        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs November 14, 2013

         STATE OF TENNESSEE v. YOGONDA ABDULA CORLEY

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2010-C-2743     Cheryl Blackburn, Judge


               No. M2013-00464-CCA-R3-CD - Filed February 26, 2014


Defendant, Yogonda Corley, was charged with five counts of aggravated sexual battery, with
three counts being against the victim T.S. and two counts against the victim M.M., and seven
counts of rape of a child, with three counts being against T.S. and four counts being against
M.M. Following a jury trial, Defendant was convicted of six counts of rape of a child, four
counts of aggravated sexual battery, and one count of attempted aggravated sexual battery.
Following a sentencing hearing, Defendant was ordered to serve a total effective sentence
of 75 years incarceration. In this appeal as of right, Defendant asserts that it was plain error
for the trial court: 1) to admit into evidence a recording and transcript of statements by
Defendant obtained by the use of a body wire worn by the mother of one of the victims; 2)
to admit into evidence Defendant’s statements to the police following his arrest; 3) to admit
into evidence the opinion testimony by a nurse practitioner that the victims’ statements were
consistent with their medical examinations; and 4) not to sever the offenses against the two
victims. Defendant asserts that the cumulative effect of these errors entitles him to a reversal
of his convictions. Lastly, Defendant categorizes another section of his brief as a challenge
to the sufficiency of the evidence, but then acknowledges that he chooses not to argue the
sufficiency of the evidence to support his convictions. With regard to the evidentiary issues,
we conclude that the Defendant has waived consideration of the issues by his failure to
contemporaneously object at trial. Also, Defendant failed to request severance of the charges
as to each victim pre-trial. Because the alleged evidentiary issues and severance issue do not
rise to the level of plain error, we decline review. We further conclude that the evidence is
sufficient to support Defendant’s convictions. Accordingly, the judgments of conviction are
affirmed.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, J., joined. C AMILLE R. M CM ULLEN, filed a separate concurring opinion.
James O. Martin, III, Nashville, Tennessee, for the appellant, Yogonda Abdula Corley.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; Sharon Reddick, Assistant
District Attorney General; and Kristen Menke, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                         OPINION

Facts

         In the light most favorable to the State, see Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Tenn. R. App. P. 13(e), the evidence at trial
showed the following. The two victims in this case, whom we will refer to by their initials
T.S. and M.M., are cousins. Both victims were 12 years old at the time of trial. When T.S.
was ten years old, she disclosed several acts of sexual abuse by Defendant that happened
when T.S. was visiting M.M. On one occasion, T.S. and M.M. fell asleep while watching
television. T.S. testified that Defendant woke her up and took her into the living room. T.S.
was lying on her back on the floor, and Defendant reached under her pajamas and touched
her breasts and the inside of her vagina with his fingers. T.S. began to cry and tried to get
up “but he wouldn’t let [her] get up and go back to bed.” Defendant told T.S., “this is our
little secret.” On another occasion, Defendant woke up T.S. and took her into the living
room and touched her breasts and vagina with his fingers and with his tongue and lips. T.S.
was crying and trying to get up and Defendant “wouldn’t let [her] go.” After that incident,
Defendant gave T.S. twenty dollars and “kept on reminding” her not to tell anyone.

       T.S. testified that Defendant touched her on more than three occasions while her
cousin M.M.’s family was living in the house where the first incident occurred (“the old
house”). M.M.’s family moved to another house (“the new house”), where the abuse
continued. T.S. testified about two incidents that occurred in that house. She testified that
on one occasion, after a party at M.M.’s house, Defendant tried to penetrate her anus with
his penis.

       M.M. testified about four incidents that occurred when her family was living in the
old house. She testified that the abuse started when she was nine years old. On one
occasion, Defendant called her into her mother’s bedroom and told her to lift her shirt. When
she refused, Defendant pushed her onto the bed, lifted her shirt, and touched her breasts. She
heard her brothers run back into the house, and Defendant stopped. On another occasion,
M.M. was outside playing when Defendant told her to clean up her room. She went into her
bedroom, and Defendant followed and pushed her onto the bed. He told her to lift up her

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skirt, but she refused. Defendant then lifted M.M.’s skirt and took off her panties, and he put
his penis “inside” her vagina. On another occasion, M.M. and her brothers were in her
brothers’ room playing when Defendant told them to go outside. He told M.M. to stay. He
then took off her pants and touched her on the inside of her vagina with his hand. On another
occasion, Defendant was standing in the doorway of his bedroom, wearing only a towel. He
stopped M.M. in the hallway and told her to touch his penis. She started to run away, and
Defendant told her she was grounded. Defendant grabbed M.M.’s hand and made her touch
his penis.

        M.M. testified that she was ten years old when they moved to “the new house.” She
testified about an incident that occurred three days after they moved into that house. She was
lying in her bed when Defendant entered her bedroom, pulled down her pajamas, and
penetrated her anus with his penis. She testified that it was painful. M.M. testified that
Defendant “forced [her] down” by pinning down her arms and legs. M.M. testified that
Defendant had threatened her not to tell anyone about the abuse by saying, “if you tell, you
know what’s happening.” M.M. believed Defendant would give her “[a] butt whipping”
because he had whipped her before for not letting him touch her. M.M. testified that she “got
sick of” the abuse and told someone at school about it.

Analysis

        We note that Defendant was represented by different counsel at trial and in this
appeal. On appeal, Defendant urges this court to analyze four issues under the plain error
doctrine. Defendant acknowledges that objections were not made at trial to the admission
of the following evidence: 1) a body wire recording of a conversation between T.S.’s mother
and Defendant; 2) Defendant’s subsequent confession to police; and 3) testimony by nurse
practitioner Sue Ross that M.M.’s lack of physical injury was not inconsistent with M.M.’s
testimony. Also, no pre-trial motions to suppress Defendant’s statements were filed.
Defendant also acknowledges that no objection to joinder of the offenses related to both
victims or pretrial motion for severance was filed, and Defendant seeks plain error review
of the trial court’s failure to sever the offenses against the two victims.

       Tennessee Rule of Criminal Procedure 12(b)(2) provides that motions to suppress
evidence and to sever offenses must be raised prior to trial. See also State v. Coulter, 67
S.W.3d 3, 37 (Tenn. Crim. App. 2001). “The rule is applicable when a claim of a
constitutional right is involved whose violation would lead to suppression of evidence.”
State v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim. App. 1998). Here, Defendant was
obligated to file a motion to suppress evidence and to sever the offenses before trial. Failure
to do so constitutes waiver of the issues. See Tenn. R. Crim. P. 12(f).



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        Pursuant to the rules of appellate procedure, the failure to object contemporaneously
to the admission of evidence also constitutes waiver. Tenn. R. App. P. 36(a) (nothing in the
rule shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error); see also State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000)
(“This court is extremely hesitant to put a trial court in error where its alleged shortcoming
has not been the subject of a contemporaneous objection.”).

        Tennessee Rule of Appellate Procedure 36(b) provides that when appropriate, an
appellate court “may” consider an error not properly raised in the lower court. However, the
Advisory Commission Comments to Tennessee Rule of Appellate Procedure 13(b) suggest
that the discretionary authority for the declaration of plain error “be sparingly exercised.”
Tenn. R. App. P. 13(b), Advisory Comm’n Comments (emphasis added). In conducting a
plain error review, a court will reverse for plain error only if: (1) the record clearly
establishes what occurred in the trial court; (2) a clear and unequivocal rule of law has been
breached; (3) a substantial right of the defendant has been adversely affected; (4) the accused
did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to
do substantial justice. See State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting this
court’s plain error test set forth in State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App.
1994)); see also Tenn. R. App. P. 36(b).

        The appellate court need not consider all five factors if it determines that any single
factor indicates that relief is not warranted. Id. at 283. Furthermore, for this court to reverse
the judgment of the trial court, the “‘plain error’ must [have been] of such a great magnitude
that it probably changed the outcome of the trial,” and “recognition should be limited to
errors that had an unfair prejudicial impact which undermined the fundamental fairness of
the trial.” Adkisson, 899 S.W.2d at 642. Moreover, it is the defendant, not the State, who
bears the burden of demonstrating plain error. State v. Gomez, 239 S.W.3d 722, 727 (Tenn.
2007) (Gomez II).

        Three of the four issues Defendant asserts are plain error are evidentiary issues. The
record in this case reflects that Defendant did not file pre-trial motions to suppress or object
to the evidence he argues should not have been admitted. The evidentiary issues were raised
for the first time in Defendant’s “Supplemental Motion for New Trial.” The following
testimony at trial is relevant to these issues.

      T.S.’s mother testified that she reported the alleged abuse to the police and the
Department of Children’s Services. At the direction of Detective Eric Fitzgerald, T.S.’s
mother agreed to wear a body wire during a conversation with Defendant. She went to
Defendant’s house and asked him to go outside to speak with her. She told Defendant that

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the two victims had spoken to each other, even though that statement was untrue, in order to
have “some footing” on Defendant. She spoke to Defendant for 45 minutes. Defendant
initially denied having engaged in sexual contact with either victim. Defendant then admitted
that he had abused T.S. Following this conversation, police immediately arrested Defendant.
A recording and transcript of the conversation between T.S.’s mother and Defendant were
admitted as evidence at trial.

       Detective Fitzgerald testified that law enforcement commonly utilizes a “controlled
phone call” or a “body wire” in order to obtain a confession from a suspect “because a lot of
times the suspects will make admissions to family members if they don’t think the police are
involved.” Detective Fitzgerald equipped T.S.’s mother with a body wire and listened from
a surveillance van parked near Defendant’s home. Regarding his preparation of T.S.’s
mother for the body wire conversation with Defendant, Detective Fitzgerald testified,

        [E]very situation is different. When I go into it, the first thing we do is kind
        of break into the conversation and bring up the topic that we want to get to.
        I just always kind of tell them you just kind of wing it. Especially with
        mothers, I’ll usually tell mothers, let your motherly instincts take over, you
        just think about your daughter and what happened and your goal is to try to
        get them to admit as to what occurred. And I just kind of leave it up to
        them. A lot of times what we’ll do, if we have contact with them through
        text messaging or something, we’ll text them in the middle of it if we hear
        something that’s significant and need her to follow up with it or something.
        But they kind of just do it on their own. It usually works out.

        Detective Figzterald testified that he spent approximately 20 to 25 minutes preparing
T.S.’s mother for the body wire conversation. He testified that he did not give her specific
instructions on what to say to Defendant. He testified, “[s]he actually did a pretty good job
of taking it upon herself to take care of that.” Detective Fitzgerald testified that he did not
instruct T.S.’s mother to lie to Defendant by telling him that both victims had disclosed being
abused. He testified, “No, that was all her. I mean, pretty much that entire body wire was
all her.” Detective Fitzgerald testified that he called T.S.’s mother during her conversation
with Defendant to make suggestions about staying on a particular topic.

       After T.S.’s conversation with Defendant concluded, officers immediately went to
Defendant’s home and arrested him. Detective Fitzgerald testified that Defendant’s only
statement at the time of his arrest was, “I f****d up.” Defendant appeared to have “kind of
a defeated attitude.” Detective Fitzgerald testified that Defendant was not aware that he was
being recorded during his conversation with T.S.’s mother. Defendant was transported to the
Criminal Justice Center, where Detective Fitzgerald interviewed him. On cross-examination,

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Detective Fitzgerald testified that during his interview with Defendant, Defendant repeatedly
denied having penetrated the victims and admitted to briefly “grinding” and “fondling” the
victims. A recording and a transcript of Detective Fitzgerald’s interview with Defendant
were admitted as evidence at trial.

      Absent a contemporaneous objection, there is little in a record to facilitate appellate
review. For this reason, this court has held that “rarely will plain error review extend to an
evidentiary issue.” State v. Ricky E. Scoville, No. M2006–01684–CCA–R3–CD, 2007 WL
2600540 (Tenn. Crim. App. at Nashville, Sept. 11, 2007).

       Because Defendant failed to file a pretrial motion to suppress or object to the
testimony and evidence at trial, and consequently there was no jury-out hearing or
suppression hearing to develop proof and from which the trial court could make findings of
fact, we conclude that the record is inadequate to conduct a plain error review of the
evidentiary issues in this case.

        Defendant relies upon this court’s holding in State v. Ackerman, 397 S.W.3d 617
(Tenn. Crim. App. 2012), in his assertion that the body wire recording should have been
suppressed because T.S.’s mother was acting as a state actor and she overbore Defendant’s
will to resist confessing the offenses. However, in Ackerman, this court had the benefit of
a suppression hearing when it reversed the trial court’s denial of the defendant’s motion to
suppress statements he made to the victim’s mother during a recorded “controlled telephone
call” made at the direction of an investigating officer. Id. at 649.

        While the record before us contains testimony of T.S.’s mother and Detective
Fitzgerald, as well as the content of the recorded conversation, we cannot conclude that the
recording should have been suppressed without a more developed record. There are conflicts
in the testimony of T.S.’s mother and Detective Fitzgerald that should be resolved by the trial
court. For example, T.S.’s mother testified at trial that Detective Fitzgerald told her she
could mislead Defendant, and Detective Fitzgerald testified that he did not instruct T.S.’s
mother to lie to Defendant. The State suggests that it is not entirely clear from the record that
Defendant did not waive his objection to the evidence for tactical reasons. The State argues
that Defendant’s trial counsel knew that the victims would testify that Defendant had
sexually penetrated them, and in recorded conversation with T.S.’s mother, Defendant
repeatedly denied having penetrated the victims and only admitted having touched the
victims. Finally, we cannot conclude that consideration of the issue is necessary to do
substantial justice or that any error in admitting the recording probably changed the outcome
of the trial. Accordingly, we decline plain error review of the admission of the body wire
recording.



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      Defendant next contends that it was plain error for the trial court to admit his
statements to police because they were not voluntarily given as they were derived from his
statements during the body wire conversation. Essentially, Defendant asserts that his
subsequent statements to investigators were “tainted” by his initial statements to T.S.’s
mother, which were obtained unlawfully through the use of a body wire.

        The State asserts that Defendant’s attempt to “bootstrap” the issue to the body wire
issue means that plain error review is likewise not warranted on this issue. Again, we decline
to review the admission of Defendant’s statements to police under a plain error analysis
because the record is inadequate. The testimony at trial concerning the circumstances of the
interview was cursory. Since we are unable to conclude that it was plain error to admit the
body wire recording, we therefore cannot conclude that Defendant’s subsequent confession
to police was error. We note that even if Defendant’s statements to T.S.’s mother were
obtained illegally, the record is insufficient to determine whether Defendant’s subsequent
confession to police was sufficiently attenuated from the “taint” of the initial confession as
to justify admission of the second confession. See generally State v. Northern, 262 S.W.3d
741, 763-64 (Tenn. 2008).

       Moreover, in his police interview, Defendant admitted only to having touched the
victims, and he repeatedly denied penetrating the victims. Again, it is conceivable that
Defendant’s trial counsel waived objection to the interview for tactical reasons because he
knew the victims would testify as to penetration. Moreover, Detective Fitzgerald testified
that Defendant made the spontaneous comment upon his arrest, “I f****d up,” which
undermines the notion that admission of the body wire recording and Defendant’s subsequent
confession, even if error, probably changed the outcome of the trial.

        Defendant also contends that it was plain error for the trial court to allow nurse
practitioner Sue Ross to testify that the lack of physical injury to M.M. was not inconsistent
with M.M.’s description of the sexual abuse. Defendant asserts that Ms. Ross’s testimony
served to support the credibility of M.M. and to confuse or mislead the jury.

        Ms. Ross was qualified by the trial court to testify as an expert for the State. She
testified that it is unlikely that semen would be recovered during an examination more than
72 hours after an act of sexual abuse. Ms. Ross reviewed a report prepared by another nurse
practitioner who examined M.M. on June 3, 2010. The report stated that M.M. disclosed
several acts of sexual abuse by Defendant. M.M. told the examiner that the last incident
occurred on March 1, 2010. A culposcopic exam did not reveal any injury resulting from
sexual contact. Ms. Ross testified that there was nothing inconsistent with M.M.’s
examination and her disclosures. She testified that it is common for young victims of sexual
abuse to confuse vaginal penetration with penetration of the outer vaginal lips, which she

                                             -7-
referred to as genital penetration. She testified that no finding of injury is consistent with
genital penetration, rather than vaginal penetration, and that even where vaginal penetration
occurs, injuries can heal beyond detection over time. Ms. Ross also testified that M.M.’s
disclosure of anal penetration was not inconsistent with no finding of injury because of the
elastic nature of anal tissue and the tissue’s ability to heal. She testified that it was “even
more rare” to find significant anal injury associated with sexual penetration. She
acknowledged that given the physical findings, she could not give an expert opinion as to
whether “penetration did or did not happen.” Ms. Ross also reviewed a medical report
prepared by the physician who examined T.S. on May 25, 2010, and she testified that there
was nothing in the report that was inconsistent with T.S.’s disclosures.

       Based on the record before us, we cannot conclude that consideration of this issue is
necessary to do substantial justice, that it was not a tactical decision by defense counsel not
to object to the testimony, or that a substantial right of Defendant has been adversely
affected. Accordingly, we decline plain error review of the issue.

       Defendant also contends that it was plain error for the trial court not to sever the
offenses against the two victims. Where the State seeks to consolidate separate indictments,
the State need only show that the offenses are either (1) “parts of a common scheme or plan,”
or (2) that the offenses are “of the same or similar character.” Tenn. R. Crim. P. 8(b).
Consolidation in this case was clearly permissible under Rule 8(b). If a defendant objects
to the consolidation of offenses that would otherwise be permissible under Rule 8(b), the
offenses may not be tried together unless both of the following criteria are met: (1) “the
offenses are parts of a common scheme or plan” and (2) “the evidence of one would be
admissible in the trial of the others.” Tenn. R. Crim. P. 14(b)(1).

       On appeal, Defendant asserts that “had an objection been made, the offenses would
have been required to be severed.” The State characterizes Defendant’s argument as an
argument not that consolidation of the offenses was error, but that Defendant’s trial counsel
was ineffective for not objecting to consolidation or seeking severance of the offenses. We
agree with the State.

        Because defense counsel did not object, the record is entirely undeveloped on this
issue. We cannot conclude that counsel’s failure to object was not a tactical decision. The
State points to examples of defense counsel’s attempts to undermine the credibility of both
victims and to establish that the victims, M.M. in particular, did not like Defendant and had
a motive to fabricate the allegations. We also cannot conclude that failure to sever the
offenses affected a substantial right or that consideration of the issue is “necessary to do
substantial justice.” Adkisson, 899 S.W.2d at 641-42. Therefore, Defendant is not entitled
to plain error review on this issue.

                                              -8-
        Defendant contends that the cumulative effect of the alleged errors at trial entitle him
to a new trial. Because we conclude that none of the Defendant’s allegations merit plain
error review, we further conclude that the Defendant’s due process rights were not violated
by any cumulative effect of the alleged errors.

       Finally, Defendant contends that the evidence at trial, excluding the evidence he
claims was inadmissible and assuming the offenses against both victims had been tried
separately, is insufficient to support his convictions. Defendant then abandons his argument
regarding the sufficiency of the convicting evidence and states in his brief, “[r]ather than
argue against the sufficiency of the evidence as it currently exists, the Appellant would
respectfully submit a new trial should be ordered based on these other errors.” It is well-
established that a reviewing court must consider erroneously admitted evidence in conducting
a review of the sufficiency of the evidence. State v. Longstreet, 619 S.W.2d 97, (Tenn.
1981). However, Defendant has chosen to waive review of this issue.

       Accordingly, we conclude that the judgments of the trial court should be affirmed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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