        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 19, 2010

                STATE OF TENNESSEE v. JACKIE L. DOZIER

              Direct Appeal from the Criminal Court for Macon County
                        No. 06-35 Jane Wheatcraft, Judge




               No. M2009-01515-CCA-R3-CD - Filed October 29, 2010


A Macon County jury convicted the Defendant, Jackie L. Dozier, of three counts of sexual
battery, three counts of incest, and one count of attempted sexual battery. The trial court
imposed a total effective sentence of nine years, ordering the Defendant to serve two years
of his sentence in jail and the rest on probation. In this appeal, the Defendant contends the
trial court erred when it: (1) denied his Motion for Judgment of Acquittal; (2) imposed
consecutive sentencing; and (3) imposed a period of confinement in excess of one year as
part of a sentence of split confinement. After a thorough review of the record and relevant
authorities, we conclude the evidence supports the Defendant’s convictions, but the trial
court erred when it sentenced the Defendant. As such, we affirm the Defendant’s
convictions, but we reverse the trial court’s imposition of consecutive sentencing and order
the Defendant’s sentences to be served concurrently.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Reversed in Part, and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.

G. Frank Lannom and Melanie Bean, Lebanon, Tennessee (at trial); and James O. Martin,
III, Nashville, Tennessee, and Comer Donnell, Lebanon, Tennessee (on appeal); for the
Appellant, Jackie L. Dozier.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Rachel E. Willis, Senior Counsel; Tom P. Thompson, District Attorney General; Tom Swink
and Linda Walls, Assistant District Attorneys General, for the Appellee, State of Tennessee.
                                          OPINION
                                           I. Facts

         This case arises from the Defendant’s sexual assault of his sister. Both were adults
at the time of the Defendant’s conduct. Based upon this conduct, a Macon County grand jury
indicted the Defendant for three counts of rape, three counts of incest, and one count of
attempted rape.

                                           A. Trial

        At the Defendant’s trial, the following evidence was presented:
Officer Steve Evans, Assistant Chief of Police of the Red Boiling Springs Police Department,
received the victim’s first report of the Defendant’s conduct against her. The victim and her
husband, who were personally acquainted with the officer, arrived at the officer’s house on
July 28, 2005, around 9:00 p.m. and appeared very distraught, so the officer calmed them
down and listened to the victim’s account of how the Defendant, her brother, had raped her.
She said that, three days earlier, on July 25, 2008, the Defendant came to her home and gave
her a shot to treat migraine pain she was experiencing. She said she fell asleep due to the
medication but awoke and “caught him in the act of having sex with her, or attempting to
have sex with her.” The victim explained she did not immediately report the Defendant’s
conduct to police because she was embarrassed, given that the Defendant was her brother.
She explained that, that morning, the same day she and her husband later went to Officer
Evans’s house, her brother had returned to her home and tried to rape her again. This
prompted the victim to disclose the abuse to her husband, and the two decided to seek the
officer’s help. Officer Evans explained to the victim that, because she was not physically
examined shortly after the rape, the only evidence against the Defendant would be her story,
which probably would not be enough to support an indictment against the Defendant. He
advised the victim to set up a meeting or a conversation between herself and the Defendant
so that she could covertly record the Defendant admitting he raped her.

        The victim initially resisted the idea of meeting with the Defendant again. However,
when Officer Evans reiterated to the victim the importance of such an admission by the
Defendant, the victim relented. The officer testified that he instructed the victim to “just act
like there’s nothing wrong” next time the Defendant contacted her and to let the Defendant
“think that [he and the victim were] going to get together again.”

       In mid-November, the victim informed the officer that her brother had resumed calling
her. Officer Evans then acquired the victim’s written permission to install a recording device
on her phone and did so the morning of November 21. He recalled that, because the victim
was very distraught the morning he installed the device, he had to encourage her to stay calm

                                               2
in order to avoid alerting the Defendant to the fact their conversation was being recorded.

       The victim called the officer back several hours later to tell him her brother had called
again but that the call had been dropped. The officer returned to the victim’s home, listened
to the tape of their conversation before they were cut off, and determined that more
information was needed to inculpate the Defendant. Officer Evans identified a few topics
toward which the victim should “steer” her brother. In order to ensure the Defendant would
call again while the recording equipment was set up, the officer had earlier told the victim
to plan a time and date to meet with the Defendant when she spoke with him on the phone.
The victim had done so, and, while Officer Evans was still in the victim’s home, the
Defendant called the victim back.

       While the victim and the Defendant resumed their conversation, Officer Evans sat
where he could hear both sides of the conversation. He recognized the Defendant’s voice
because he knew the Defendant from the Defendant’s work as a local emergency medical
technician (“EMT”). The victim frequently looked to the officer for guidance, and he
prompted her to talk more about certain topics in order to elicit certain responses from her
brother. Officer Evans continually had to calm the victim down during the conversation.

       After the victim hung up, the officer collected the tape and placed it into evidence at
the local police precinct. The State introduced the tape and a transcript of its contents into
evidence and played the tape for the jury.

       During the conversation, the Defendant first stated that he wanted to make sure that
the victim was “still on for tomorrow” before he “lined everything up,” apparently referring
to the victim’s agreement (at Officer Evans’s suggestion) to meet her brother so he could
give her drugs and have sex with her. The victim responded by asking the Defendant
whether he’s going to give her Stadol and whether he had given her Stadol in the past. The
Defendant responded that he would give her Stadol and anything else she wanted.

       The victim then asked the Defendant, “Just tell me something. . . . Why do you want
to do this?” and the following exchange ensued:

       [Defendant]:   I don’t know. It’s just the thrill behind it I guess
       [victim]:      I’m your sister Jackie
       [D]:           Well it ain’t like we ain’t done it before
       [v]:           Yeah, but I don’t even remember
       [D]:           Oh you do too. You were wide-awake
       [v]:           I do not
       [D]:           the last two times we done it

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       [v]:           I was not Jackie[.] I don’t even remember
       [D]:           I don’t know what you was on then, but it wasn’t nothing that
                      you was doing cause you was wide awake talking to me just like
                      you are right now.
       [v]:           No Jackie[.] I don’t remember it[.]
                      ....
       [D]:           . . . I’ve already gave you something twice and you’ve told me
                      twice already that you would. And now I gave you something
                      again the other day and you said tomorrow definite.

The victim again denied being awake to recall anything that happened after the Defendant
sedated her, and the Defendant agreed that she may have been too “zonked” to remember
having sex with him: “Now you may not [remember the first two times] because I mean you
was a little bit zonked, but you was telling me what to do.”

        The victim continued insisting to her brother that she did not remember the sexual
encounters and saying that such an encounter was “sick.” He responded that “[i]t wasn’t
sick,” repeatedly saying that the victim “enjoyed it.” The victim continued to deny either
remembering or enjoying anything, and the Defendant responded that she “may be blocking
it out” but that she was “stone sober the very last time.” She denied this, but he insisted that,
at her insistence, he had only “put [her] down” after they had sexual intercourse on July 25,
2005. The call was lost at this point.

       When the Defendant and the victim resumed their conversation the same day,
apparently afraid the victim would back out of having sex with him again, the Defendant
asked, “[Y]ou ain’t having second thoughts are you?” When the victim was unequivocal, the
Defendant pressed her, saying that it was “just pure clean pleasure” because she could not
become pregnant:

       The way . . . I look at it is there ain’t nothing wrong with it if it ain’t harming
       nothing. I meant you can’t get pregnant so there ain’t no harm in nothing[.
       It’s] just pure clean pleasure both ways. And nobody’s gonna know nothing
       cause nobody’s gonna suspect it for one thing, and for the other thing is I’m
       not gonna tell nobody.

The victim then asked her brother how he obtained the medication he used to sedate her, and
he responded “I’ve got my ways.”

      When the victim began questioning the Defendant about exactly how many times he
had sedated her and had sex with her, the Defendant asked the victim whether she was

                                               4
recording him and became increasingly defensive, saying he would “take a polygraph and
back up everything.” He repeatedly told his sister that, though the medication may have
“kicked in beforehand,” she was “in it just as much as” he himself was. He continued to tell
her she had initiated the sexual encounter and that she “asked [him] for it.” When the victim
finally declared, “No. . . . You know what I never consented to do anything sexual with you,”
the Defendant responded, “I don’t guess you–whatever you say.” The two then angrily
disagreed about what happened the day the Defendant locked the victim in her bedroom, and
they quickly ended the call. The victim told Officer Evans this phone conversation was when
she first became aware her brother had sex with her each of the two times he sedated her in
2004.

         Based upon the victim’s statements to police and upon the Defendant’s statements
during his recorded conversation with the victim, police summoned the Defendant to the
police station and informed him of his sister’s allegations. The Defendant denied both
giving his sister a shot and having sexual contact with her. When asked why his sister would
make up such allegations, he said his sister was angry because he would not use his job to
obtain pain medication for her. He claimed that his sister frequently called him, asking him
for pain medication, but that he never complied. When asked whether he ever called his
sister, the Defendant said that he called her “every now and then” to check on her but that
she called him every time she ran out of medication, about once a month, to ask him to obtain
pain medication for her.

        On cross-examination, the officer confirmed that he did not tell the Defendant about
the recording of his conversation with the victim when he initially interviewed the
Defendant. To the best of the officer’s knowledge, he was the first person the victim and her
husband told about the rape. He confirmed that a document presented by the defense
contained a narrative he prepared summarizing the statement the victim gave the night of July
28, 2005. According to the prepared narrative, the victim said her brother had raped her once
and tried to rape her again a few days later when he came to her house, locked the victim and
himself in the bedroom, and, demanding sex, attempted to inject her against her will. The
narrative stated that the victim said the rape occurred sometime in the past “school year,”
which would have spanned between 2004 and 2005. According to the narrative, the victim
said that, on this occasion, her brother administered medicine to her for migraine headache
pain, she passed out and then briefly regained consciousness long enough to see her brother
remove his own pants and then remove her pajama bottoms. The officer explained that he
did not extract a very detailed statement from the victim the night she came to his house
because he needed only enough information to initiate a formal investigation. He said this
was the reason the narrative did not include the exact date of the first incident.

       The officer conducted a second, more formal, interview of the victim on November

                                             5
22, 2005, after he recorded her conversation with the Defendant. On this occasion, the
victim said she had learned from her brother that he had actually raped her on more than one
occasion, and the record of their interview identifies August 2004 and July 2005 as dates
around which the rapes occurred. Officer Evans explained that he initially may have
misunderstood that the victim was reporting several incidents of rape because the victim was
very “traumatized” and upset the night she came to his house. He also said she may have
actually been saying the rape she remembered occurred in July 2005, whereas he wrote that
the rape she remembered at this time occurred in “the last school year.” He reiterated that,
because the victim was distraught, it was very possible that “either one of [them]” got the
dates wrong.

       Officer Evans took the November 22 statement to the local district attorney, who
advised him to get a more precise account of the rapes from the victim. Accordingly, on
November 29, 2005, he interviewed the victim yet again and took an even more “in depth”
statement. During this interview, the victim said that one of the occasions on which her
brother raped her was during July 2004. She remembered that in July 2004, as her brother
began injecting her with drugs, she began to feel herself losing consciousness, which was
strange because the drugs she usually took did not cause her to lose consciousness. She told
her brother to stop, but he injected her with the remainder of the vial anyway. The victim
called her brother again, a month later, in September.

        The officer recalled that, during the November 29 interview, the victim explained why
she did not initially tell him she had been raped more than once: the victim did not learn that
her brother had been raping her each time he knocked her out with drugs until she spoke with
him during their recorded telephone conversation. After her brother told her “she didn’t
mind it the other two times,” the victim asked what he was referring to, and he told her that,
after she passed out from the shots he had given her the previous two times, he had sex with
her each time. Although her brother said they had sex a total of three times, she recalled only
the third and last occasion in July 2005.

       On redirect examination, the officer said that the narrative of the victim’s statement
given on July 28, 2005, was not the normal mechanism for recording a statement. He
explained that he did not actually write down the victim’s statement until the next morning
when he returned to his office and summarized what he recalled from the victim’s account.
He agreed the narrative was not a word-for-word account of her statement, and was not
signed by the victim. He said the victim did, however, review the summary he prepared of
her July 29 statement and signed it to confirm its presentation of the relevant dates. He
confirmed, however, that the victim could not identify the precise date of the first two rapes,
which had occurred well over a year before the time of the statement. He emphasized that
another reason the victim could not recall these dates with clarity is that she did not realize

                                              6
at the time that she had been raped. The victim’s inability to recall the exact dates did not
surprise the officer.

       The victim testified that in 2004 and 2005 she lived in Red Boiling Springs with her
husband of nine years and her daughter from a previous marriage. In 2003, due to frequent
migraines and a heart condition, the victim began receiving disability. She also suffered
from high blood pressure, high cholesterol, and high triglycerides and had taken a total of
nine medications each day since before the events in this case. She described the pain from
her migraines, saying “[i]t just feels like there’s a . . . vice on your head, and I get sick to my
stomach, get nauseated. I can’t stand the light. I can’t stand sound. I don’t want to be
around anybody. Just the least little thing . . . makes my head feel[] like it’s going to
explode.”

       The victim described the evolution of her attempts to deal with her migraine pain:
when she first began experiencing migraines, she tried various home remedies, such as tying
a tube sock around her head. She also had a prescription medication to take at the onset of
a migraine. The victim’s primary care physician originally was Dr. Rutherford in Carthage,
Tennessee, but, because she was unhappy with the high number of medications Dr.
Rutherford was using to treat her, she switched to Dr. Ladd in Red Boiling Springs, who
immediately took her off several medications. At the time of trial, the victim had recently
begun taking a preventative medicine for her migraines.

       When the victim experienced a migraine, if neither the home remedies nor the
medication helped, someone would drive the victim, unable to drive due to the pain and
disorientation, either to her doctor’s office or to the emergency room for an injection, which
she described as the “last resort.” Usually her husband would drive home from his job in
Nashville to take her to get the injection, but, when he was unable, she instead called family
members and friends, including her sister, the Defendant, her son, and a neighbor.

        The victim asked her brother, an EMT for the local ambulance service, on more than
one occasion to transport her to get an injection. When she made one such request in August
2004, her brother agreed and arrived at her house wearing his EMT uniform and carrying a
medium-sized red bag with his medical supplies, such as syringes, gauze, saline, and band-
aids. The victim was lying in her pajamas on her living room couch when the Defendant
arrived. According to the victim, the Defendant told her that taking her to the doctor’s office
was not necessary because he could administer the same medication in her home. The victim
said that, because she trusted her brother, she agreed to let him give her the medication in her
home.

       The Defendant then took a syringe and a vial of fluid from his bag and asked her for

                                                7
two pills of Phenergan, an anti-nausea medication the victim had a prescription for. The
Defendant carried the two pills into the kitchen, out of the victim’s view, turned on the stove,
and told the victim he was mixing the Phenergan with saline. He emerged from the kitchen
with a syringe filled with a white, cloudy liquid and told the victim the syringe carried a drug
that was “just like” what she would receive at her doctor’s office. He explained that the
medication would work more quickly if administered intraveneously, so he tied a band
around her left arm and started an IV port in the arm. The Defendant then inserted the
syringe filled with the white liquid into the IV port and injected the syringe’s contents into
the victim’s arm.

       The victim testified that, as the liquid entered her body, she began feeling strange so
she told her brother to stop:

       I started feeling funny and lightheaded. It was like it was . . . hitting me all at
       once. I was just feeling real funny, and I told him, I said, that’s enough, you
       know, stop, stop, cause . . . what they give me at the doctor’s office don’t make
       you feel like that.

       ....

       This medicine that he gave me, I mean, it just–it hit me like–like when you’re
       at the hospital being put to sleep for surgery. You know, before you ever get
       to start counting, you’re out, and that’s like what this did to me.

The victim explained at trial that, when she received injections at the doctor’s office, the
injections were administered in her buttocks, and they never caused her to feel dizzy or
lightheaded. She typically would return home after receiving the injection, go to sleep, and,
when she awoke later, her migraine would be gone. Despite the victim’s instruction to stop,
her brother continued to inject her with the rest of the liquid. The victim lost consciousness
as he finished injecting the liquid and recalled nothing until she awoke.

       When the victim awoke, she was immediately struck by the fact that, not only was she
now lying on her bed in the bedroom, but she also was lying on her husband’s side of the
bed, which was the side closest to the door. The victim testified that, because she never laid
on this side of the bed, she assumed that she had walked into the room in her sleep and
simply collapsed on the side of the bed closest to the door. Because nothing else struck her
as odd about the occasion, she “didn’t think anything about it.”

      A month later, in September 2004, the victim experienced another migraine, and her
husband again could not return from work to take her to the doctor because he was working

                                               8
“way out past Nashville.” The victim first called her sister, who could not come, so she again
called the Defendant and asked him to take her to the doctor’s office. The Defendant agreed
and soon arrived at her house again dressed in his EMT uniform and carrying his red bag.
As he walked into her home, the Defendant said, “[J]ust let me go ahead and give you
another shot. That way we don’t have to go down to the doctor’s office.” The victim
testified that, because she was “stupid” and because her migraine was so bad that she was
“heaving,” she agreed to let the Defendant inject her again because she “just wanted [her]
migraine to go away” without having to “sit and wait” at the doctor’s office. She explained
that she frequently got nauseated during her migraines and that vomiting usually eased the
nausea. On this occasion, however, she could not vomit but only “heave.”

        As he prepared to inject her again, the Defendant picked up a bag in which the victim
stored her medication and carried it, along with his own red bag, into the kitchen. The victim
again heard the Defendant turn on the stove, and she also heard him using a metal spoon to
crush pills in a metal bowl, though she did not know which pills he was crushing. The
Defendant returned with a syringe filled with a cloudy, white substance similar to the one he
used the month prior, and he again set up an IV port and used it to inject the liquid into the
victim.

        The victim said this injection caused her to feel the same “lightheaded” and “woozy”
feeling she had when her brother had injected her a month earlier. She woke up under
similar circumstances, as well: fully clothed and lying on the wrong side of the bed she
shared with her husband. The victim denied relying on her brother for medication, stating
she was able to get medication from her doctor. She testified that she had been transported
to the emergency room before due to her migraines.

        On July 25, 2005, nearly one year after the first time the Defendant administered drugs
to his sister, the Defendant called his sister to wish her a happy birthday, as the previous day
had been her birthday. The victim recalled that “it just so happened” that the previous night
she had been “up and down” all night because she had been experiencing a bad migraine, so
she told her brother about having been up all night dealing with her migraine. Her brother,
without being asked to do so, said he would come over and take her to the doctor.

       When the Defendant arrived at his sister’s house, he again was dressed in his EMT
uniform and carrying his red bag. The victim was lying on the couch in her pajamas. Instead
of taking her to the doctor, however, the Defendant went into the kitchen with his red bag
and began mixing something on the stove. The liquid in the syringe he emerged carrying this
time, however, was cloudy and colorful rather than white. The Defendant injected the victim
with the syringe as he had the two previous times and she again lost consciousness.



                                               9
        On this third occasion, the victim regained her consciousness several times before her
brother left her house. When she woke up the first time, she was lying on the “opposite” side
of her bed, and her brother was taking her pajama bottoms and underwear off and had already
pulled them down to her ankles. She passed out again but soon woke up again long enough
to see her brother standing beside her and taking off his pants. The victim again passed out,
and when she woke up again, she saw her brother standing at the foot of the bed, with his
back to her, putting his pants back on. She realized her pajama bottoms had been put back
on. The victim testified, “That’s when I realized what had happened.” She was unsure of
exactly what made her certain that the Defendant had raped her, saying that she had a
“feeling,” which she did not know how to describe, that she knew what had happened.


        The victim looked over to her closet, which was open, and thought of the .22 rifle she
stored there. Unable to move her legs, which she described as “jello,” she rolled off the bed
and reached into the closet, grabbing the gun. At this point, her brother turned around and
tried to grab her arm, but she pointed the gun at him and told him to “get out,” and then the
victim passed out again. The victim testified that, when she came to again approximately an
hour and a half later, she realized “there was semen down there around my private area.” She
said the semen was on her inner thigh area, in the crease of her leg, and was partially dry but
some remained “gooey.”

       The victim began crying and, though her legs were still “wobbly,” she went and
showered to clean the semen from her leg. She explained she showered because of “what
her brother had done to [her],” and said, “That was so sick. I was so ashamed. I couldn’t
believe it.” The victim pulled all the covers from the bed and threw them away.

        The victim explained that she did not immediately report the rape to police due to her
extreme embarrassment, saying: “That was my brother. How do you tell something like that?
It’s hard enough telling it right now.” The Defendant next attempted to contact her two days
after this incident, on the morning of July 27, but the victim refused to answer his calls.
After the victim refused to answer, the Defendant came to her house, but she stayed where
she was, lying in bed with her daughter Lindsey, who had gotten in bed with her mother after
her step-father left for work. As the Defendant knocked, Lindsey urged her mother to answer
the door, but the victim told her daughter, “We’re not going to open this door this morning.
We’re not going to talk to anybody this morning . . . .” The Defendant left, but called her the
next day, on July 28. When she again refused to answer, he came again to her house, and her
daughter, who knew nothing of the situation between the two adults, let her uncle into the
house.

       According to the victim, as the Defendant entered the house, he said he wanted to

                                              10
“talk,” and, because she felt sure her brother would restrain himself in front of her daughter
Lindsey, she said, “Well, talk.” The Defendant, however, grabbed the victim by the arm,
pushed her into her bedroom, and locked the door behind him, saying that he wanted to talk
“in private.” The Defendant then sat down on the bed and pulled the victim down into his
lap, wrapping his arms around her body to restrain her. The victim said that, in the process
of doing this, the Defendant stabbed her buttocks with a syringe. The victim immediately
knocked the syringe out and threw it at the Defendant. She testified she was unsure whether
the Defendant was able to inject her with any of the syringe’s contents before she knocked
the syringe out. The victim recalled that, as this was all going on, her brother was telling her
that he wanted sex. When the victim responded that “it was sick, it was perverted,” the
Defendant said that “sex was okay” and that she “didn’t mind it.” The victim did not know
what the Defendant meant by this.

       During this entire exchange, the victim’s daughter Lindsey was beating on the
bedroom door, wanting to know what was happening and to be allowed inside. The
Defendant told Lindsey multiple times to “shut up and sit down.” The victim fought to free
herself from her brother’s grip so she could open the door because she believed the
Defendant would stop if Lindsey was watching. The victim finally freed herself, unlocked
the door, and told the Defendant “to get the [hell] out of [her] house.” The Defendant left.


       When the victim’s husband returned home from work, she told him what had
transpired between her and her brother. She confirmed that they went that night to Officer
Evans’s house to report the rape. She recalled being nervous, upset, and ashamed. She did
not submit a written statement about her brother’s conduct, and she testified that she had
never seen the narrative Officer Evans prepared summarizing her disclosure to him. The
officer discussed installing a recording device on their phone and told them to call if the
Defendant contacted her again.

       After July 28, the day the Defendant last came to the victim’s house, the Defendant
did not contact the victim for several months. In November, however, he began calling the
victim again. After the victim informed Officer Evans that the Defendant had called, she and
her husband executed a waiver allowing a recording device to be installed on their phone,
and the device was installed. Officer Evans instructed the victim to tell the Defendant she
would meet him again in order to elicit an admission from the Defendant about what he had
done to her. The victim said that her brother called again the day after police installed the
device. The call was cut off mid-way through their conversation, and the victim used this
break in the conversation to call Officer Evans to inform him of the Defendant’s call. The
officer came to her house, and shortly thereafter the Defendant called the victim back. As
the two spoke, the officer “sort of [used] sign language” to tell the victim what to say,

                                              11
generally encouraging her to get the Defendant to admit to raping her.

        The transcript of the phone call reflected that the Defendant, at various points, referred
to having given the victim “something twice” and “again the other day” and to the victim
having agreed for him “to give [her] something again” “tomorrow definite[ly].” The victim
explained that she had not seen the Defendant since July 28 and that he was referring to the
fact that she had agreed to let him inject her again, though he did not realize she did this in
order to elicit an incriminating response from him. In another portion of the transcript, the
Defendant mentioned that the victim “called [him] and wanted [him] to come out and help
[her].” The victim explained that he was referring to a phone call she made to him, at Officer
Evans’s behest, telling the Defendant she wanted to meet him “to get [the Defendant] led up
to this so he wouldn’t think anything about [the set-up].”

        Several days after the recorded conversation, the victim went to the local police
station and gave a written statement, which was introduced into evidence. Reviewing a copy
of this statement, which contained several dates that had been crossed out and changed to
reflect different dates, the victim confirmed she authorized these changes to her statement.
Viewing a second statement introduced by the State, the victim confirmed it was a copy of
a “more detailed” statement she gave several days after her first statement.

        Addressing her history with prescription drugs, the victim said that “to her
knowledge” no doctor or hospital had ever denied her medication. She said that, when she
visited a doctor to seek treatment for her migraines, either she or her husband, who usually
“did the talking,” would tell the doctor that Stadol injections usually eased her migraine pain
well. She denied ever “demanding” Stadol from any doctor. She said that, although she may
not have received the exact medication she requested when she visited a doctor, she was
always able to obtain some form of medication for her migraine.

      The victim said she never asked her brother to come to her house to inject her with
medication. She emphatically stated she never agreed to have sex with her brother in
exchange for drugs. The victim explained she would never have sex with anyone for drugs
because she could get any medication she needed from a doctor or, in the worst case scenario,
an emergency room. She said, “There’s no sense in me having to do anything like that to get
medicine for my migraines.”

       On cross-examination, the victim agreed she could not remember the exact dates she
believed her brother raped her in August and September of 2004. She said that she had
received injections of Nubain, Stadol, and Demeral in the past to treat her migraines but that
she did not know what medication the Defendant had administered to her in 2004 and 2005.
She reiterated that the injections her brother gave her caused a “different” feeling from those

                                               12
caused by the medications she had previously used. The victim was unsure of the quantities
she customarily received of her prescribed medications, but knew that most of the
medications were paired with Phenergan to balance the nauseating effects of the painkillers.
She denied ever visiting a doctor and specifically requesting a certain quantity of any
medication.

       The victim agreed that she had received injections from the following sources: Dr.
Ladd; two nurse practitioners named Ms. Woodard and Ms. Mary Todd Linville; staff at the
Carthage General Emergency Room; and staff at Trousdale Medical Center Emergency
Room. The victim acknowledged that she and Dr. Ladd “had some words” in August 2004
about her use of medication.

        The defense introduced several of the victim’s medical records. The first document
reflected that she received an injection of Nubain and Phenergan from Dr. Ladd on August
2, 2004. Another document from Dr. Ladd’s office, dated August 3, 2004, stated that the
victim called back five hours after her August 2 injection, complaining of a migraine
headache and requesting another injection. The document also contains a notation that “[the
patient] is reaching addiction.” The victim said she was not “going to deny” having asked
for injections two days in a row because her migraines often last three to five days, and she
sometimes, though “seldom[ly],” asks for more than one injection.

        The victim confirmed she could only narrow the day on which her brother first raped
her to sometime between August 8 and 14. The victim did not know why her brother drove
her to the doctor on August 19, 2004, rather than injecting her at home as he had done the
week before. She again testified that, when she visited a doctor, her husband would identify
what medication usually worked, and, if he was not present, she herself would identify the
medication.

        The victim’s medical records showed that she, accompanied by her husband, made the
following series of doctor visits, receiving a total of nine shots in thirty-two days: On
September 2, 2004, she received a shot of Stadol and Phenergan from Dr. Ladd. On the
morning of September 7, 2004, she visited Dr. Ladd’s office again but, finding his office too
“backed up,” she went to nurse practitioner Mary Todd Linville in Lafayette, Tennessee.
Later that day, she then went to the Macon County Emergency Room where she received
medications including Darvocet. Two hours after leaving the Macon County Emergency
Room, she went to the Trousdale Medical Center and asked for Stadol. The record from her
visit to the Macon County Emergency Room contains a notation that the victim did not
exhibit an obvious aversion to light or sound, a common symptom of a migraine. The victim
returned to Dr. Ladd’s office on September 8, 2004, and received another shot of Stadol and
Phenergan. On September 10, 2004, the victim again went to Dr. Ladd and received a shot

                                             13
of Stadol and Phenergan.

       The next week, the week of the alleged second rape, the victim received a Stadol and
Phenergan shot from Dr. Ladd on September 13, 2004, and again on September 15, 2004.
On September 21, 2004, the Defendant drove the victim to Dr. Ladd’s office, where she
again received Stradol and Phenergan. She returned to Dr. Ladd’s office again on September
22, 2004, and September 24, 2004, and each time received Stradol and Phenergan injections.
On October 4, 2004, the Defendant again drove the victim to Dr. Ladd’s office, where she
received another Stradol and Phenergan injection. Later in the day, the victim was admitted
to Tennessee Christian Medical Center (“TCMC”).

       According to the medical records of her visit to TCMC, Dr. Ladd sent the victim to
TCMC to be evaluated for back pain and a history of urinary tract infections. According to
the records, the victim requested Stradol, saying it was the only medication that relieved her
migraine pain. The record states, “Patient seems to be in denial in regards to this problem.”
Although the person preparing the medical record attempted to confront the victim about her
use of prescription drugs, the victim acknowledged that she took too much medication but
insisted that she would continue to take each medication because a physician had thought
each medication was necessary for her treatment. The record recommended that the victim
seek outpatient treatment for her use of prescription drugs.

        About two weeks later, on October 22, 2004, Dr. Ladd again sent the victim to
TCMC, and the record of that visit identified the reason for admission as “headache,
overdose.” According to the hospital record, the victim had arrived at Dr. Ladd’s office
earlier in the day “intoxicated” and passed out. She requested a shot of Nubain and
Phenergan. After Dr. Ladd sent her to TCMC the victim “ramble[d] on and on”and said that
if her headache were treated, “[her] heart would be okay,” and she made several other
“blatant attempts” to obtain drugs. According to the records, the victim denied that she had
a prescription drug addiction and refused to be treated for addiction. Another document from
this visit notes the “clinical impression” that the victim was exhibiting “drug-seeking
behavior.”

        The victim acknowledged that, three days after her second visit to TCMC, she had a
“falling out” with Dr. Ladd. She identified a disagreement with a woman named “Charla”
as the cause of this falling out, saying she was unaware whether the doctor refused to see her
again because of her prescription drug use. Despite Dr. Ladd having informed her he would
no longer treat her, the victim again came to his office on October 28, 2004, requesting
Stadol nasal spray to treat her migraine. The victim testified that she has used Stadol Nasal
Spray, vicodin, percocet, hydrocodone, demerol, and darvocet to treat her headaches. The
record from this visit indicated that, on this day, she was seen by nurse practitioner “Dr.

                                             14
Woodard,” who gave the victim only Phenergan, not Stadol, and talked with the victim about
obtaining “narcotic therapy.” The next day, October 29, 2004, the victim returned to Dr.
Ladd’s office and was seen by nurse practitioner Mary Todd Linville. The record from this
visit indicated that the victim again requested Stadol nasal spray, and the nurse called Dr.
Ladd three times to request permission to give the victim Stadol. After receiving no response
from Dr. Ladd, the nurse refused to prescribe the victim Stadol and instead sent her home
with a prescription for Phenergan.

       The night of October 29, 2004, the victim visited Trousdale County Medical Center,
complaining of headaches and nausea and requesting Stadol Nasal Spray. She did not
disclose her recent failed attempts to receive Stadol from Dr. Ladd’s office.

       The victim agreed that it was “possible” that, according to her medical records, she
received sixty-five shots in a fifty-two week period from 2004 to 2005 and thirty-five shots
in 2005 alone.

       The victim repeated her testimony that the shot her brother administered to her in
August 2004 felt “strange” and “hit [her] faster than and different than an ordinary shot in
the rear.” The victim acknowledged that she allowed her brother to inject her again in
September 2004, even though the previous shot had been so different from what she expected
and she woke up in a different room when the shot wore off. She emphasized that she did
not ask the Defendant to give her the shot and that she only agreed to let him inject her after
he called her and offered to do so. She insisted that she did not remember what happened
while she was unconscious the first two times her brother administered drugs to her in 2004.
Consequently, the drugs’ effect was the only thing that left an impression upon her; she
suspected nothing of her brother at the time.

        The victim agreed that the first written statement she submitted to police about her
brother’s conduct stated that he injected her the second week of August 2004, the second
week of September 2004, and the third week of July 2005. She said that, when police
requested a more detailed statement, she told them that the third incident occurred two days
after the third week of May 2005, contrary to her first statement. Shortly thereafter, the
victim again changed her statement, saying the third incident actually occurred during the
third week of July 2005. The victim testified that she was never “unsure” of the dates of
each incident, explaining that the errors were the result of “a misunderstanding when the first
statement was written or typed out.”

       Reviewing the November 29, 2005, statement Officer Evans helped her prepare, she
agreed that she did not mention that the substance her brother administered to her in August
2004 was “cloudy,” but she explained that the officer never asked her about the substance’s

                                              15
appearance. She said, however, that she told him the substance had an effect different from
any other drug she had taken, though the officer did not include this in the November 29
statement. She agreed that neither her November 22 nor her November 29 statement
mentioned that her groin area contained semen after the July 25 incident, but she explained
the semen could not have been collected because she had already showered. The victim
testified that she tried to give Officer Evans all the important information he needed but
explained, “This is a very embarrassing, disgusting thing.”

        The victim agreed that, as her November 29 statement sets forth, the Defendant had
given her injections a few times before August 2004. She explained that she had not changed
out of her pajamas when the Defendant arrived to take her to the doctor because she normally
wore her pajamas to the doctor’s office. The victim recalled that, after the Defendant forced
her into her bedroom on July 28, the two engaged in a heated discussion, which culminated
in her raising her voice and calling him “sick” and “perverted.” She said her daughter
Lindsey was standing by her bedroom door when the Defendant picked up the syringe with
which he had tried to inject her, and left the house.

        On re-direct examination, the victim reiterated that she first learned of the first two
rapes on July 27, 2005, when the Defendant cornered her in her bedroom, insisting she had
“not minded” the first two times they had sex. She explained that, when he told her this, she
realized he could be telling the truth because, on each of the two prior occasions, she had
fallen asleep and awoke on her bed, just as she did in July 2005 when she found her brother
removing her pants. She said that, whereas she had remained unconscious for approximately
an hour and a half during the first two incidents in 2004, she drifted in and out of
consciousness during the July 2005 incident. The victim emphasized that, when she allowed
her brother to take her to the doctor in August, September, and October of 2004, she “had no
idea” he had raped her while she was unconscious in August and September.

        The victim said that, in addition to Dr. Ladd, several nurse practitioners treated her
when she went to Dr. Ladd’s officer for treatment. The victim typically spent only two to
four minutes with each physician. She was taking daily doses of Topomax and
Nitroglycerine at the time she was Dr. Ladd’s patient, and both these medications caused her
to feel drowsy and impaired her coordination.

       The victim estimated she had received five Stadol injections before her brother
injected her in August 2004. She said none of these had ever affected her in the way her
brother’s injections affected her.

       On re-cross examination, the victim agreed that, when her brother informed her on
July 28, 2005, that they had sexual intercourse two times before July 25, 2005, he told her

                                              16
the intercourse had been consensual.

       The victim’s daughter, L.P.1 , who was eleven in July 2005, confirmed she was home
when her uncle, the Defendant, came to the home she shared with her mother and step-father
in Red Boiling Springs. She recalled that, as she was lying on the couch on July 28, 2005,
she heard a knock at the door. She answered the door and found her uncle, who was wearing
his EMT uniform. The Defendant entered, saying, “[W]here’s mom, I’ve got to talk to her.”
At that point, the victim emerged from her room, and the Defendant “grabbed her arm and
pulled her into the bedroom [and] shut the door.” L.P. heard the lock turn on the other side
of the door, and she returned to the couch.

        Soon, the victim’s daughter heard her mother scream, “[L]et me go and get out,” three
to four times. At that moment her stepfather called, and she told him her mother was talking
with the Defendant, so her stepfather said to have the victim call him back. A few minutes
later, L.P. heard her mother again say, “[L]et me go and get out.” She then heard her mother
trying to unlock the door. She explained that she knew someone was trying to unlock the
door because, due to the small size of the bedroom, the lock “tripp[ed]” occasionally.
Someone eventually unlocked the door, and the Defendant emerged from the room. As he
walked toward the front door, he stopped briefly in front of the television and said, “[T]his
ain’t a big deal.” The victim again told the Defendant to “get out,” and after the Defendant
left, her mother locked the door behind him. L.P. did not know what the Defendant was
referring to at the time.

        On cross-examination, L.P. said that nothing initially alarmed her when her uncle
arrived to her house on July 28. She explained that she was not scared when her uncle
grabbed her mother by the wrist and took her into her bedroom because she “loved [her]
family and didn’t think [anything about it].” She agreed that, had she believed her mother
was in danger, she would have tried to help her mother. Although L.P. could not make out
much of her mother and uncle’s conversation over the sound of the television, she clearly
heard her mother say “let me go and get out” three or four times, which scared L.P. L.P. did
not hear her mother call the Defendant “sick” or “perverted.” As the Defendant walked out
of the house, L.P. was “shocked” to see that he was carrying a syringe. Her stepfather called
right as the Defendant was leaving, and she told him that her uncle had been in the bedroom
with her mother.

      L.P. had never seen her mother fight with her uncle as they did on July 25. She also
had never seen them together alone in the bedroom. She explained that when her uncle had
come to the house previously, she was usually outside playing.

       1
           In the interest of privacy, we will refer to the victim’s daughter as “L.P.”

                                                    17
       The defense moved for a judgment of acquittal, which the trial court denied.

        Dr. Robert Ladd, a family practitioner, testified that in 2004 and 2005 he practiced in
Portland, Lafayette, and Red Boiling Springs, Tennessee, but he had since retired. He
confirmed that he employed nurse practitioners Mary Linville and Edna Woodard in his
practice. Dr. Ladd recalled treating the victim in 2004 and 2005, saying her primary
complaint was headaches. He confirmed that he usually treated the victim by giving her
injections of either Nubain and Phenergan or Stadol and Phenergan. He explained that
Nubain and Stadol are similar narcotic substances.

       Dr. Ladd first confirmed that TennCare had given his office “prior approval” to
prescribe the victim Stadol. He explained that TennCare paid for the victim’s medications.
The doctor confirmed that a record dated October 22, 2004, prepared by a nurse practitioner
in his practice, reflected that the victim arrived at his office on that day “intoxicated,”
“arrousable but confused, staggering,” and fell asleep in the waiting room. The victim
complained of headaches. The “treatment” section of the record reads, “[C]alled crisis team
judge, brother and sister included, drug task force, called Dr. Ladd for involuntary help.
They wanted to admit her for a twenty-four hour admit.” Attached to the record was a
document from TCMC reflecting that the victim came to that facility on the same day,
complaining of head and chest pain but refused “against medical advice” to be admitted to
the psychiatric unit of TCMC. The document identified the victim as a drug addict.

        The doctor reviewed a second record from his office dated October 22, 2004, and
confirmed it reflected that the victim came to his office on that day suffering from “overdose,
headache” and then was taken from his office by ambulance. A third record, dated October
28, 2004, prepared by Nurse Woodard, reflected that the victim came to his office,
complained of a headache, and asked for Stadol Nasal Spray and Phenergan, which she was
refused. A fourth record, prepared by Nurse Linville, reflected that the victim returned to his
office the next day and again asked for Stadol Nasal Spray, which she was again refused.
The doctor confirmed that a record from Trousdale Medical Center showed that the victim
arrived there the next day, requested Stadol Nasal Spray, which Trousdale Medical Center
dispensed to her. According to the document, the victim did not disclose that Dr. Ladd’s
office had refused to provide her with Stadol Nasal Spray.

        Dr. Ladd testified that, based upon the number of trips the victim made within a short
time period, he concluded that the victim was addicted to Stadol. The doctor said that, based
upon this conclusion, he sent the victim a letter informing her that his office would no longer
treat her.

       On cross-examination, the doctor confirmed that his license to practice medicine was

                                              18
suspended for one month and that his DEA certificate was suspended for six months. He
confirmed that in 2006, after coming under investigation by “the board,” he agreed to
surrender his license.

       The doctor confirmed that he did not see the victim when she arrived at his office on
October 22, 2004, and could not, therefore, attest to whether she arrived “intoxicated” and
“confused, staggering,” as the record indicates. He confirmed that, at the time he treated the
victim, she was taking Lortab, Phenergan, and “a number” of medications for her heart
condition. He said these medications could make her dizzy but was not aware of any of these
medications causing confusion.

       On re-direct examination, the doctor explained that the determination of whether a
patient is a drug addict is difficult but that requesting medication “too frequently” is a strong
indicator of drug addiction.

         Tracy Dozier, sister of both the victim and the Defendant, testified that in 2004 and
2005 she lived down the road, in visible distance, from the victim in Red Boiling Springs.
The victim had also enlisted her help in driving her to Dr. Ladd’s office to seek Stadol shots.
Dozier testified that she reached a point, however, at which she grew “uncomfortable” with
driving the victim to get these shots. Her discomfort was due to the fact that she was not sure
her sister needed every shot and the fact that, after she dropped her sister off after such a
visit, she believed her sister resumed driving despite being impaired by the medication. Also
transporting the victim was an inconvenience to Dozier, who was living with and caring for
their elderly mother at the time.

       Though Dozier testified that “sometimes” her sister appeared to legitimately need
medication, she said that at other times her sister would “cut up” on the way to Dr. Ladd’s
office but “act like she just couldn’t hardly go” when she entered Dr. Ladd’s office. Dozier
informed her sister she would no longer transport her, explaining that she needed to care for
their mother and that, if the victim was truly sick, she needed to admit herself to a hospital.
After this, the victim stopped calling Dozier to ask her to take her to get shots.

       Dozier testified that, at this time, her sister had “slim” credibility in the community.
She said that, at one point, she witnessed her sister lie to the Department of Children’s
Services (“DCS”) when DCS came to the victim’s house to investigate a complaint. They
came to her porch and requested she show them the medication she was taking, and she
returned with a bag of medicine that did not contain the painkillers she used.

       On cross-examination, Dozier confirmed she was not present when her brother
injected her sister.

                                               19
       On redirect examination, Dozier testified that her sister said “there would be hell to
pay for the person that called [DCS] on her.” According to Dozier, the Defendant filed the
complaint with DCS.

        Patrick Warren, a team leader/supervisor with DCS, testified that in October 2004 and
again in January 2006 someone filed a complaint about the victim’s drug use to DCS. Each
time, DCS investigated and concluded that the complaint was “unfounded.” He said that,
while DCS cannot disclose the identity of the source of such a complaint, he could disclose
that the Defendant was not the person who made the complaints against the victim.

       On cross-examination, at defense counsel’s insistence, the trial court ordered Agent
Warren to disclose the source of the complaints against the victim. The agent identified
L.P.’s biological father as the source of the complaints. He confirmed the victim was not
aware of the source of the complaints before this in-court disclosure. He said that, because
he was not present during the investigation of either complaint, he did not know what steps
agents took to investigate the complaints.

       Based on this evidence, the jury found the Defendant guilty of three counts of sexual
battery, three counts of incest, and one count of attempted sexual battery.

                                            B. Sentencing

        According to the Defendant’s presentence investigation report, the Defendant, forty-
three at the time of sentencing, was a certified EMT and had seven children. His current
wife, whom he married in 2006, became pregnant with his fourth child, their first of three,
in 2001 when she was seventeen and he was thirty-six years old. The Defendant was
employed by the Macon County Ambulance Service as an EMT from 1998 to 2005, when
he was terminated due to the allegations in this case. He then began working for Pride Care
Emergency Medical Services but was fired from this job after being convicted in this case.
The Defendant had no criminal convictions, though he was charged with sexual assault in
1998 and with theft in 2001. Also, the Defendant was charged with passing a worthless
check seven times, but he “paid off” each check in the form of a cash bond. According to
a psychosexual evaluation of the Defendant, which was included in the presentence report,
the Defendant presented only a “low risk” of re-offending. The report indicated that the
Defendant’s daughter, B.D.2 , reported to DCS that the Defendant, who had full custody of
her at the time, sexually abused her. B.D. subsequently withdrew her allegations, but she
continued to live with her mother.



       2
           In the interest of privacy, we will refer to the Defendant’s daughter as “B.D.”

                                                   20
       The presentence report included a victim impact statement from the victim. In this
statement, the victim said that the Defendant had violated her trust and that she felt ashamed
due to the nature of his crime against her. She claimed the Defendant had been speaking
badly about her in their community. She said she was afraid of what the Defendant would
do to her daughter in retaliation for reporting his conduct. The victim said that her sister and
her step-father have refused to speak to her since she reported her brother’s conduct. She
said that, since pressing charges against the Defendant, she has isolated herself in her home,
only leaving to buy groceries or visit the doctor. She said that, since the incidents in this
case, she has suffered from depression and has had difficulty being intimate with her
husband.

       The victim testified at the sentencing hearing, describing the way her brother’s
conduct affected their family. She reiterated much of what was in her victim impact
statement, explaining further that she stayed at home because everyone in her small town
knew about what happened between her and her brother. She said, “It’s just embarrassing.
I know I’m the talk. Everybody is talking about me.” The victim believed the Defendant and
his family were spreading rumors about her drug use as well.

       The victim recalled that, though she began experiencing depression when her
grandmother died in 2003, her depression worsened after the rapes. As a result, she began
receiving specialized counseling and began taking a higher dose of her anti-depressant. The
victim stopped seeing her counselor about a year before sentencing because the counselor
was transferred, and the victim did not want to tell her story to another counselor. However,
at the time of sentencing, the counselor had begun seeing patients in a more accessible
location, so the victim had arranged to resume seeing her.

       On cross-examination, the victim explained that, because she was raised by her
grandparents, she did not live with her brother, the Defendant, when she was a small child,
but she said she had known the Defendant all her life and lived with him when she was older.
She said she had grown to trust her brother in some areas, though she alluded to not trusting
him in other areas. She said that, though she occasionally asked him to drive her to the
doctor, he frequently called her to ask for various favors, such as cutting his family’s hair and
lending him money. She said that, since she reported the rapes, her brother had not attempted
to contact her or anyone in her immediate family.

       The victim expressed her belief that the Defendant would not stop offending until he
was kept “completely away from people in general” and received treatment from a specialist.
She elaborated:

              I’m not the kind of person [who] wishes something bad on anybody.

                                               21
      I’m a Christian, and it doesn’t–it matters, but yet it doesn’t matter. I mean,
      deep down in my heart, that is my brother. That’s my blood brother, and down
      in my heart, regardless of what he did, I still love him because the Lord tells
      me I’m supposed to love him.

             I want him to get help because he has a problem, he is sick. And
      something that I worry about a lot is he’s going to do the wrong thing to the
      wrong person and somebody is going to end up killing him and then his
      children aren’t going to have a father at all.

             At least if he’s behind bars to where he can get this out of his system
      and in a few years possibly get out and then be a father to them, that’s one
      thing. But if he does this to somebody, the wrong person and they kill him,
      then his kids don’t have anybody.

             So, yes, I want him to get help, but I feel like he needs to be put away
      and get help, because if you don’t like I said, and he messes with the wrong
      person, he’s going to end up dead, and then like I said, those kids aren’t going
      to have anybody.

              ....

             [I]t’s not just me that he’s done this to. There’s plenty more out there
      that he’s done this to that hasn’t come forward, and maybe I shouldn’t bring
      that up, but there’s plenty more. And if he gets away with this scott free, it’s
      going to happen again, and again, and again, and then he’s going to end up
      dead, and I’ve got nieces and nephews out there that I’m concerned about.

       William Henry Moss testified that he had known the Defendant for about thirty years
and had worked with the Defendant at the Macon County Ambulance Service for seventeen
of those years. The Defendant and Moss were partners for three of these years, and Moss
said the Defendant was a dependable, rule-abiding employee who always showed up during
the time of an emergency.

       Moss, who lived about a mile from the Defendant at the time of sentencing, said he
was comfortable with the Defendant being released into the community on a term of
probation. Moss believed the Defendant would comply with the terms of any probation
sentence he received. Moss knew the Defendant to always work to support his family and
knew of no other source of income his family would have without the Defendant to provide
financial support.

                                            22
       On cross-examination, Moss said that, during the three-year period he was the
Defendant’s partner, they worked twenty-four hour shifts and then were off for forty-eight
hours. Moss said he met the Defendant when the Defendant was a juvenile and he himself
was working as a police officer. He recalled that, occasionally, when the Defendant “messed
up or something like that,” he would “go out and talk to him about it.” Moss did not
remember every such incident but recalled that, one time, he had to talk to the Defendant
about breaking bottles in the road. He recalled that, on these occasions, the Defendant
listened to him and thanked him.

       Moss said he occasionally paid social visits to the Defendant where he lived with his
family, sometimes dropping in to visit his children, other times to have dinner together.
Moss said he did not recall the Defendant ever speaking to him about his sexual encounters.
He said that, though he knew the Defendant had been convicted of sexual battery and incest,
he believed the Defendant should be allowed to return to his job as an EMT.

       Randy Carter, an EMT with Macon County Ambulance Service, testified that he lived
one house down from the Defendant and worked with him in the Ambulance Service for
several years. He testified that the Defendant had a good work ethic, always trying his best
and making himself available to work overtime. Carter said that, although he was aware of
the Defendant’s crimes, he believed the Defendant would comply with the terms of any
probation sentence he received. He testified that he had observed the Defendant play with
his family in their front yard and go on camping and boating trips with his family. He said
that when his own children had been sick, the Defendant called to check on them. Carter
said the Defendant’s wife did not work and would have no source of financial support if the
Defendant were not allowed to work to support her and their children.

       On cross-examination, Carter said he was aware of the circumstances surrounding the
Defendant’s crimes, namely that he had injected his sister with Stadol to “knock her out.”
He testified that neither he nor the Defendant are authorized to give injections of Stadol or
any other narcotic substance.

       Jackie Barlow testified that he had known the Defendant for ten years through his job
with the Macon County Ambulance Service. He said that he observed the Defendant “just
about every day” and said the Defendant was “good with the patients” and “real concerned
about his patients.” He said the Defendant was an “extremely concerned” parent and that he
had always supported his children. He recalled that, after the Defendant lost his jobs with
the Macon and Wilson County Ambulance Services because of the crimes in this case, he
helped the Defendant get a private-sector job in Nashville. He said he believed the
Defendant would comply with any term of probation he received.



                                             23
       On cross-examination, Barlow said he was not aware that one of the Defendant’s
daughters, B.D., lived with her mother rather than with the Defendant. He said that, though
he occasionally saw the Defendant around town, he did not visit his home on a regular basis.
Though Barlow knew of the Defendant’s convictions, he was not aware that the Defendant
told his sister their sexual encounter was “good clean fun” that could not result in a
pregnancy. He also was not aware that the Defendant’s ex-wife paid child support to him.

        Brian Dozier, the Defendant’s seventeen-year-old son, testified that, when he was in
grade school, his parents divorced, and he and his three siblings went to live with their father,
the Defendant. Brian said his father had always financially supported him and attended his
football practices and games. At sentencing, Brian lived with his father, his step-mother, his
two brothers, and the three children his father has with Brian’s step-mother. On cross-
examination, Brian confirmed that his mother paid child support to his father. He also said
that his step-mother, though she is not disabled, did not work but instead stayed home to care
for his brothers and sisters.

       At the conclusion of the sentencing hearing, the trial court imposed a total effective
sentence of nine years and ordered the Defendant to serve two years in confinement and the
rest on probation. The court also ordered the Defendant to register as a sex offender, to be
monitored by a GPS device, to maintain full employment, and to undergo another
psychosexual evaluation.

                                         II. Analysis

       On appeal, the Defendant contends the trial court erred when it: (1) denied his Motion
for Judgment of Acquittal; (2) imposed consecutive sentencing; and (3) imposed a period of
confinement in excess of one year as part of a sentence of split confinement.

                               A. Sufficiency of the Evidence

       The Defendant argues the trial court erred when it denied his Motion for Judgment
of Acquittal because the evidence did not corroborate the Defendant’s admissions, which he
argues, were largely the basis for his convictions. He says that the only corroborative
evidence was the victim’s testimony that she found semen inside her thigh and that this
testimony only established sexual battery, not incest, which requires penetration. The State
responds that the evidence necessary to corroborate such an admission need only “tend to
connect” the Defendant to the crime at issue, and, as such, the evidence is more than
sufficient to corroborate the Defendant’s admission and thereby support his convictions.

       Rule 29 of the Tennessee Rules of Criminal Procedure provides, in relevant part, as

                                               24
follows:

       The court on motion of a defendant or of its own motion shall order the entry
       of judgment of acquittal of one or more offenses charged in the indictment or
       information after the evidence on either side is closed if the evidence is
       insufficient to sustain a conviction of such offense or offenses.

Tenn. R.Crim. P. 29(a). This rule empowers the trial judge to direct a judgment of acquittal
when the evidence is insufficient to warrant a conviction either at the time the State rests or
at the conclusion of all the evidence. See generally Overturf v. State, 571 S.W.2d 837
(Tenn.1978). By presenting evidence, however, a defendant generally waives his ability to
appeal a trial court’s denial of his motion for a judgment of acquittal. Finch v. State, 226
S.W.3d 307, 317 (Tenn. 2007) (declining to revisit State v. Mathis, 590 S.W.2d 449, 453
(Tenn. 1979)).

       In this case, the trial court denied the Motion for Judgment of Acquittal the Defendant
raised at the close of the State’s proof. Following this denial, the Defendant presented
evidence. The Defendant, therefore, waived his right to appeal the denial of his Motion for
Judgment of Acquittal. See Finch, 226 S.W.3d at 317. The State, however, treats the
Defendant’s objection on appeal as an objection to the sufficiency of the evidence supporting
his convictions. We will likewise treat his claim as one challenging the overall sufficiency
of the evidence, and in doing so, we will address all evidence, not just that brought during
the State’s case-in-chief.

        The standard by which the trial court determines a motion for judgment of acquittal
is, in essence, the same standard which applies on appeal in determining the sufficiency of
the evidence after a conviction. State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App.
1998); State v. Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App. 1994). When an accused
challenges the sufficiency of the evidence, this Court’s standard of review is whether, after
considering the evidence in the light most favorable to the State, “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e), State v. Goodwin, 143
S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This
rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App. 1999). A conviction may be based entirely on circumstantial
evidence where the facts are “so clearly interwoven and connected that the finger of guilt is
pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d
561, 569 (Tenn. 1993). The jury decides the weight to be given to circumstantial evidence,
and “[t]he inferences to be drawn from such evidence, and the extent to which the

                                              25
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 212 Tenn. 464, 370
S.W.2d 523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable inferences
which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith,
24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).


        It is a well-established principle of law in this state that a conviction cannot be
founded solely upon a defendant’s confession, and that, in order to establish the “corpus
delicti,” there must be some corroborating evidence. State v. Smith, 24 S.W.3d 274, 281
(Tenn. 2000) (citing Ashby v. State, 124 Tenn. 684, 139 S.W. 872, 875 (1911)). Literally,
corpus delicti means the body of the crime. Two elements, which must be proven by the
State beyond a reasonable doubt, make up the corpus delicti: “(1) That a certain result has
been produced, and (2) That the result was created through criminal agency.” State v. Ervin,
731 S.W.2d 70, 71-72 (Tenn. Crim. App. 1986). Whether the State has sufficiently


                                              26
established the corpus delicti is primarily a jury question. State v. Jones, 15 S.W.3d 880, 891
(Tenn. Crim. App. 1999).

        While the corpus delicti cannot be established solely by the defendant’s statements,
any other statements may be considered along with any other evidence, both direct and
circumstantial to prove the corpus delicti. Shepherd, 902 S.W.2d at 901. Where there is a
confession, the corroborative evidence “need not be as convincing as the evidence necessary
to establish a corpus delicti in absence of any confession.” Ricketts v. State, 192 Tenn. 649,
654-55, 241 S.W.2d 604, 606 (1951). The “‘evidence is sufficient if . . . it tends to connect
the defendant with the commission of the offense, although the evidence is slight, and
entitled, when standing by itself, to but little consideration.’” Smith, 24 S.W.3d at 281
(quoting Ricketts, 241 S.W.2d at 606). The corpus delicti may be proven by circumstantial
evidence, and “only slight evidence” of the corpus delicti is required to corroborate a
confession and to sustain a conviction. State v. Ellis, 89 S.W.3d 584, 600 (Tenn. Crim. App.
2000); State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999). “It is sufficient if the
corroboration supports the essential facts admitted sufficiently to justify a jury inference of
their truth.” Opper v. United States, 348 U.S. 84, 93 (1954). “A confession may sustain a
conviction where there is other evidence sufficient to show the commission of the crime by
someone.” Taylor v. State, 479 S.W.2d 659, 661-62 (Tenn. Crim. App. 1972). “In sum, as
long as this very modest corroboration requirement is satisfied, the ultimate truth or falsity
of the defendant’s confession is a determination left to the jury.” State v. Housler, 193
S.W.3d 476, 491 (Tenn. 2006).

       We note first that, in this case, corroboration is not necessary for the Defendant’s
attempted sexual battery conviction because the evidence supporting that conviction includes
the victim’s direct testimony that the Defendant had sex with the victim after sedating her.
The conviction was not solely based on the Defendant’s admissions. We will address,
therefore, the tendency of the evidence to support only the Defendant’s remaining
convictions.

       The victim’s testimony about being sedated by her brother, waking up on her
husband’s side of the bed, and, during one incident, finding her brother undressing her
corroborates the Defendant’s admissions, thereby bolstering their veracity to the point that
they form a legitimate basis for a finding of guilt. In the course of his telephone conversation
with the victim, the Defendant acknowledged that, after administering drugs to his sister, the
two had sexual intercourse. He said this happened three times.

       The victim, in her trial testimony, said the Defendant intravenously gave her drugs in
August 2004, September 2004, and July 2005. She almost immediately lost consciousness
each time her brother injected her with these drugs. The first two times her brother injected

                                              27
her, in August and September 2004, the victim did not remember anything that happened
from the time she lost consciousness in her living room and when, hours later, she woke up
in her bedroom on her husband’s side of the bed. The third time her brother administered her
drugs, however, in July 2005, the victim woke up shortly after losing consciousness to see
her brother removing her underwear and pants while she lay on her bed. The victim began
to go in and out of consciousness, waking briefly to see her brother remove his own pants
and again to see him standing at the foot of the bed, with his back turned, stepping back into
his pants. The victim testified that she then experienced a strong “feeling,” which she could
not completely describe, that the Defendant had just raped her. Enraged and afraid, the
victim lunged for the gun she stored in her closet and aimed it at her brother. The victim
again lost consciousness but woke later to find the Defendant departed and a semen-like
substance on her inner upper thigh.

        The victim’s testimony that contains her recollection of the occasions during which,
according to the Defendant, the two had sexual intercourse, corroborates the Defendant’s
account of the incidents. During each of the first two incidents, the victim was not awake,
and thus did not recall her brother actually penetrating her body. The victim was, however,
awake to observe and confirm that, on these occasions, her brother administered medication
to her intravenously in her living room and that, when she awoke later, she was lying on her
bed. Because the corroborative evidence necessary to support the corpus delicti need only
support “the essential facts . . . to justify a jury inference of their truth,” these memories
confirm sufficient aspects of the Defendant’s account to “connect the [D]efendant with the
commission” of incest and sexual battery, in that they connect him to the place and time of
the first two rapes. Opper, 348 U.S. 84 at 93; Smith, 24 S.W.3d at 281.

        Lending further support to the corroborative tendency of this evidence is the victim’s
broader recollection of the third incident. When the Defendant came to the victim’s home
in July 2005, the victim awoke briefly to witness her brother undressing her and later himself.
After she completely awoke, she found semen between her legs. The details of this memory
not only corroborate the Defendant’s account of this third rape, but also are similar to the
details of the two prior incidents, and, therefore, relate back to the 2004 incidents to
corroborate the Defendant’s account of those incidents as well. See Shepherd, 902 S.W.2d
at 901. The victim’s testimony, perhaps of “little consideration” standing alone, in
conjunction with the Defendant’s admissions, establishes the corpus delicti of incest and
sexual battery. See Smith, 24 S.W.3d at 281. We, therefore, conclude that the jury properly
credited the Defendant’s taped statements acknowledging his sexual penetration of the victim
and found him guilty of incest and sexual battery. See Housler, 193 S.W.3d at 491. He is
not entitled to relief on this issue.
                                        B. Sentencing



                                              28
      The Defendant next contends the trial court erred when it aligned three of the
Defendant’s sentences consecutively and again when it ordered the Defendant to serve more
than one year of confinement as part of a split confinement sentence. We address both
contentions below.

                                  1. Alignment of Sentences

       The Defendant argues the trial court erred when, based on its finding that the
Defendant was a “dangerous offender,” it imposed partial consecutive sentencing without
making several Wilkerson findings, which this Court has repeatedly held must accompany
such a sentence. The State agrees that an analysis of the Wilkerson factors is necessary but
argues that the trial court’s explanation of its decision, though brief, implicitly shows the trial
court considered the Wilkerson factors.

       It is within the sound discretion of the trial court whether or not an offender should
be sentenced consecutively or concurrently. State v. James, 688 S.W.2d 463, 465 (Tenn.
Crim. App. 1984). A court may order multiple sentences to run consecutively if it finds, by
a preponderance of the evidence, that at least one of the following seven factors exists:

       (1) The defendant is a professional criminal who has knowingly devoted such
       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 the 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;

                                                29
       (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)(1)-(7). In addition to these criteria, consecutive sentencing is subject
to the general sentencing principle that the length of a sentence should be “justly deserved
in relation to the seriousness of the offense” and “no greater than that deserved for the
offense committed.” T.C.A. § 40-35-102(1), 103(2); see also State v. Imfeld, 70 S.W.3d 698,
708 (Tenn. 2002). Rule 32(c) of the Tennessee Rules of Criminal Procedure instructs a trial
court to explicitly recite on the judgment its reasons for imposing a consecutive sentence.

       Our Supreme Court has noted that the “dangerous offender” category is the hardest
and most subjective to apply. State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). Consequently,
our Supreme Court in State v. Wilkerson held that “particular facts” must show the following
in order to base consecutive sentencing on subsection 115(b)(4): (1) that an extended
sentence is necessary to protect the public against further criminal conduct by the defendant;
and (2) that the consecutive sentences reasonably relate to the severity of the offenses
committed. Id.; State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995); see State v.
Robinson, 146 S.W.3d 469, 524 (Tenn. 2004).

        At the conclusion of the sentencing hearing, the trial court noted that, in preparation
for the sentencing hearing, it reviewed the presentence report, read the psychosexual
evaluation of the Defendant, read the sentencing memorandum submitted by the Defendant,
and considered all the applicable law. The trial court noted that the facts of this case were
“quite egregious” and that this case involved, rather than one continuous act, three separate,
“deliberate” acts and one attempted act. The court acknowledged that the Defendant had no
prior criminal convictions, no history of drug use, and a positive employment history. The
trial court found, however, that due to the “very, very serious series of criminal events,” “the
circumstances of this case [were] so severe” that confinement was necessary to avoid
depreciating the seriousness of the offense. Based upon this, the trial court denied the
Defendant’s request for an alternative sentence.

       Noting that it was “uncomfortable” sentencing the Defendant beyond the statutory
minimum, it sentenced the Defendant to three years for each of his three incest convictions,
one year for each of his three sexual battery convictions, and eleven months and twenty-nine
days for his attempted sexual battery conviction.

      The trial court then addressed the alignment of the Defendant’s sentence. It noted that
the Defendant “was administering drugs he had no business administering” and “abusing a

                                              30
position of trust, not only to his sister, but a position of trust in the community.” It also noted
that, in spite of the victim saying, “[S]top, stop, I’m losing consciousness,” the Defendant
“kept right on pumping her with a drug.” Based upon this behavior, the trial court found that
the Defendant exhibited “extreme behavior” and “an extreme disregard for human life,”
which made him a “dangerous offender,” within the meaning of the consecutive sentencing
criteria (4). See T.C.A. § 40-35-115(b) (2006). On this basis, the trial court imposed
consecutive sentencing as to his three three-year sentences for incest but allowed his
remaining convictions to be served concurrently, for a total effective sentence of nine years.

        In sum, in the course of imposing consecutive sentencing in this case, the trial court
found that the Defendant exhibited “extreme behavior” and “an extreme disregard for human
life.” It omitted entirely, however, any analysis of whether “an extended sentence [was]
necessary to protect the public against further criminal conduct by the defendant” and
whether “the consecutive sentences reasonably relate[d] to the severity of the offenses
committed.” See Wilkerson, 905 S.W.2d at 938-39. The trial court appears to have focused
only on the statutory language of the “dangerous offender” category and failed to consider
the Wilkerson factors necessary to base consecutive sentencing on the “dangerous offender”
category. T.C.A. § 40-35-115(b)(4). Because a determination of the Wilkerson factors by
the trial court must accompany any imposition of consecutive sentencing based upon T.C.A.
section 40-35-115(b)(4), we must reverse the trial court’s imposition of consecutive
sentencing. Further, following our careful de novo review of the record, we cannot conclude
that consecutive sentencing pursuant to T.C.A. § 40-35-115(b)(4) is supported by the
evidence in this case. Therefore, we order that the Defendant’s sentences be served
concurrently, for a total effective sentence of three years, with one year to be served in
confinement and the rest on probation.

                       2. Split Confinement Totaling over One Year

        Having reversed the consecutive alignment of the Defendant’s sentences we need not
rule on the merits of the Defendant’s claim that the trial court erred when it imposed
consecutive sentences of split confinement, resulting in a split confinement sentence with a
total of two years of confinement. However, we note that Tennessee Code Annotated section
40-35-306(a), the statute governing split confinement, prohibits the trial court from
sentencing the Defendant to more than one year in jail as a part of split confinement sentence.
That statute reads, “A defendant receiving probation may be required to serve a portion of
the sentence in continuous confinement for up to one (1) year in the local jail or workhouse,
with probation for a period of time up to and including the statutory maximum time of the
class of the conviction offense.” Tenn.Code Ann. § 40-35-306(a) (emphasis added). In our
view, the consecutive alignment of split confinement sentences resulting in a confinement
period of over one year runs afoul of Section 40-35-306(a). See State v. Matthew I. Tart,

                                                31
E2009-01315-CCA-R3-CD, 2010 WL 1610515, *3 (Tenn. Crim. App., at Knoxville, Apr.
21, 2010). Thus, the portion of the trial court’s judgment ordering the Defendant to serve his
three split confinement sentences consecutively, for a total of three years in confinement, was
also in error.

                                       III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude the
evidence was sufficient to support the Defendant’s convictions, but the trial court erred when
it sentenced the Defendant. As such, we reverse the trial court’s judgments and order the
Defendant’s sentences to be served concurrently, for a total effective sentence of three years,
with the first year to be served in confinement and the remainder on probation.


                                                   _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




                                              32
