now determine whether admitting the evidence relating to Mr. Clark’s
predilection for pornography was error and if so, whether that error was harmless. To assess
this issue, we must review how this evidence was used at trial.

                                              A.

          Ms. Clark discussed her husband’s pornography use when she testified during the
State’s case-in-chief. She testified that she had trouble believing Mr. Clark when he initially
denied touching their daughters because he had been deceptive in the past. She stated that
“[w]e had had, for many years, a problem with his use of pornography” and that “I told him
it offended me, that I wished that he would not use pornography on the computer, I felt like
it . . . could possibly open the door to other things.”

       According to Ms. Clark, Mr. Clark would “lie to [her] face” and say he had stopped,
but then she would later find pornographic material on his computer. Ms. Clark also told the
jury that when she returned home after Mr. Clark’s arrest, she checked the computer and



                                              -14-
found pornographic websites in the recent internet history. In addition, Ms. Clark made a
subsequent reference to “the distrust with the pornography issue.”

        Detective Gish testified regarding the results of his forensic examination of Mr.
Clark’s computers. He told the jury that although Mr. Clark’s home computer contained no
child pornography, he found “thousands of images” of adult pornography and “thousands”
of visits to pornographic websites. He explained that Mr. Clark had not downloaded any
pornographic images; the images had been automatically preserved in his computer’s internet
history cache. Detective Gish testified that the most recent visits to pornographic websites
found on Mr. Clark’s computer occurred on January 15, 2007 – the day after his wife and
children left. Detective Gish also testified that there were “so many images” and websites,
he only collected a “representative sample” to attach to his report to Detective Zoccola and
the District Attorney General’s office.

       During his testimony, Detective Zoccola introduced the recordings of the controlled
telephone call and the conversation in Ms. Clark’s automobile, both of which contained
references to Mr. Clark’s predilection for pornography. Early in the telephone call, Mr. Clark
himself told Ms. Clark that the only “problem” in their marriage had been his habit of
looking at free pornography - “just men and women on the internet.” He recounted how Ms.
Clark had caught him and scolded him. He also told her that he “took a long time off from
[pornography],” but then their “sex life got boring,” and he started using it again and got
caught again.

       During the conversation, Ms. Clark revealed that she had checked the computer again
within the past week and found that Mr. Clark had been using pornography. Mr. Clark
acknowledged that he had but denied he had viewed child pornography. He added that his
mother also knew about his pornography problem. He said, “[t]he only thing I have done,
I have jacked off to pornography – adult pornography – on our computer.” He also insisted
that he had never rented or owned any pornographic videos.

       Mr. Clark’s pornography use was discussed even more extensively during the
recorded conversation in Ms. Clark’s car at Opry Mills. The jury heard Mr. Clark explain
how his pornography use related to the molestation of his daughters:

              Mr. Clark:    Just let me talk. You just listen.
              Mrs. Clark:   Okay.
              Mr. Clark:    You know that, um, over the last couple of years
                            you’ve seen on the computer that I’ve looked at
                            porn at night.
              Mrs. Clark:   Um-hum. (Affirmative).

                                             -15-
              Mr. Clark:    And sometimes I get these thoughts . . . not dark
                            or troubled thoughts, just, you know, thinking
                            about sex, you know?
              Mrs. Clark:   Um-hum.
              Mr. Clark:    And I, uh, never had any kind of impulse or
                            inclination to do anything to the kids until about
                            one night last week, whenever it was, when they
                            were up there taking a bath in their bathtub. I
                            was, I was up there. They were both in the
                            bathtub. I remember this. I looked at [H.C.]. You
                            know how she’ll spread her legs?
              Mrs. Clark:   Um-hum.
              Mr. Clark:    She did that and I looked at her vagina, and . . . I
                            was thinking to myself, you know, what are you
                            doing?

        Mr. Clark went on to explain that “what brought it on” was how he would stay
downstairs late at night while Ms. Clark was asleep. He said, “I’m looking on the computer
at topless women, at, you know, pornography, and it just kind of . . . comes out. I don’t know
why. I can’t explain it.” Mr. Clark told Ms. Clark that molesting his daughters was “an
impulse thing.” He told her that if she checked she would indeed find pornography on the
computer. Although he was not usually sexually interested in children, Mr. Clark explained,
“I just had an impulse where it was an opportunity for me to do that and I did it and I’m
sickened by it and one hundred percent ashamed.”

        Mr. Clark himself also discussed his use of pornography during his testimony. He told
the jury that despite the State’s evidence, pornography was actually a “very minimal” part
of his life. He said the reason his computers contained so many images and web page visits
was because the computers were several years old, and he did not know how to delete that
material from his computer’s memory.

       On cross-examination, the prosecutor suggested that, although Mr. Clark testified he
was upset that his children had vanished, he was not “too upset . . . to get online and start
looking at porn” on Monday, the first day they were gone. The prosecutor also asked Mr.
Clark to acknowledge that he had been “exceedingly deceitful” with his wife “on this issue
of pornography.” The prosecutor said, “despite the fact that she had a zero tolerance of it,
and you knew it hurt her, you continued to do it. . . . And you lied about it. . . . And she
stayed with you and the issue came up again, again, and again. And you lied again, again,
and again, right?” Mr. Clark answered, “Yes, I didn’t think that would end our marriage,
something like that.”

                                             -16-
        Both the prosecution and the defense referred to the evidence of Mr. Clark’s
predilection for pornography during their closing arguments. The State suggested that Ms.
Clark’s mistrust of her husband was reasonable because “he had lied to her about . . . using
the porn over and over and over again.” The State also noted that although Mr. Clark
testified that the sudden disappearance of his wife and children made him very upset, he
actually continued to “keep up with his interests” while they were gone and that “looking at
porn” was one of these interests.

       For his part, Mr. Clark’s attorney argued to the jury that the State was committing
“character assassination” against Mr. Clark by branding him with “the scarlet letter” or “leper
bell” of adult pornography and that the State was suggesting that Mr. Clark’s pornography
use put him on the “slippery slope of child molestation.” In its rebuttal, the State responded:

              [Mr. Clark’s counsel alleged] there was an issue of character
              assassination with the pornography that was involved in this
              case. I submit to you that pornography is not important in and
              of itself. Don’t convict Chad Clark because he looked at
              pornography. The issue of pornography came into play because
              it was about deception. If Mr. Clark had been hiding a gambling
              problem or hiding a drinking problem or a drug problem from
              Mrs. Clark, that’s what you would have heard about because that
              deception was important to Mrs. Clark in insisting on the truth.
              So, I don’t care if he looked at pornography and neither should
              you because it doesn’t matter in and of itself, it matters in the
              context of he lied to her about it and she knew it.

                                              B.

       Against this factual backdrop, we now turn to the law governing the admissibility of
evidence of a criminal defendant’s use of pornography that is not directly related to the
charges against him. We generally review evidentiary rulings under an “abuse of discretion”
standard. However, when we consider evidence that implicates Tenn. R. Evid. 404(b), we
review the trial court’s admissibility ruling de novo unless the trial court substantially
complied with the procedures outlined in Rule 404(b). If the trial court substantially
complied with Tenn. R. Evid. 404(b), we will overturn the ruling only if the trial court
abused its discretion. State v. Kiser, 284 S.W.3d 227, 288-89 (Tenn. 2009); State v. DuBose,
953 S.W.2d 649, 652 (Tenn. 1997). 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. Banks, 271 S.W.3d 90, 116 (Tenn. 2008).

                                             -17-
       When a trial court errs by admitting evidence that is forbidden under the Tennessee
Rules of Evidence, we address this non-constitutional error using the harmless error analysis
of Tenn. R. App. P. 36(b). Under Tenn. R. App. P. 36(b), the defendant bears the burden of
showing that the erroneous evidence “more probably than not” affected the verdict. To
conduct a review under Tenn. R. App. P. 36(b), we review the entire record in order to
ascertain the actual evidentiary basis for the jury’s verdict. The crucial consideration is what
impact the error may reasonably have had on the jury’s decision-making process. When the
error more probably than not had a substantial and injurious impact on the jury’s decision-
making process, it is not harmless. In general, the more evidence there is to support the
defendant’s guilt, the more likely it will be that the error was harmless. State v. Rodriguez,
254 S.W.3d at 371-72.

       The admissibility of any piece of evidence depends on its relevance. Tenn. R. Evid.
402 provides that “[a]ll relevant evidence is admissible except as provided by the
Constitution of the United States, the Constitution of Tennessee, these rules, or other rules
or laws of general application in the courts of Tennessee. Evidence which is not relevant is
not admissible.” Tenn. R. Evid. 401 defines “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”

       However, even relevant evidence may be inadmissible “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. 403. Tenn. R. Evid. 404 balances the
admissibility of relevant evidence with the concerns that “a person’s character or trait of
character”8 or “[o]ther crimes, wrongs, or acts”9 may have the potential to influence the jury’s
assessment of the person’s character. Tenn. R. Evid. 404(b) states:

                  Evidence of other crimes, wrongs, or acts is not admissible to
                  prove the character of a person in order to show action in
                  conformity with the character trait. It may, however, be
                  admissible for other purposes. The conditions which must be
                  satisfied before allowing such evidence are:

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


       8
           See Tenn. R. Evid. 404(a).
       9
           See Tenn. R. Evid. 404(b).

                                               -18-
                (2)    The court must determine that a material issue exists
                other than conduct conforming with a character trait and must
                upon request state on the record the material issue, the ruling,
                and the reasons for admitting the evidence;

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

                (4)    The court must exclude the evidence if its probative value
                is outweighed by the danger of unfair prejudice.

       According to the Advisory Commission Comment, “evidence of other crimes should
usually be excluded.” However, in “the exceptional case,” another crime, wrong or act could
be “arguably relevant to an issue other than the accused’s character.” Such relevant issues
include “identity (including motive and common scheme or plan), intent, or rebuttal of
accident or mistake.” Tenn. R. Evid. 404 advisory comm’n cmt. We have also held that
evidence of other acts may be admissible to provide the jury with the necessary contextual
background or res gestae to understand the nature of the crime. State v. Gilliland, 22 S.W.3d
266, 272 (Tenn. 2000) (providing guidelines for admitting res gestae evidence).

         Evidence offered for the purpose of showing “conformity with [a particular] character
trait” is often called propensity evidence. Courts must closely scrutinize propensity evidence
not because such evidence is irrelevant, but because juries tend to ascribe it undue relevance.
Propensity evidence may lead a jury to convict, not because they are certain the defendant
is guilty of the charged crime, but because they have determined the defendant is “a bad
person who deserves punishment” whether or not the crime was proven beyond a reasonable
doubt. State v. Rodriguez, 254 S.W.3d at 375; Old Chief v. United States, 519 U.S. 172, 181
(1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)); see also United
States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007) (en banc). The danger of a jury misusing
propensity evidence is particularly strong when “the conduct or acts are similar to the crimes
on trial.” State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994).

      Although the pornography Mr. Clark used was legal,10 the admissibility of evidence
concerning a defendant’s pornography use is governed by Tenn. R. Evid. 404(b). See State


        10
           Adults have a First Amendment right to view and possess pornography (defined as writings,
pictures, and other media that are intended primarily to arouse sexual desire) unless the pornography falls
into one of two categories of unprotected speech: obscenity or child pornography. See David L. Hudson, Jr.,
The First Amendment: Freedom of Speech § 4:1, at 87 (2012). The parties agree that neither category is
implicated in this case.

                                                   -19-
v. Rodriguez, 254 S.W.3d at 374; State v. McCary, 119 S.W.3d 226, 246 (Tenn. Crim. App.
2003), perm. app. denied (Tenn. July 7, 2003). While using adult pornography is not a
“crime,” many people consider it a moral “wrong.” Although we have previously explained
that only prior “bad acts” implicate Tennessee’s Rule 404(b), see State v. Reid, 213 S.W.3d
792, 813-14 (Tenn. 2006) (finding that handgun possession is not a bad act that warrants
Rule 404(b) analysis), pornography use has such prejudicial potential that it should be
addressed through Rule 404(b).

        Caution is especially warranted in trials for sex crimes because a jury may infer from
a defendant’s use of pornography that the defendant had the propensity to engage in other
morally questionable sexual behaviors. See, e.g., State v. Montgomery, 350 S.W.3d 573,
582-85 & n.3 (Tenn. Crim. App. 2011) (opining that had the victim testified that the
defendant showed her pornography, this testimony would have been inadmissible for the
same reason that evidence of uncharged sexual acts between the defendant and victim would
be inadmissible) (No Tenn. R. App. P. 11 application filed); State v. McCary, 119 S.W.3d
at 246 (finding that photocopied covers of the defendant’s pornographic magazines that were
not connected to the charged sex crimes should have been excluded because they held
“limited probative value” other than as propensity evidence and “would likely engender
substantial prejudice”), perm. app. denied (Tenn. July 7, 2003); State v. Woodcock, 922
S.W.2d 904, 911 (Tenn. Crim. App. 1995) (expressing “no doubt that evidence of a
defendant’s sexual misconduct not charged in the indictment and not connected to any of the
charges in the indictment is inadmissible during the State’s case-in-chief under Tennessee
Rule of Evidence 404(b)”).

        Four years ago, this Court warned against the acute danger of sexually-charged
propensity evidence in a prosecution for child sexual abuse. In State v. Rodriguez, we noted
that in addition to the dangers posed by propensity evidence in general, “[t]here is no subject
which elicits a more passionate response than the sexual exploitation of children. Society
abhors, and rightfully so, the victimization of the defenseless child.” State v. Rodriguez, 254
S.W.3d at 376 (quoting United States v. Villard, 700 F. Supp. 803, 809 (D.N.J. 1988)). Like
this case, State v. Rodriguez involved a prosecution for child rape and aggravated sexual
battery against two children. Although the State did not offer any pornographic images into
evidence, the court permitted oral testimony that Mr. Rodriguez viewed child pornography
on his computer. We held that admitting this testimony was harmful error that warranted a
new trial. State v. Rodriguez, 254 S.W.3d at 377-78.

       We also stressed that propensity evidence is especially harmful in close cases, such
as those that hinge on the credibility of the witnesses:




                                             -20-
              The harmful effects of propensity evidence that undermines a
              defendant’s credibility increase in close cases when the outcome
              depends on the jury’s assessment of the witnesses’ credibility.
              Errors in admitting evidence are less likely to be harmless in
              close cases. Propensity evidence affects the jury’s assessment
              of whom to believe in a case that rises and falls upon
              assessments of credibility. This danger is particularly acute
              where the character or credibility defect is one that garners the
              understandable . . . revulsion that is directed by the public
              towards sexually exploitative acts towards children . . . .

State v. Rodriguez, 254 S.W.3d at 377 (citations omitted). The only substantive evidence at
trial that Mr. Rodriguez sexually abused the two children was the testimony of the children
themselves. Thus, we said, “the outcome of the prosecution hinged on the jury’s assessment
of the credibility of the two children and of [the defendant].” State v. Rodriguez, 254 S.W.3d
at 377. We determined that hearing about Mr. Rodriguez’s possession of child pornography
probably made it easier for the jury to disbelieve the defendant’s denials and “freed the jury
to conclude more comfortably” that he had abused his stepchildren. The error thus
undermined the fairness of the trial and “more probably than not” affected the jury’s
assessment of the credibility of the witnesses, which was the pivotal issue. State v.
Rodriguez, 254 S.W.3d at 377.

       In this case, Mr. Clark proposed to offer his own character evidence through Dr.
Walker, and the State petitioned to use the pornography evidence to “rebut” that evidence.
Tenn. R. Evid. 404(a)(1) permits a defendant to offer character evidence, but then authorizes
the prosecution to offer its own evidence of the defendant’s character “to rebut” the
defendant’s character evidence. We do not believe this Rule provides for preemptive
rebuttals. Here, the trial court allowed the State to introduce the pornography evidence
during its case-in-chief, in anticipation that Mr. Clark would raise the issue of his
submissiveness to his wife during the defense’s case-in-chief.

        There is danger in this approach. A defendant is not required to present any proof at
all. See Tenn. Code Ann. § 39-11-201(a)-(c) (2010) (codifying the constitutional rules that
a criminal defendant is presumed innocent and has no burden to prove innocence, thus the
State must prove each element of the crime beyond a reasonable doubt). Accordingly, a
defendant who gives notice of a potential expert or any other witness may, at the close of the
State’s case, change course and decide to refrain from presenting that evidence. It follows
that trial courts ought not permit the State to offer evidence during the State’s case-in-chief
when that evidence is only potentially admissible for the purpose of rebutting the defendant’s
anticipated evidence. With this problem in mind, we now turn our focus to Rule 404(b).

                                             -21-
                                                      C.

       Because evidence of use of pornography must pass muster under Tenn. R. Evid.
404(b), we address first whether the trial court substantially complied with the rule.
Although it is not clear from the record whether the trial court relied on Tenn. R. Evid.
404(b) in determining the admissibility of the pornography evidence, it appears that the court
substantially complied with Rule 404(b)’s procedural requirements. As required by Tenn.
R. Evid. 404(b)(1), the court considered the admissibility of the pornography evidence
outside the presence of the jury. Although the court did not expressly state that the evidence
of Mr. Clark’s pornography use was “clear and convincing,” as required by Tenn. R. Evid.
404(b)(3), this hurdle is easily cleared because Mr. Clark freely admitted using adult
pornography throughout the investigation and trial. The court also decided that “any
prejudicial effect [the evidence] may potentially have” was “outweighed by its probative
value.” See Tenn. R. Evid. 404(b)(4).

        The remaining requirement under Tenn. R. Evid. 404(b) is subsection (2)’s
requirement that the court identify a “material issue . . . other than conduct conforming to a
character trait.” The material issue the trial court identified in this case was the issue of Mr.
Clark’s submissiveness to his wife. The court found the evidence was relevant because “one
of the bases” for Dr. Walker’s conclusion that Mr. Clark was highly suggestible was Dr.
Walker’s opinion that Ms. Clark was “the dominant party” in the marriage. The court cited
Dr. Walker’s opinion that Mr. Clark “kind of gives in to whatever her opinions are on things
in order to avoid conflict,” and that “he basically succumbs to her desires [and] demands.”
In light of this defense theory, the court determined that Mr. Clark’s “subversive” continuing
use of pornography went to “the issue of whether or not he was the submissive partner.”
Thus, as required by Tenn. R. Evid. 404(b)(2), the trial court stated on the record this issue,
its ruling on the issue, and its reasons for admitting the evidence.

        We note first that this “material issue” is not one of the issues listed in the Advisory
Committee Comment to Tenn. R. Evid. 404 – identity, motive, common scheme or plan,
intent, or rebuttal of accident or mistake. Nor did the State offer the pornography evidence
as res gestae contextual background evidence.11 The State never argued that one of these
established non-character exceptions to Tenn. R. Evid. 404(b)’s exclusion rule applied in Mr.
Clark’s case.



        11
           One could argue that a portion of the court’s instruction – that the jury could consider the evidence
“for the limited purpose of providing a more complete picture of the parties’ relationship” – painted the
pornography evidence as res gestae evidence, but the State did not rely on this theory before trial, and the
court did not conduct the res gestae analysis required by State v. Gilliland, 22 S.W.3d at 272.

                                                     -22-
       We are not suggesting that Tenn. R. Evid. 404(b) evidence must fit within one of the
enumerated categories in the Advisory Committee Comments (i.e., identity, motive, common
scheme or plan, intent, or rebuttal of accident or mistake) or be fairly characterized as res
gestae evidence. There very well may be other types of “other acts” that meet Tenn. R. Evid.
404’s criteria. Nevertheless, whenever a party offers Tenn. R. Evid. 404(b) evidence without
connecting the evidence with one of the recognized exceptions, courts should be highly
skeptical.

        Regardless of whether the trial court identified a legitimate “material issue” under
Tenn. R. Evid. 404(b)(2) and therefore substantially complied with the Rule, we find that the
trial court abused its discretion in two ways. First, the court based its decision on an
erroneous assessment of the evidence when it decided that the probative value of the
evidence was not “outweighed by the danger of unfair prejudice.” Second, the court created
an injustice to the complaining party when it allowed the evidence to be used primarily to
attack Mr. Clark’s credibility. See State v. Banks, 271 S.W.3d at 116 (“Reviewing courts will
find an abuse of discretion only when the trial court applied incorrect legal standards, reached
an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence,
or employed reasoning that causes an injustice to the complaining party.”).

       First, the trial court made an erroneous assessment of the effect of the evidence when
it found that the probative value of the pornography evidence was not outweighed by the
danger of unfair prejudice. As we have previously cautioned, the “use of pornography”
evidence carries a high potential for unfair prejudice – especially in sex crimes cases, and
even more so in cases involving sex crimes against children. State v. Rodriguez, 254 S.W.3d
at 376; State v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996). A jury can easily misuse such
evidence as propensity evidence.

       Because Mr. Clark covertly persisted in what his wife considered to be sexual
misconduct (use of pornography), the jury could have inferred that Mr. Clark was similarly
inclined to commit more serious sexual misconduct in secret and against his wife’s wishes,
e.g., molesting their daughters in the night. Indeed, Ms. Clark herself articulated her fear that
the pornography would “open the door to other things.” Thus, the trial court abused its
discretion in finding that the prejudicial effect of this volatile evidence did not outweigh its
minimal probative value.

       Second, the State used the evidence of Mr. Clark’s pornography use to impugn his
character for truthfulness, and the trial court’s instructions prompted the jury to consider the
evidence for that purpose even though it is impermissible. As we have explained, evidence




                                              -23-
of other crimes, wrongs, or acts is not generally admissible for the purpose of impugning the
defendant’s credibility.12

       Testifying for the State, Ms. Clark stated that Mr. Clark had been “deceptive” about
his use of pornography “for many years” and that the way he lied “to [her] face” made her
“distrust” him. During its cross-examination of Mr. Clark, the State characterized him as
being “exceedingly deceitful” and asked him if he had “lied about [his use of pornography]
again, again, and again.” In its closing arguments, the State did not argue that the evidence
of Mr. Clark’s use of pornography contradicted Dr. Walker’s diagnosis or even that it
provided a more complete picture of the Clarks’ relationship. Rather, the State insisted that
the evidence was all about “deception.”

         The trial court’s limiting instruction prompted the jury to consider the evidence for
the purpose of “evaluating [the parties’] credibility.” Because juries are presumed to follow
a trial court’s instructions, State v. Parker, 350 S.W.3d 883, 897 (Tenn. 2011), we presume
that the jury in this case considered Mr. Clark’s use of pornography to assess his character
for truthfulness. This is a case in which Mr. Clark’s credibility was essentially an issue of
character. Erroneously admitting credibility character evidence in a “close case” – where
credibility is the sole issue – is error. State v. Rodriguez, 254 S.W.3d at 377.

        In summary, we find (1) that the evidence of Mr. Clark’s use of pornography posed
a danger of being used as propensity evidence (suggesting that Mr. Clark was a sexually
immoral person), (2) that the State chiefly used the evidence to impugn Mr. Clark’s character
for truthfulness, and (3) that the trial court’s instruction had the same effect. Thus, the
portion of the trial court’s limiting instruction that directed the jury to use the pornography
evidence to assess the parties’ “credibility” was unfair to Mr. Clark because it encouraged
the jury to consider the evidence regarding his use of pornography for an improper purpose.




        12
          We note that the State could have offered this evidence as impeachment evidence under Tenn. R.
Evid. 608, although such evidence could not be offered during the State’s case-in-chief. Tenn. R. Evid.
404(a)(3) establishes that one exception to the general ban on character evidence is evidence to reveal “the
character of a witness as provided in Rules 607, 608, and 609.” Rule 607 establishes that any party may
attempt to impeach the character of a witness. Rule 608 provides the limitations and procedures that apply
to impeachment evidence. Rule 609, inapplicable here, pertains to impeachment by evidence of conviction
of a crime. Therefore, under these Rules, after Mr. Clark took the stand, the State could have cross-examined
him regarding specific instances of his prior conduct “for the purpose of attacking or supporting [Mr.
Clark’s] character for truthfulness” – assuming the proper procedures were followed. Tenn. R. Evid. 608(b).


                                                    -24-
                                              D.

       Determining that the trial court erred by admitting the evidence relating to Mr. Clark’s
use of pornography and instructing the jury that it could consider this evidence to evaluate
the parties’ credibility does not end our inquiry. We must also decide whether these errors
were harmless in the context of this case.
Determining whether evidence “more probably than not” affected the jury’s decision-making
process can be a difficult question.

        In searching for an answer, we have found it helpful to compare this case with State
v. Rodriguez. Like the Rodriguez case, this case involves allegations that a close relative
sexually abused two children. The children testified in both cases, although the testimony
in Rodriguez was more detailed. Both cases included oral trial testimony that the defendant
viewed pornography. But while the Rodriguez cased involved the defendant’s use of illegal
child pornography, the evidence in this case involved the use of adult pornography which is
not illegal. Unlike Mr. Rodriguez, Mr. Clark confessed to the molestations. Unlike the
Rodriguez case, in which the State offered the pornography evidence for the propensity
purpose of showing the defendant had “a thing for children,” the State in this case offered
a non-propensity reason for proffering the evidence. Especially in light of the fact that Mr.
Clark made recorded admissions of guilt, there are substantive grounds to distinguish this
case from State v. Rodriguez.

        In State v. Rodriguez, the pornography evidence indirectly impugned the defendant’s
credibility and probably affected the jury’s verdict because the case boiled down to the jury’s
weighing the defendant’s testimony against the testimony of his victims. State v. Rodriguez,
254 S.W.3d at 377. Mr. Clark’s case, however, includes a detailed confession. This
confession changes the harmless error calculus. Although the State used the pornography
evidence to portray Mr. Clark as a serial liar, the harmfulness of that evidence is blunted by
the existence of other evidence that Mr. Clark had not always told the truth. Either Mr. Clark
lied in his confession or he lied when he retracted his confession. The jury knew Mr. Clark
had been untruthful one way or the other. Its task was to determine whether his confession
or his retraction was the truth. For this reason, presenting additional evidence that Mr. Clark
was capable of lying was unlikely to affect the jury’s decision-making process.

        Determining the harmfulness of erroneously admitted evidence also depends on the
strength of the evidence as a whole. See State v. Rodriguez, 254 S.W.3d at 371-72. In this
case, the jury heard recordings in which Mr. Clark confessed in detail to digitally penetrating
his daughters’ private parts over several months. As the State pointed out in its rebuttal
arguments, Mr. Clark’s admissions closely tracked the girls’ testimony. During their
recorded conversations, Ms. Clark encouraged her husband to admit to other acts such as

                                             -25-
having genital intercourse with the girls and masturbating in front of them. Had his
confession been a fabrication designed solely to assuage his wife, Mr. Clark might well have
admitted these behaviors. Mr. Clark, after all, did not know what his daughters had said
about him. Instead, Mr. Clark admitted only to digitally penetrating his daughters, which is
precisely what they accused him of doing. A jury would likely have inferred that the reason
Mr. Clark confessed to the same sort of activities his daughters reported was because he
actually did them.

       Therefore, the State’s evidence in this case was considerably stronger than the State’s
evidence in State v. Rodriguez. In light of the fact that the jury knew Mr. Clark was capable
of lying and the fact that the trial court and the prosecution counseled the jury not to use the
evidence as propensity evidence for sexual misconduct, we find it unlikely that the erroneous
testimony concerning Mr. Clark’s pornography use had a “substantial and injurious” impact
on the jury’s decision-making process. State v. Rodriguez, 254 S.W.3d at 372 (citing
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Mr. Clark has not carried his burden
of proving that the evidence was harmful under Tenn. R. App. P. 36(b).

       This opinion should not be misconstrued as granting the State license to introduce
evidence of adult pornography use in trials for sex crimes. The error in this case barely clears
the harmless error hurdle. Had Mr. Clark’s confession been any less compelling, we would
have reversed his convictions.

                                              V.

       Finally, Mr. Clark argues the trial court committed reversible error by instructing the
jury that the mental state of “recklessness” satisfied all the elements of aggravated sexual
battery and rape of a child. Mr. Clark argues this error “impermissibly lowered the State’s
burden of proof.” We find that the trial court’s instructions relating to rape of a child were
accurate and clear. Although we recommend that future courts use more precise instructions
for aggravated sexual battery, we find no reversible error in the instructions to this jury.

                                              A.

        Defendants in criminal cases have a constitutional right to a correct and complete
charge of the law. State v. Dorantes, 331 S.W.3d at 390; State v. Majors, 318 S.W.3d 850,
864 (Tenn. 2010) (quoting State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001)). Accordingly,
trial courts have a duty in all criminal cases to instruct the jury on the general principles of
law applicable to the facts of the case. State v. Thompson, 285 S.W.3d 840, 842 n.1 (Tenn.
2009) (quoting State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)); State v. Burns, 6
S.W.3d 453, 464 (Tenn. 1999). As part of their instructions in criminal cases, trial courts

                                              -26-
must describe and define each element of the offense or offenses charged. State v. Faulkner,
154 S.W.3d 48, 58 (Tenn. 2005); State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989).

       Whether jury instructions are sufficient is a question of law appellate courts review
de novo with no presumption of correctness. See State v. Hawkins, 406 S.W.3d at 128; Nye
v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011). While the pattern jury
instructions are frequently used as a source for jury instructions in criminal cases, State v.
Davis, 266 S.W.3d 896, 901 n.2 (Tenn. 2008), they are not entitled to greater deference than
the other instructions given by the trial court, see State v. James, 315 S.W.3d 440, 446 (Tenn.
2010) (quoting State v. Rimmer, 250 S.W.3d 12, 30 (Tenn. 2008)).

       When called upon to review the adequacy of a particular jury instruction, reviewing
courts should view the instruction in the context of the charge as a whole. State v. Rimmer,
250 S.W.3d at 31; State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). When a challenged
instruction was so erroneous that the instruction alone infected the entire trial and resulted
in a conviction that violates due process, State v. James, 315 S.W.3d at 446 (quoting State
v. Rimmer, 250 S.W.3d at 31), or when the judge’s charge, taken as a whole, failed to fairly
submit the legal issues or misled the jury as to the applicable law, State v. Majors, 318
S.W.3d at 864 (quoting State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005)), such
deficiencies are prejudicial error that require reversal.

       The defendant’s mental state, or “mens rea,” is a material element of the crimes of
aggravated sexual battery and rape of a child. Accordingly, the failure to properly instruct
the jury on a material element of an offense is a non-structural constitutional error. When
such an error occurs, the conviction must be reversed unless the State can prove beyond a
reasonable doubt that the error was harmless. State v. Cecil, 409 S.W.3d 599, 610 (Tenn.
2013); State v. Hawkins, 406 S.W.3d at 128.

        Not every statutory crime contains a specific required mental state. See State v. Page,
81 S.W.3d 781, 786 (Tenn. Crim. App. 2002) (observing that criminal statutes generally
define the applicable mental state) (No Tenn. R. App. P. 11 application filed). Accordingly,
the Tennessee Code contains a generic mens rea statute. Under Tenn. Code Ann. §
39-11-301(c) (2010), whenever a statutory offense does not specify a mental element, then
“intent, knowledge or recklessness suffices to establish the culpable mental state.” See also
State v. Page, 81 S.W.3d at 786 (stating that “[i]f a culpable mental state is not specified [in
the statute defining the offense], then intentional, knowing, or reckless will generally
suffice”).




                                              -27-
                                                     B.

       We turn first to the crime of rape of a child. In the past, the Court of Criminal
Appeals has lacked unanimity concerning the mental states necessary to convict a person of
rape of a child. See State v. Lynn, No. M2008-00532-CCA-R3-CD, 2009 WL 1812419, at
*5 (Tenn. Crim. App. June 25, 2009) (acknowledging a split of authority regarding the mens
rea for rape of a child), perm. app. denied (Tenn. June 19, 2012); State v. Williams, No.
M2005-00836-CCA-R3-CD, 2006 WL 3431920 (Tenn. Crim. App. Nov. 29, 2006) (split
opinion concerning rape of a child) (No Tenn. R. App. P. 11 application filed). We therefore
take this opportunity to resolve the question.

        Tenn. Code Ann. § 39-13-522(a) defines the two elements of this class-A felony:

                (a) Rape of a child is the unlawful sexual penetration of a victim
                by the defendant or the defendant by a victim, if the victim is
                more than three (3) years of age but less than thirteen (13) years
                of age.

This definition contains no mental state for either element. Accordingly, the Thirteenth
Edition of the Tennessee Pattern Jury Instructions invokes the generic mens rea statute.

       In this case, relying on 7 Tennessee Pattern Jury Instructions – Criminal § 10.12 &
cmt. 2 (13th ed. 2009), the trial court instructed the jury that Mr. Clark could be found guilty
of this crime only if the State proved beyond a reasonable doubt that “he acted either
intentionally, knowingly, or recklessly.” In accordance with the Pattern Jury Instruction
Committee’s comments on this offense, the trial court’s instructions also defined the terms
“intentionally, knowingly, or recklessly,” tracking the definitions found in Tenn. Code Ann.
§ 39-11-302(a)-(c) (2006).

       We find that the jury was properly instructed. The first element of rape of a child is
the actus reus – “unlawful sexual penetration.” Because Tenn. Code Ann. § 39-13-522(a)
does not contain a specific mental state for this offense, the generic mens rea statute fills in
the gap. The unlawful sexual penetration may be done intentionally, knowingly, or
recklessly. Tenn. Code Ann. § 39-11-301(c).13 Moreover, the “sexual penetration” element


        13
          See also State v. Barney, 986 S.W.2d 545, 550 (Tenn. 1999) (“Rape of a child requires sexual
penetration of the victim, and the mental state required may range from intentional to knowing or reckless.”);
State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997) (“Obviously, the act for which the defendant is indicted,
‘unlawfully sexual penetrat[ing]’ a person under the age of thirteen, is committable only if the principal
                                                                                               (continued...)

                                                    -28-
relates both to the nature of the conduct and to the result of the conduct. State v. Higgins,
No. E2006-01552-CCA-R3-CD, 2007 WL 2792938, at *10 (Tenn. Crim. App. Sept. 27,
2007) (No Tenn. R. App. P. 11 application filed); State v. Walters, No. M2003-03019-CCA-
R3-CD, 2004 WL 2726034, at *13 (Tenn. Crim. App. Nov. 30, 2004), perm. app. denied
(Tenn. Mar. 21, 2005). The “reckless” mens rea can apply to the circumstances surrounding
a defendant’s conduct or to the result of the defendant’s conduct. State v. Page, 81 S.W.3d
at 787. Because the act of sexual penetration relates to the result of the defendant’s conduct,
the culpable mental state of recklessness is sufficient to support a conviction for rape of a
child.14 Because recklessness is a sufficiently culpable mental state to support a conviction
for rape of a child, ipso facto the more-culpable mental states of knowing and intentional
may also support such a conviction.

       The second element of rape of a child – the fact that “the victim is more than three (3)
years of age but less than thirteen (13) years of age” – is a circumstance surrounding the
conduct. Again, the statute defines no mental state specific to this element. The generic
mens rea statute again fills the gap. Because the “reckless” mens rea may properly be
applied to “the circumstances surrounding [a] defendant’s conduct or the result of [the]
defendant’s conduct,” State v. Page, 81 S.W.3d at 787, a defendant may satisfy this element
when he or she is reckless, knowing, or intentional regarding the attendant circumstance of
the age of the victim. See State v. Blanton, No. M2007-01384-CCA-R3-CD, 2009 WL
537558, at *14 (Tenn. Crim. App. Mar. 4, 2009) (“[R]eckless conduct is sufficient for the
element that the victim is less than thirteen years old.”), perm. app. denied (Tenn. Aug. 24,
2009).

        We therefore find that, regarding the crime of rape of a child, a court accurately
instructs the jury when it presents the elements of the crime, Tenn. Code Ann. § 39-13-
522(a), and instructs the jury that it may find the defendant guilty if the State has proven
beyond a reasonable doubt that the defendant acted recklessly, knowingly, or intentionally
in relation to both elements of the offense. See State v. Branch, No. M2005-01125-CCA-R3-
CD, 2006 WL 1932705, at *5-6 (Tenn. Crim. App. July 10, 2006) (upholding almost
identical instructions regarding rape of a child), perm. app. denied (Tenn. Nov. 6, 2006).




        13
         (...continued)
actor’s mens rea is intentional, knowing, or reckless.”).
        14
          In State v. Womack, No. E2003-02332-CCA-R3-CD, 2005 WL 17428, at *8-9 (Tenn. Crim. App.
Jan. 4, 2005) (No Tenn. R. App. P. 11 application filed), the Court of Criminal Appeals determined that the
“reckless” mens rea may not apply to “sexual penetration” under the aggravated rape statute. However, we
agree with the analysis in State v. Walters, 2004 WL 2726034, at *12-14. Womack is overruled on this point.

                                                    -29-
                                              C.

      We now turn to aggravated sexual battery, which is a bit more complicated. Tenn.
Code Ann. § 39-13-504(a) defines this class-B felony. The relevant elements in this case are:

              unlawful sexual contact with a victim by the defendant or the
              defendant by a victim accompanied by any of the following
              circumstances:
              ....
              (4) The victim is less than thirteen (13) years of age.

Again, the statute provides no specific mental state. As with rape of a child, the fact that the
victim is less than thirteen years old is a circumstance surrounding the crime. Because any
of the three mental states listed in Tennessee’s generic mens rea statute may be properly
applied to a “circumstance[] surrounding the crime,” State v. Page, 81 S.W.3d at 787, a
defendant may violate this element of the statute by acting recklessly, knowingly, or
intentionally. See Tenn. Code Ann. § 39-11-301(c).

       The statutory actus reus of this crime differs from the actus reus of rape of a child in
a significant respect. Where rape of a child requires “unlawful sexual penetration,”
aggravated sexual battery requires “unlawful sexual contact.” This difference is significant
because a separate statute, Tenn. Code Ann. § 39-13-501(6), defines the term “sexual
contact:”

              As used in §§ 39-13-501 – 39-13-511, except as specifically
              provided in § 39-13-505, unless the context otherwise requires:
              ....
              (6) “Sexual contact” includes the intentional touching of the
              victim’s, the defendant’s, or any other person’s intimate parts,
              or the intentional touching of the clothing covering the
              immediate area of the victim’s, the defendant’s, or any other
              person’s intimate parts, if that intentional touching can be
              reasonably construed as being for the purpose of sexual arousal
              or gratification[.]

       First, this statutory definition explicitly applies to Tenn. Code Ann. §§ 39-13-501
through -511 – a range which includes aggravated sexual battery in Tenn. Code Ann. § 39-
13-504(a). Second, this statutory definition at Tenn. Code Ann. § 39-13-501(6) denotes both
a specific actus reus and a specific mens rea. “Sexual contact” constitutes “intentional
touching.” The actus reus – “touching” someone’s “intimate parts” or the clothing

                                              -30-
immediately covering the intimate parts – must be done intentionally. Not only must the
defendant’s mental state be “intentional,” but the intent must be reasonably construed as “for
the purpose of sexual arousal or gratification.”

       Because this statutory definition found in Tenn. Code Ann. § 39-13-501(6) is more
specific than the generic mens rea statute, and because the definition explicitly applies to
aggravated sexual battery, we find that the “sexual contact” element of aggravated sexual
battery may only be satisfied if the defendant’s conduct was “intentional.” Although the
second element of aggravated sexual battery at issue in this case (the age of the victim)
derives its mens rea from the generic mens rea statute, the first element (unlawful sexual
contact) derives its mental state from Tenn. Code Ann. § 39-13-501(6)’s definition of “sexual
contact.” In this case, the specific trumps the general in regard to the first element of
aggravated sexual battery.

        We now consider whether the trial court’s instructions adequately informed the jury
that to convict they must find that Mr. Clark (1) intentionally touched his victim’s private
areas in a way that could be reasonably construed as for the purpose sexual arousal or
gratification, and that (2) his victim was less than thirteen years old – an attendant
circumstance toward which he could act recklessly, knowingly, or intentionally. The trial
court’s instructions are based on 7 Tennessee Pattern Jury Instructions – Criminal § 10.03
(13th ed. 2009). The court instructed the jury:

              For you to find Fred Chad Clark, II guilty of aggravated sexual
              battery, the State must have proven beyond a reasonable doubt
              the existence of the following essential elements:
              (l) that he had unlawful sexual contact with the alleged victim.
              . ., in which the defendant intentionally touched her intimate
              parts or the clothing covering the immediate area of her intimate
              parts; and
              (2) that [the victim] was less than thirteen (13) years of age; and
              (3) that he acted either intentionally, knowingly or recklessly.

       As Mr. Clark points out, the way this instruction was structured created a potential for
juror confusion concerning the applicable mental states. Regarding element (1), the jury
instruction specifies that the “sexual contact” must have been an intentional touching. As
we have explained, this core actus reus element of aggravated sexual battery must carry an
intentional mental state. However, element (3) of the jury instructions recites the three
mental states from the generic mens rea statute in a way that suggests that “intentionally,
knowingly, or recklessly” could apply to both elements (1) and (2). As we have explained,



                                             -31-
while all three of these mental states may apply to the element of the age of the victim in
element (2), element (1) may only be done intentionally.

       Determining whether this instruction is erroneous is a close call. Despite the
ambiguity, a jury which read these instructions carefully would likely determine that the
“sexual contact” element had to be done “intentionally,” regardless of the potentially
confusing placement of element (3) of the trial court’s jury instructions. Because the words
“intentionally touched” occur in close proximity to “unlawful sexual contact” in element (1),
a reasonable jury would probably interpret this to mean that the more specific mens rea of
“intentionally” had to apply to the touching/sexual contact, while the broader mental states
contained in element (3) applied to all other aspects of the crime.

       But we need not determine whether this instruction was erroneous because any error
regarding the “reckless” or “knowing” mens rea in relation to aggravated sexual battery
would be harmless beyond a reasonable doubt. The State’s theory was that all of Mr. Clark’s
unlawful conduct was intentional (and for the purpose of sexual arousal or gratification).
Because neither the State nor Mr. Clark presented evidence that his behavior might have been
done recklessly or knowingly (but not intentionally), the jury had no occasion to consider
these lesser mental states in regard to the actus reus of aggravated sexual battery. The
uncontradicted evidence regarding Mr. Clark’s conduct, including his own confession,
proved that his conduct was intentional. Even had the jury misunderstood the instructions
and believed that “reckless” or “knowing” behavior satisfied the “sexual contact” element
of aggravated sexual battery, that misunderstanding would not have prejudiced Mr. Clark in
any way. See State v. Lynn, 2009 WL 1812419, at *5; State v. Higgins, 2007 WL 2792938,
at *10; State v. Walters, 2004 WL 2726034, at *14.

        Nevertheless, we encourage future courts and the Committee on Pattern Jury
Instructions to pursue greater precision in explaining the mental states that apply to the
separate elements of aggravated sexual battery. Instead of including reckless, knowing, and
intentional at the end of the jury instruction as the trial court did in this case, future courts
should specify that (1) unlawful sexual contact means intentional touching of the intimate
parts or the clothing immediately covering the intimate parts, and that this intentional
touching must be reasonably construed as being for the purpose of sexual arousal or
gratification; and (2) that the victim was less that thirteen years old, and the defendant acted
recklessly, knowingly, or intentionally regarding this fact.




                                              -32-
                                             VI.

        Mr. Clark also asks this Court to reverse his conviction on the basis of cumulative
error. The cumulative error doctrine embodies the idea that a multiplicity of errors – though
individually harmless – may in the aggregate violate a defendant’s due process right to a fair
trial. State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010). We have found one error in this
case, and determined it was harmless. We discussed a second potential error, but determined
that even if erroneous it would not have prejudiced Mr. Clark in any way. Therefore, we find
no basis for a reversal based on cumulative error.

                                            VII.

       In summary, we find that Mr. Clark’s confessions were admissible because they were
not involuntary. His confessions were also sufficiently corroborated to support his
convictions. The trial court erred by allowing the State to present evidence relating to Mr.
Clark’s viewing of adult pornography during its case-in-chief, but this error was harmless.
While the jury instructions should have been more precise, they did not prejudice Mr. Clark,
even if they were erroneous. Accordingly, we affirm the judgment of the Court of Criminal
Appeals. The costs of this appeal are taxed to Fred Chad Clark, II and his surety for which
execution may issue if necessary.


                                                    ______________________________
                                                    WILLIAM C. KOCH, JR., JUSTICE




                                             -33-
