        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   June 22, 2010 Session


                    STATE OF TENNESSEE v. WADE TYLER

                   Appeal from the Circuit Court for Rutherford County
                             No. F-61026 Don Ash, Judge



                  No. M2009-01762-CCA-R3-CD - Filed January 21, 2011


Appellant, Wade Tyler, was indicted by the Rutherford County Grand Jury for one count of
rape, one count of incest, and one count of statutory rape by an authority figure. Appellant
was convicted by a jury and sentenced to eight years for the rape conviction, four years for
the incest conviction, and four years for the statutory rape by an authority figure conviction.
The sentences for rape and incest were ordered to be served concurrently. The sentence for
statutory rape by an authority figure was ordered to be served consecutively to the sentence
for rape, for a total effective sentence of twelve years. After the denial of a motion for new
trial, this appeal ensued. On appeal, the following issues are presented for our review: (1)
whether the evidence is sufficient to support the convictions; (2) whether the trial court erred
by refusing to allow cross-examination of the victim about specific instances of conduct; (3)
whether the trial court improperly imposed consecutive sentencing; and (4) whether the
indictment was defective. After a review of the record and applicable authorities, we
determine that the evidence was sufficient to support the convictions and that the trial court
properly ordered consecutive sentencing. Further, we determine that the trial court properly
refused to allow cross-examination of the victim about specific instances of conduct and that
the indictment was sufficient to inform Appellant of the charges against him. However,
because we have identified several discrepancies in the record, we remand the matter for
correction of the judgment form for statutory rape by an authority figure. Accordingly, the
judgments of the trial court are affirmed and the matter is remanded.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
J.C. M CL IN, JJ., joined.

Jerry Scott, Murfreesboro, Tennessee, for the appellant, Wade Tyler.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William C. Whitesell, Jr. , District Attorney General, and Laural Hememway,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                      OPINION

                                         FACTUAL BACKGROUND

       The evidence at trial revealed that, at the time of the incidents that gave rise to the
indictment, Appellant lived in Rutherford County with his wife, J.T., his fifteen-year-old
daughter, the victim, and two other children.1 In August of 2006, Appellant took the victim
to Walmart to buy school supplies. According to the victim, the supplies were purchased
with her own money. When the two left the store, Appellant offered to repay half of the
money to the victim in exchange for a “hookup.” The victim declined the offer. Appellant
then rubbed her leg. The victim suggested that Appellant ask his wife to fulfill his requests.
Appellant responded that “it’s not the same.”

       Appellant and the victim returned home after the shopping trip to Walmart. The
victim went to her room. Sometime later, the victim asked Appellant for her prescription
medication.2 Appellant brought the medication to the victim’s room. Appellant knocked on
the door. The victim answered the door, and Appellant pushed his way inside. Appellant
turned out the lights, turned off the television, and pulled off the victim’s pajama pants.
Appellant then forced the victim to remove her underpants. Appellant performed cunnilingus
on the victim and later inserted his penis into her vagina. The victim cried during the
encounter. Her stepmother was asleep in another bedroom, and her stepbrother was in his
bedroom, a converted garage, at the time.

        Later that same month, the victim was watching television when Appellant came to
sit next to her on the couch. Appellant asked the victim if she wanted to “do something
later.” The victim refused and went to her room. Appellant later went to the victim’s room
and told her that they needed to talk outside. The victim followed Appellant to a shed in the
backyard. Once inside the shed, Appellant forced the victim to perform oral sex by placing
his penis in her mouth. Appellant then had sexual intercourse with the victim before

         1
           It is the policy of this Court to protect the identity of minor victims of sexual abuse. W e have chosen to refer
to Appellant’s daughter herein as “the victim” and to refer to other family members by their initials in order to protect
her identity.


         2
             The type of medication taken by the victim does not appear to be included in the record.

                                                            -2-
ejaculating in her mouth. The victim spit out the ejaculate as she was walking back to the
house from the shed. The victim later recorded these events in her personal diary.

       The victim’s stepmother, J.T., took her to speak with authorities. She thought it
“would make us look better if we were the ones that brought [the victim] up [to talk with
authorities].” During the investigation, authorities collected a comforter from the victim’s
bed as well as the victim’s diary. Later, DNA samples were taken from Appellant and the
victim. Appellant’s wife refused to provide a DNA sample for the investigation.

        During the investigation, the comforter was analyzed. It revealed multiple semen
stains. However, only one single sperm cell was present in the semen. Analyst Katherine
Butler opined that the contributor of the sperm had a vasectomy. This would explain the lack
of sperm in the semen stains. During the analysis, partial DNA profiles were created from
the genetic materials recovered from the comforter. Three distinct individuals were
identified. For one of the profiles, greater than 99 percent of the population could be
excluded except for Appellant. For another profile, greater than 99 percent could be
excluded but could not exclude the victim. The remaining profile was the least present of
the three.

       Appellant testified at trial and vehemently denied touching his daughter. Appellant
claimed that he “never touched [his daughter] in a way that a parent wouldn’t touch a child.”
Appellant admitted that his semen was on the comforter and acknowledged that he had a
vasectomy in 2002. Appellant also admitted that since the indictment he had given up
parental rights to the victim.

        Appellant’s ex-wife testified that the victim lived with her for a few months when she
was thirteen. She testified that the victim had a reputation for untruthfulness but that she
expected “any child and any adult to lie.” The victim’s reputation for untruthfulness was
testified to by Appellant’s ex-wife’s fiancé as well as Appellant’s stepson and Appellant’s
wife.

       At the conclusion of the jury trial, Appellant was convicted of rape, incest, and rape
by an authority figure. The trial court sentenced Appellant to eight years for rape, four years
for incest, and four years for rape by an authority figure. The trial court ordered Appellant
to serve the sentence for rape concurrently to the sentence for incest. The trial court also
ordered Appellant to serve the sentence for rape by an authority figure consecutively to the
sentence for rape, for a total effective sentence of twelve years.

       Appellant filed a motion for new trial. The trial court denied the motion after a
hearing. Appellant filed a timely notice of appeal. On appeal, Appellant challenges the

                                              -3-
sufficiency of the evidence, his sentence, and the trial court’s decision regarding the
admissibility of evidence regarding the victim’s character.

                                           Analysis

                         Specific Instances of Conduct of the Victim

        On appeal, Appellant argues that the trial court erred by refusing to allow defense
counsel to cross-examine the victim about her prior accusations of rape against Appellant.
Specifically, Appellant argues that because the only evidence came from Appellant and the
victim, it was “incumbent upon the trial judge to insure that matters which may be damaging
to the reputation of either party involved in the acts under consideration [to] be fully aired.”
The State argues that the trial court acted within its discretion.

        Specific instances of conduct of a witness for the purpose of attacking the witness’s
character for truthfulness, other than criminal convictions as set forth in Tennessee Rule of
Evidence 609, are not admissible as extrinsic evidence. However, Tennessee Rule of
Evidence 608(b) allows a party to ask a witness about specific instances of conduct that are
probative of the witness’s untruthfulness in order to attack the credibility of the witness. The
trial court must first determine that the alleged conduct has probative value and that there is
a reasonable factual basis for the inquiry. See Tenn. R. Evid. 608(b)(1). The trial court must
also determine that “the probative value of the evidence, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect.” Tenn. R. Evid. 608(b)(2). The
trial court’s ruling will only be disturbed upon a finding of an abuse of discretion. See State
v. Roberts, 943 S.W.2d 403, 408 (Tenn. Crim. App. 1996), overruled on other grounds by
State v. Ralph, 6 S.W.3d 251, 257 (Tenn. 1999).

        In the case herein, the record reflects that Appellant sought to introduce evidence of
prior false allegations of molestation. Specifically, during a jury-out hearing, Appellant
proffered the testimony of R.W., who claimed that the victim told her that she told
Appellant’s ex-wife that “my daddy had messed with me, but he didn’t” in an attempt to
interfere with Appellant’s marriage to his third wife, J.T. R.W. admitted that she had no
first-hand knowledge of the allegations. Appellant also proffered the testimony of D.H., the
victim’s stepsister, who claimed that the victim stole jewelry and money from her when she
was ten years old. The trial court excluded the testimony on the basis that the theft was
irrelevant and that R.W. had no personal knowledge of the false accusations.

       We determine that the trial court did not abuse its discretion. The record indicates that
R.W. had no personal knowledge of the allegedly false accusations made by the victim.
Further, Appellant was later able to introduce the testimony of at least four witnesses who

                                              -4-
testified about the victim’s reputation for being untruthful. Appellant is not entitled to relief
on this issue.

                                     Sufficiency of the Evidence

       Appellant next claims that the evidence is insufficient to support the convictions.
Specifically, Appellant claims that “the absence of more DNA attributable to [Appellant]”
and the fact that the analyst that testified at trial was “not the technician who actually
examined the DNA samples” has the effect of “mak[ing] the verdict suspect.” 3 In other
words, Appellant asks this Court to reweigh the DNA evidence presented by the State. The
State contends that this Court “may not reweigh evidence presented at trial” and that the
evidence is more than sufficient to establish Appellant’s guilt.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W. 2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from reweighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990).



        3
         Appellant does not allege or argue that this procedure violated his confrontation rights under the
sixth Amendment to the United States Constitution. See e.g. Melendez-Diaz v. Massachusetts, __ U.S. __,
129 S. Ct. 2527 (2009).

                                                   -5-
       At the outset, Appellant requests that this Court reweigh the DNA evidence. He
argues that the DNA evidence was not tested for its reliability and trustworthiness and urges
this Court to take a “fresh look” at the DNA testing herein. As an appellate court, we are
unable to reweigh or reevaluate the evidence presented at trial as the jury is the sole trier of
fact. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

                                            A. Rape

        Rape is the “unlawful sexual penetration of a victim by the defendant or of the
defendant by the victim” accomplished through force or coercion or without the consent of
the victim.” T.C.A. § 39-13-503. “Sexual penetration” is “sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s
body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any
other person’s body, but emission of semen is not required . . . .” T.C.A. § 39-13-501(7).

       The evidence at trial, when taken in a light most favorable to the State, shows that
Appellant entered the victim’s bedroom and removed her pants and underwear against her
will. Appellant then performed cunnilingus on the victim and inserted his penis into her
vagina. The DNA on the comforter did not exclude Appellant as the contributor. The jury
accredited the testimony of the victim. This is an issue that is resolved by the trier of fact and
not the appellate courts. Pruett, 788 S.W.2d at 561. The evidence was sufficient to support
the rape conviction. Appellant is not entitled to relief on this issue.

                                           B. Incest

       Incest occurs when a person “engages in sexual penetration . . . , with a person,
knowing the person to be, . . . [t]he person’s natural . . . child . . . .” The proof at trial
indicated that Appellant had sexual intercourse with the victim, his daughter, in a shed in the
backyard. The jury accredited the testimony of the victim. The proof was sufficient to
support the conviction. Appellant is not entitled to relief on this issue.

                          C. Statutory Rape by an Authority Figure

       Tennessee Code Annotated section 39-13-532 states:


       (a) Statutory rape by an authority figure is the unlawful sexual penetration of
       a victim by the defendant or the defendant by the victim when:

       (1) The victim is at least thirteen (13) but less then eighteen (18) years of age;

                                               -6-
       (2) The defendant is at least four (4) years older than the victim; and

       (3) The defendant was at the time of the offense in a position of trust, or had
       supervisory or disciplinary power over the victim by virtue of the defendant’s
       legal, professional or occupational status and used the position of trust or
       power to accomplish the sexual penetration; or

       (4) The defendant had, at the time of the offense, parental or custodial
       authority over the victim and used the authority to accomplish the sexual
       contact.

There is no dispute in the case herein that Appellant was the victim’s father. Appellant
contends that he did not touch or do anything to the victim. The victim, on the other hand,
recounted an episode during which Appellant performed cunnilingus on her and she was
forced to perform fellatio on him. Again, the jury accredited the testimony of the victim. We
are unable to reweigh the evidence. The evidence was sufficient to support this conviction.
Appellant is not entitled to relief on this issue.

                                         Sentencing

       Appellant argues that the trial court erred in ordering consecutive sentencing.
Appellant also contends that the trial court erred by denying probation but concedes that
statutory rape by an authority figure is a not an offense that is eligible for probation.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s
action is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). We are to also recognize that the defendant bears
“the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

       At the outset, we note that Appellant’s argument with regard to probation has no
merit. He conceded in his brief that statutory rape by an authority figure is a crime for which
probation is not an option. This issue is without merit.

      Appellant also challenges the imposition of consecutive sentences. A trial court may
impose consecutive sentences upon a determination that one or more of the criteria set forth



                                              -7-
in Tennessee Code Annotated section 40-35-115(b) exists. This section permits the trial
court to impose consecutive sentences if the court finds, among other criteria, that:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;

       (2) The defendant is an offender whose record of criminal activity is extensive;

       (3) The defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;

       (4) The defendant is a dangerous offender whose behavior indicates little or
       no regard for human life, and no hesitation about committing a crime in which
       the risk to human life is high;

       (5) The defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       victim or victims;

       (6) The defendant is sentenced for an offense committed while on probation;
       or

       (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

       Appellant was convicted of rape, a Class B felony; incest, a Class C felony; and
statutory rape by an authority figure, a Class C felony.




                                              -8-
       In this case, the trial court based the imposition of consecutive sentencing on
Tennessee Code Annotated section 40-35-115(b)(5), more than two convictions of offenses
involving child sexual abuse. After making it clear that the trial court had considered the
evidence at trial and sentencing as well as the presentence report, the principles of
sentencing, the nature and characteristics of the criminal conduct involved, the mitigating
factors, sentencing practices in Tennessee, the Appellant’s statements on his presentence
report and the potential for rehabilitation, the trial court made the following statement with
regard to consecutive sentencing:

       I’m going to find that this is an appropriate case for consecutive sentencing.
       In looking at that I’m considering the factor that the defendant is convicted of
       two or more statutory offenses involving sexual abuse of a minor with
       consideration of the aggravating circumstances arising from the relationship
       between the victim and victims as well as the other elements there. Based
       upon that consecutive to the rape charge I’m going to run concurrent the incest
       charge but consecutive the statutory rape by authority figure.


        Rule 32(c)(1) of the Tennessee Rules of Criminal Procedure requires that a trial court
specify the reasons for imposing a consecutive sentence. Appellant complains that the trial
court failed to do so. As stated above, Tennessee Code Annotated section 40-35-115(b)(5)
requires a trial court to consider “the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of defendant’s undetected sexual
activity, the nature and scope of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims; . . . .”

       In our review, we determine that the trial court herein considered the criteria of
Tennessee Code Annotated section 40-35-115(b)(5) prior to the imposition of consecutive
sentences and stated those reasons on the record. The trial court did not abuse its discretion.
The effective sentence of twelve years is appropriate for the crimes committed by Appellant.
This issue is without merit.

                                    Validity of Indictment

       As part of his argument with regard to sentencing, Appellant suggests that the
indictment charging him with statutory rape by an authority figure is defective and should
be dismissed. Specifically, Appellant claims that the “statute allegedly violated was Tenn.
Code Ann. § 39-13-530, an unrelated statute listed on the judgment document and signed by
the judge.”



                                              -9-
       The State correctly points out that this issue has not been raised by Appellant prior to
this appeal. When an issue is raised for the first time on appeal, it is typically waived. State
v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996). We note a number of
discrepancies in the record during our review that warrant examination. For example, the
indictment for count three states that Appellant:

         [D]id have unlawful sexual penetration with [the victim], a person at the time
         of the offense, thirteen (13) years of age or older, but less than eighteen (18)
         years of age and [Appellant] had, at the time of the offense, parental or
         custodial authority over the victim and used such authority to accomplish the
         sexual penetration, in violation of T.C.A. 39-13-527.

The indictment uses the correct language in alleging the charge of statutory rape by an
authority figure, but the statute code number is incorrect. Specifically, count three cites the
statutory number for sexual battery by an authority figure, Tennessee Code Annotated §
39-13-527, rather than statutory rape by an authority figure, Tennessee Code Annotated §
39-13-531. Nothing requires that an indictment reference the particular code section that
establishes the offense, and the reference to the statute is mere surplusage. Cole v. State,
512 S.W.2d 598, 601-02 (Tenn. Crim. App. 1974). Additionally, a clerical error on an
indictment does not render an indictment void as long as the indictment correctly states the
offense. Id. Therefore, the indictment herein, while containing a clerical error, is valid.

       Additionally, we note that the judgment form for count three reflects that Appellant
was convicted of statutory rape by an authority figure, in violation of Tennessee Code
Annotated section 39-13-530. The judgment form indicates that this conviction is a Class
D felony. Again, statutory rape by an authority figure is found at Tennessee Code Annotated
section 39-13-532. It is a Class C felony, with a sentencing range of three to six years.4
Therefore, the judgment form should be corrected to indicate the proper statute of conviction
and the proper class of felony for statutory rape by an authority figure. Accordingly, the
matter must be remanded to the trial court for entry of a corrected judgment form.




         4
          W hile the judgment form improperly reflects that Appellant was convicted of a Class D felony, he was properly
sentenced to the range applicable to a conviction of a Class C felony, three to six years. See T.C.A. § 40-35-112(a)(3).



                                                         -10-
                                       Conclusion

       For the foregoing reasons, the matter is remanded to the trial court for entry of a
corrected judgment. In all other respects, the judgments of the trial court are affirmed.




                                         ___________________________________
                                         JERRY L. SMITH, JUDGE




                                           -11-
