                                                                                          06/28/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 5, 2018 Session

           STATE OF TENNESSEE v. CORDARIOUS FRANKLIN

                 Appeal from the Criminal Court for Shelby County
                     No. 15-01192       Lee V. Coffee, Judge
                     ___________________________________

                           No. W2017-00680-CCA-R3-CD
                       ___________________________________


Defendant, Cordarious Franklin, was convicted of rape of a child, aggravated sexual
battery, and child abuse. The trial court imposed consecutive sentences of forty years for
rape of a child, twelve years for aggravated sexual battery, and eleven months, twenty-
nine days for child abuse. On appeal, Defendant raises the following issues: (I) whether
the trial court erred by admitting the victim’s forensic interview; (II) whether the
evidence was sufficient to support Defendant’s convictions; (III) whether the trial court
erred in denying Defendant’s request to review the victim’s medical records; (IV)
whether the trial court erred by failing to give the jury a Ferguson instruction; (V)
whether a juror’s questions amounted to extraneous prejudicial information; (VI) whether
Defendant’s sentence was improper; and (VII) whether there was plain error due to an ex
parte conversation between the State and the trial court and by the trial court’s exclusion
of Defendant’s family from the courtroom during the victim’s testimony. After review,
we conclude there is structural constitutional error by the trial court excluding the public
from the courtroom and therefore reverse the judgments and remand for a new trial.

                      Tenn. R. App. P. 3 Appeal as of Right;
              Judgment of the Criminal Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Andre C. Wharton, Memphis, Tennessee (on appeal) and Tim Williams and Krista
Holder-Williams, Memphis, Tennessee (at trial) for the appellant, Cordarious Franklin.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Jennifer Shurson and Lessie Rainey,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                        OPINION

Background

       Initially, we note that in order to protect the minor victim, she will be referred to
solely throughout this opinion as “the victim.” In addition, we will refer to the victim’s
mother and other members of the victim’s immediate family by their initials in order to
further protect the victim’s identity. C.D., the victim’s mother, testified that on
December 7, 2013, she was living with Defendant and their two children. When she
arrived home from work at 10:00 p.m., Defendant said that he was going to go to the
store which was located “a little walk” from their apartment. C.D. thought that
Defendant was acting strangely because he told the children to stay in their rooms, and he
was very quiet.

       As C.D. began cooking, the four-year-old victim walked out, and C.D. noticed a
dark bruise under the victim’s left eye. The child said that Defendant did it, but she did
not say how Defendant bruised her eye. She also said that Defendant put his “cootie” in
her mouth and told her not to bite it. C.D. testified that cootie is another word for
“private area.” The victim also said that Defendant told her to move her hands up and
down on his private area (penis) and to suck on it. The victim indicated that the offense
occurred while C.D. was at work and that Defendant told the victim’s brother to go into
his room and watch television before the offenses occurred. C.D. called her mother who
in turn called police. The victim went to the bathroom and called for C.D. The victim
said that she had “red stuff” on the tissue. C.D. also saw “pinkish red” in the toilet. She
was told by police to take the victim to Le Bonheur Children’s Hospital.

        Police arrived at the apartment and then left to find Defendant at the store. After
the police left, C.D. got a knife and began looking for Defendant. As Defendant
approached the apartment complex, C.D. met him at the front gates with a knife and the
intent to kill him, but police stopped her. The victim was taken to Le Bonheur Children’s
Hospital for an examination. She was also questioned by someone from “Child
Services.” The victim’s grandfather stayed with her while C.D. went back to the
apartment for police to take pictures and collect evidence.

        C.D. returned to Le Bonheur Children’s Hospital and later took the victim to the
Rape Crisis Center where she received another exam. The victim was “pretty much
telling everyone the same thing.” C.D. also noted that the victim had diarrhea while at
the Rape Crisis Center, although the victim had never mentioned being sick. C.D. took
the victim to the Memphis Child Advocacy Center on a later date. C.D. admitted that she
eventually spoke with Defendant again and let him see his children a couple of times.
She testified that the victim still loved Defendant. C.D. also admitted apologizing to
Defendant and asking for his forgiveness after finding out that she was pregnant with his


                                           -2-
third child. She said that she was apologizing for the situation in which they found
themselves and not because she made up anything about the offenses in this case.

       On cross-examination, C.D. testified that she and Defendant had been together for
six years at the time of the offenses in 2013. She said that the victim had never witnessed
any type of sexual activity between her and Defendant and that she had a bedroom door
that closed and locked. When asked exactly what the victim told her at the time of the
offenses, C.D. testified that the victim told her, “My dad put his cootie in my mouth and
told me to suck on it.” The victim did not respond when C.D. asked her about the bruise
other than to say that Defendant did it.

       C.D. admitted that she refused offers of counseling for the victim because the
victim did not like talking about what happened, and it would be a “constant reminder.”
C.D. denied that seeing the video of the victim’s forensic interview influenced C.D.’s
statement to police because she saw it after the statement. C.D. believed she told police
that Defendant told the victim not to bite his penis. C.D. admitted that she contacted
Defendant through Facebook after the offenses occurred and sent him the following
message:

        I’m sorry. I know you love your daughter. God knows she loves you.
        When I see y’all, it’s a bond like no other. I know you would never do
        anything to harm them. Please don’t be mad at me for my concerns as a
        mother. You have no idea how much in my heart I didn’t want to
        believe it happened ‘cause I love you just as much. I’m sorry. You can
        still see the kids when you want. They love seeing you. Even [the
        victim] is coming back around to you.”

C.D. testified that she also sent Defendant a message that read: “Do you forgive me?
Really, I truly am sorry. If I’ve ever admitted I was wrong before, I am now.” C.D.
admitted she was not present when Defendant saw the victim while the victim was at his
sister’s house. She did not know for certain if the victim was alone with Defendant
during the visit.

       On redirect, C.D. testified that she did not tell Defendant that she was wrong for
calling the police and protecting the victim. She also said that she did not accept
counseling for the victim because she thought that the victim, at her age, did not
understand that what happened to her was wrong.

        Teresa Onry, a forensic interviewer with the Memphis Child Advocacy Center,
testified that she interviewed the victim in this case on December 16, 2013. As soon as
the interview began, the victim disclosed what happened. Ms. Onry testified that she was
alone with the victim during the interview, and the victim answered questions
appropriately for her age. There were also two observers listening from another room.

                                           -3-
Ms. Onry explained that children have “flashbulb” memories, which meant that “they
remember something and then they say it.” She said that the victim was calm and soft-
spoken during the interview and did not seem intimidated by her surroundings.

       Sally Discenza, a forensic examiner/nurse at the Rape Crisis Center, testified as an
expert in sexual assault forensic examination. She examined the victim on December 8,
2013. She obtained the victim’s medical history from the victim’s mother who said that
she got home from work and noticed a bruise on the victim’s face. Concerning the
victim’s medical history, Ms. Discenza further testified:

        The child also disclosed her dad told her to go to the bedroom and close
        the door. Her father told her to put his “cootie” - - and I clarified with
        the mother what that meant, which it meant his penis - - in her mouth
        and suck on it. Her father also put his red bandana on her head. And the
        father made her rub his penis up and down. And the mother
        demonstrated what the child demonstrated to her. [The victim] told her
        mother her cootie was bleeding and then they went to Le Bonheur.

Ms. Discenza testified that she spoke with the victim alone. She noted that the victim’s
demeanor was “sad” and “quiet” but that the victim was also “articulate” and “specific”
about what happened. Ms. Discenza testified:

        [The victim] said, um, I started it out by asking her what happened to her
        eye. And she stated, “[Defendant] hit me. He put his thing in my mouth
        and told me to suck on it.” And I clarified with her what his “thing”
        was. And she clarified “his cootie,” and then I clarified with her what
        that meant to her, which was his penis. “He told me to do this too,” and
        she demonstrated holding something in her hand and going up and down.
        “He put his cootie on my butt. There was blood on the tissue.” Saying -
        - I asked her had he done this before, and she said yes. And I asked her
        how many times he did this before, and she said three.

       Ms. Discenza testified that her physical examination of the victim revealed a
bruise and swelling under the victim’s right eye. She noted that the injury was recent due
to the “purple red” discoloration of the victim’s skin, and there was still swelling. Ms.
Discenza did not find any injury to the victim’s genital or anal area, which was not
uncommon in cases of child sexual assault. Ms. Discenza testified that the bleeding
noted by the victim could have occurred internally and not been visible from the exam.
She noted that the anal area, especially, had an “autonomic response that it will dilate up”
to prevent injury. Ms. Discenza collected a rape kit from the victim. She noted that the
victim had eaten food prior to the examination and that she had also had a bowel
movement and diarrhea prior to the examination. Therefore, Ms. Discenza was not


                                           -4-
surprised that no DNA was found on the oral or anal swabs taken from the victim. She
said that her findings supported the victim’s history of sexual assault.

       On cross-examination, Ms. Discenza testified that she had no way of knowing if
someone influenced the victim before Ms. Discenza spoke to her. However, she testified
that the victim was very bright and articulate and that she was able to tell Ms. Discenza
exactly what occurred. Ms. Discenza said:

        So again, with what occurred, that that was - - that history is something
        that you wouldn’t normally meet. Normally a child does not say that.
        You know what I mean? That doesn’t occur typically. That’s not what
        their experience is. So there was something that occurred that made her
        have these experiences.

She noted that “most children don’t come up and say, ‘Someone put their cootie in my
mouth.’”

        Ms. Discenza acknowledged that a bruise under someone’s eye was not indicative
of any type of sexual trauma. She also said that there was no dilation of the anus in the
victim’s case. Ms. Discenza assumed that a younger child would have more anal trauma
from penetration by an adult than an older child. She noted that “as literature supports,
it’s in all children that in more instances than not you’re going to have a normal exam. In
examining children of sexual assault, there’s more instances than not that the exam is
going to be normal.” Ms. Discenza agreed that she did not find any physical evidence of
rape or a sexual assault. She also agreed that it could be just as likely, from the physical
observations, that the victim was raped as that she was not raped. The parties stipulated
that all of the DNA swabs from the victim tested negative for semen.

       The victim, now seven years old, testified that she recalled living in an apartment
with her brother, mother, and Defendant. She recalled a conversation with her mother in
the kitchen before they moved out of the apartment during which her mother asked,
“What you do to get your mark on your face?” She told her mother that Defendant did it.
The victim noted that her mother was cooking breakfast foods for dinner, and she had
walked into the kitchen to help her mother cook. When asked if her mother asked her
any further questions, the victim replied, “No.” When asked if she told her mother
anything else during the conversation, the victim replied, “Yes.” However, she did not
remember what she told her mother. The victim testified that her mother called police
after their conversation, and officers came to the apartment. She later went to the
hospital and to the Child Advocacy Center. The victim recalled talking to “Ms. Teresa”
and that she told Ms. Teresa the same thing that she told her mother. She said that the
conversation was recorded and that she had watched the video. The victim testified that
she told the truth during her conversations with her mother and with “Ms. Teresa.”


                                           -5-
        The victim testified that on the day of the offenses, she was at home with her
mother, brother, and Defendant. At some point, her mother left to go to work. The
victim noted that their apartment had two bedrooms and that she shared a room with her
brother, and her mother and Defendant shared the other bedroom. The victim testified
that Defendant told her to go into his bedroom by herself, and she sat on the floor
watching television. Defendant then walked into the room and sat on the bed. He also
asked the victim to sit on the bed with him. At that point, Defendant removed his pants
and underwear but not his shirt. With the aid of a doll during her testimony, the victim
testified that Defendant touched inside of both her “butt” and her mouth with his
“[p]rivate part.” The victim further testified that when Defendant placed his private part
in her mouth, he said, “Don’t bite it.”

      When asked what Defendant told the victim to do with her hands, the following
exchange took place:

        [Prosecutor]:      Okay. And did he tell you to do anything with your
        hands?
        [The victim]:      Yes.
        [Prosecutor]:      Can you show us what he told you to do with your
        hands?
        [The victim]:      Yes.
        [Prosecutor]:      Yes? Would you show us, please?
        [The victim]:      He told me to do this (indicating).
        [Prosecutor]:      He told - - okay. Can you hold your hands up just a
        little bit higher?
        [The victim]:      Yes.
        [Prosecutor]:      And show us again.
        [The victim]:      He told me to do this (indicating).
        [Prosecutor]:      Okay. And did you do what he said?
        [The victim]:      Yes.
        [Prosecutor]:      The hand gesture that you made that he told you to
        do, were you touching his private part when you did that?
        [The victim]:      Yes.

The victim testified that after that, Defendant touched her butt with his private part.
When asked if Defendant placed a red piece of fabric over her eyes, the victim replied,
“No.” However, she agreed that she could not remember. She said that Defendant did
not say anything after he touched her, and she had some Kool-aid. The victim later went
to the restroom and noticed blood on the tissue and in the toilet, and she notified her
mother to look at it. The victim agreed that her testimony was the same as she told her
mother and “Ms. Teresa.”



                                          -6-
       On cross-examination, the victim testified that she came to the courthouse on the
Sunday before trial and watched the video of her interview. She also watched it in an
office the Friday before trial. The victim denied watching the video at her house. The
following exchange then took place:

        [Defense Counsel]:          Okay. Do you know if you get in trouble, you
        say some certain things happen. I think Monday you told the court that
        you get whippings sometimes?
        [The victim]:               Yes.
        [Defense Counsel]:          And today you could go to jail.
        [The victim]:               Yes.
        [Defense Counsel]:          Did someone tell you you could go to jail?
        [The victim]:               No.
        [Defense Counsel]:          You just said that?
        [The victim]:               Yes.
        [Defense Counsel]:          After that day, that day that you had the black
        eye, or the bruise on your eye - -
        [The victim]:               Yes?
        [Defense Counsel]:          - - do you - - you remember talking, you said,
        right?
        [The victim]:               Yes.
        [Defense Counsel]:          You remember telling your mother, but you
        can’t remember what you told her?
        [The victim]:               Yes.
        [Defense Counsel]:          Is that right?
        [The victim]:               Yes.
        [Defense Counsel]:          Okay, so you don’t remember? So, and you
        said - - you told Ms. Rainey that you didn’t remember what you told the
        people at the hospital right?
        [The victim]:               Yes.
        [Defense Counsel]:          Okay. And so - - but after you saw the video,
        did someone tell you you had to say what was on the video today or you
        could go to jail?
        [The victim]:               No.
        [Defense Counsel]:          No? Did anyone say anything about you could
        get a whipping if you don’t tell the Court about the video?
        [The victim]:               No.
        [Defense Counsel]:          Okay. So, so you don’t remember what you
        told your mom, you don’t remember what you told the police, and you
        really don’t remember what happened that day, is that about it?
        [The victim]:               Yes.
        [Defense Counsel]:          So you don’t remember? Is that right? I’m
        sorry.

                                           -7-
        [The victim]:             Yes.
        [Defense Counsel]:        You do not remember? So the way you’re
        remembering, is it because they showed you the video at least three
        times? Is that about it?
        [Prosecutor]:             Judge?
        THE COURT:                Yes, ma’am?
        [Prosecutor]:             If he can ask one question at a time.
        [Defense Counsel]:        Oh, I’m sorry.
        THE COURT:                Yes, sir, [defense counsel], if you’d ask one
        question, please. And [victim], if someone asks a question and you don’t
        understand what’s being asked, let me know and we’ll get him to ask a
        better question, okay?
        [The victim]:             Okay.
        THE COURT:                Yes, sir, [defense counsel], you may proceed.
        [Defense Counsel]:        [Victim], so you just said yes when I asked
        you - - when I asked you if you did not remember what happened.
        [The victim]:             Yes.
        [Defense Counsel]:        And the only reason you remember is because
        they showed you the video three times.
        [The victim]:             Yes.
        [Defense Counsel]:        So was it confusing to talk to all those people?
        [The victim]:             No.

       The victim testified that her mother took her to the hospital and that her
grandfather was not there. She also said that her mother never left the hospital. The
victim testified that she left Le Bonheur and went to another building. She was there
until sunrise, and she then went home with her mother. The victim testified that she
spoke with Ms. Onry and watched the video approximately ten days to two weeks later.
She did not recall seeing Defendant since the incidents occurred. The victim testified that
she was not afraid of defense counsel, and no one told her to say at trial what was on the
video. She said that no one told her to use the word “cootie” for private parts and that she
used the word on her own. The victim told defense counsel that she did not remember
what happened on the day of the offenses. She also said that she did not know anyone
named “Laquisha.”

        On redirect examination, the victim testified that she remembered what she told
her mother on the night of the offenses. However, she did not want to talk about it. She
also said that she remembered what happened in the bedroom between her and Defendant
but she did not want to talk about it. The victim testified that she was telling the truth in
the video about what happened. When asked if she had done the best she could do to tell
the truth in court, the victim replied, “Yes.”



                                            -8-
      On recross-examination, the victim testified that she had been to an aunt’s
apartment sometime after the offenses occurred, and she saw Defendant at the apartment.
However, he did not spend the night there. She did not recall seeing Defendant at her
grandmother’s house.

       Following the victim’s testimony, the video of her forensic interview was played
for the jury. In the video, the victim told Ms. Onry that Defendant “watched” her and her
younger brother while their mother was at work and that Defendant “messed” with the
victim. The victim said that Defendant put his “cootie” in her mouth and told her to
“suck on it.” She said that Defendant also told her to move her hands up and down on his
“cootie,” and the victim demonstrated what she did. The victim told Ms. Onry that
Defendant also put his “cootie” in her “butt” and that there was blood on the tissue when
she used the bathroom. She said that the incidents occurred in her mother’s house in her
mother’s bedroom. The victim told Ms. Onry that her younger brother saw her suck
Defendant’s “cootie.”

       The victim told Ms. Onry that her mother saw a mark on her face. The victim said
that the mark was caused by Defendant, but she did not know how it happened. The
victim first told Ms. Onry that her clothes were on when Defendant put his “cootie” in
her “butt.” However, she later said that Defendant told her to get on the floor, and he
removed her pants. The victim said that it hurt when Defendant put his “cootie” in her
“butt.” She said that Defendant placed a “red thing” on her head and over her eyes so
that she could not see. The victim said that she had sucked Defendant’s “cootie” two
times, and he put his “cootie” in her “butt” one time. He also put his mouth on her
mouth. The victim told Ms. Onry that Defendant had tattoos on his arms and on his
“cootie.” She used pictures to show where Defendant put his “cootie.” The State then
rested its case.

       Mary Turner, Defendant’s grandmother, testified that Defendant, C.D., and their
children, including the victim, lived with her during 2013-2014. Ms. Turner testified that
she turned her living room into a bedroom by placing sheets at the “entranceway.” She
said that Defendant and C.D. had a pullout bed, and the children slept in a baby bed.
When asked if she had any personal knowledge of Defendant and C.D. having sex with
the children in the room, Ms. Turner replied, “Well, I have - - I have heard them and
heard them say, ‘Ya’ll lay down.’” She then heard sounds that she interpreted as
Defendant and C.D. having sex. Ms. Turner also testified that Defendant and the victim
had been at her house together after December of 2013 along with C.D. and Defendant’s
son. Ms. Turner testified that the victim loved Defendant and did not appear to be afraid
of him. She also called him “Daddy.”

       On cross-examination, Ms. Turner agreed that the offenses in this case were
alleged to have occurred in December of 2013. She acknowledged writing a letter in
which she said that Defendant and his family lived with her after the victim was born in

                                          -9-
2009. However, Ms. Turner testified that they lived with her “off and on” for two or
three years. She agreed that Defendant and his family lived with her before the victim
was born and afterwards.

        On redirect examination, Ms. Turner testified that she believed that Defendant and
his family last stayed with her sometime before the victim turned four years old. During
that time she heard the noises coming from the bedroom area.

       Laquisha McGhee, Defendant’s girlfriend, testified that she and Defendant began
dating in June 2013. She said that she had spent time with the victim more than ten times
at her house, Defendant’s sister’s house, and Defendant’s mother’s house. She said that
C.D. brought the victim to her house and that Defendant was never alone with the victim.
Ms. McGhee testified that C.D. never told her that Defendant could not be alone with the
victim. She said that the victim did not appear to be afraid of Defendant, and she called
him “daddy.” She also said that Defendant and the victim appeared to have a normal
relationship. Ms. McGhee testified that she had never seen a tattoo on Defendant’s penis.

       Dominique Franklin, Defendant’s sister, testified that Defendant and C.D. had
been together since the two were seventeen years old, and they had three children
together. She testified that Defendant met Ms. McGhee in 2014 rather than 2013. Ms.
Franklin testified that C.D. would bring her children, including the victim, to Ms.
Franklin’s house while the charges against Defendant were pending, knowing that
Defendant would be there. She said that C.D. dropped the children off on several
occasions and left without giving Ms. Franklin any kind of instructions on whether or not
Defendant could see the children. Ms. Franklin described the relationship between C.D.
and Defendant as “cordial.”

       Ms. Franklin testified that she visited Defendant’s apartment after he and Ms.
McGhee began living together, and the children, including the victim, were there on
several occasions alone with Defendant. She said that the children also stayed there
overnight.

        Defendant testified that he woke C.D. at approximately 5:30 a.m. on the morning
of the offenses and escorted her to the bus stop so that she could go to work. He then
walked back to the apartment and lay down in the bedroom for one to three hours.
Defendant testified that although the children had a separate bedroom, they did not have a
bed so the children slept with him and C.D. Concerning the events of the day, Defendant
testified as follows:

        [The victim] and [her brother] woke me up around 8:00 that morning
        ‘cause they were hungry. I made them breakfast, which consisted of
        eggs and toast. They ate. They went back again and played their normal
        routine of games, which is - - consists of toys, blocks, things of that

                                          - 10 -
        nature. Around I want to say 12:00, I made them lunch, which consisted
        of chicken nuggets. That’s what they like. They had chicken nuggets
        that day. The rest of the day went fairly normal. It was cartoons and
        playtime.

        [C.D.] made [it] home around 10 that night in which me and [the victim]
        and herself, we brought up the groceries that she brought home from
        work that day. Her father was with her. He brought her home that day.

Defendant testified that he and the children were home all day, and no one came over.
He noted that it was “extremely cold” that day.

       Defendant testified that C.D. began cooking dinner after she arrived home and that
she made “breakfast for dinner.” He left to walk to a store, which was approximately
thirty minutes away. Defendant testified that the victim asked to go to the store with him
but he told her no because of the weather. He said that the victim was in the kitchen with
C.D. when he left. Defendant testified that C.D. met him with a knife at the gates to the
apartment complex when he arrived back from the store, and they had a scuffle. He said
that police arrived, and he was eventually taken into custody and transported to the police
department. Defendant testified that he was questioned and then escorted to his
grandmother’s house. He said that the victim did not have a bruise under her eye before
he went to the store, and he had no idea how it happened. Defendant claimed that he
learned of the injury when he received the State’s discovery.

      Defendant testified that he, the victim, C.D., and his son had lived with his
grandmother, Mary Turner. At trial, the following exchange took place:

        [Defense Counsel]:      Did you live at your grandmother’s from the
        time C.D. was pregnant with [the victim]?
        [Defendant]:            Yes, sir.
        [Defense counsel]:      Did you live there when [the victim] was
        born?
        [Defendant]:            Yes, sir.
        [Defense Counsel]:      Did you live with her more than once?
        [Defendant]:            Yes, sir.
        [Defense Counsel]:      How long did you live with her when [the
        victim] was born?
        [Defendant]:            From April up until in November of 2009.
        [Defense Counsel]:      Okay. Did you move back in with her after
        that?
        [Defendant]:            Yes, sir.
        [Defense Counsel]:      Who all moved back in with her after that?
        [Defendant]:            Me, [the victim], and her mother, [C.D.].

                                          - 11 -
[Defense Counsel]:          What about - - what about the other two?
[Defendant]:                They weren’t born yet, sir.
[Defense Counsel]:          And how long did they live - - did y’all live
there that time?
[Defendant]:                Possibly like five or six months.
[Defense Counsel]:          Then what happened? Where’d you live then?
[Defendant]:                We actually had an apartment in the Red Oaks
--
[Defense Counsel]:          How long did you stay there?
[Defendant]:                We stayed there for another six or seven
months.
[Defense Counsel]:          Where’d you move after that?
[Defendant]:                We moved back to my grandmother’s.
[Defense Counsel]:          Was [the victim’s brother] born then?
[Defendant]:                [The victim’s brother] was actually on the
way, he was on his way.
[Defense Counsel]:          Did y’all stay there or not until [the victim’s
brother] was born?
[Defendant]:                I stayed there. [C.D.], she had moved back
with her mother.
[Defense Counsel]:          Later, did you, [C.D.], [the victim], and [the
victim’s brother] live there together?
[Defendant]:                Yes, sir.
[Defense Counsel]:          How many times, do you recall?
[Defendant]:                This would be - - this would be the third time.
[Defense Counsel]:          Okay. How long did you live there with [the
victim, [the victim’s brother], and [C.D.]?
[Defendant]:                We stayed there for I want to say about three
or four months.
[Defense Counsel]:          And where’d you go then?
[Defendant]:                We moved to my grandmother’s house.
[Defense Counsel]:          [C.D.’s] grand- - [C.D.’s] grandmother?
[Defendant]:                No, no, no, no, my grandmother. My father’s
side.
[Defense Counsel]:          From your father’s side.
[Defendant]:                Yes, sir.
[Defense Counsel]:          How long did all stay there?
[Defendant]:                We stayed there, it was a fairly short amount,
like three or four months.
[Defense Counsel]:          Did y’all live with Mary Turner when [the
victim] was three or four?
[Defendant]:                We did. We actually did.
[Defense Counsel]:          How long did y’all live there then?

                                  - 12 -
[Defendant]:               It was - - it was fairly short, like three months.
[Defense Counsel]:         Excuse me one moment, please.
THE COURT:                 Yes, sir.
[Pause]
[Defense Counsel]:         When y’all stayed there then, try to describe
where your grandmother’s room was and where your room was, the
room y’all stayed in.
[Defendant]:               Yes, sir, it was - - it was fairly close. It was
only divided by a bathroom.
[Defense Counsel]:         Bathroom?
[Defendant]:               Yes, sir.
[Defense Counsel]:         Is that a different place than y’all stayed
before you had two children?
[Defendant]:               No, sir.
[Defense Counsel]:         And what furniture was in that room?
[Defendant]:               There was a futon, which is a pulled out bed in
which me and [C.D.] slept at. And there was a baby bed in which [the
victim] and [the victim’s brother] shared.
[Defense Counsel]:         Was that a baby bed with - - like a standard
baby bed with the bars and - -
[Defendant]:               It was made like a crib.
[Defense Counsel]:         So they didn’t sleep with y’all in that bed?
[Defendant]:               No, sir.
[Defense Counsel]:         Did sexual activity occur between you and
[C.D.] with those kids in that baby bed or not?
[Defendant]:               They were, they were.
[Defense Counsel]:         Were y’all making noise while y’all were - -
[Defendant]:               (Inaudible) noise.
[Defense Counsel]:         Did that or did it not wake up the children?
[Defendant]:               On occasion it did.
[Defense Counsel]:         What did y’all do then?
[Defendant]:               We would instruct them (inaudible) - -
[Prosecutor]:              Your Honor, I’m having trouble hearing the
defendant.
THE COURT:                 Speak up a little bit louder, sir.
[Defendant]:               Okay, yes, sir.
THE COURT:                 I’m sitting three feet from you, I can’t hear
you. I’m sure the jury can’t if I can’t. [Defense counsel] you may
proceed.
[Defense Counsel]:         Speak up, sir.
[Defendant]:               We were actually instructing them to go to
sleep and assured them that everything was fine.


                                   - 13 -
       Defendant testified that C.D. visited him after he moved in with Ms. Turner after
he was “detained” and that she would “on occasion move in and move out.” He moved
in with his girlfriend, Laquisha McGhee, in June 2014 where he stayed until March 11,
2015. Defendant testified that he and C.D. had a third child who was born on August 28,
2014. He said that he saw the victim and his son while he was at his grandmother’s
house and after he had moved in with Ms. McGhee. He noted that the children would
spend the night and that he was sometimes alone with the children.

       Defendant testified that he was not guilty of the charges against him. He said that
he did not put his “cootie” in the victim’s mouth, and he did not have any tattoos on his
penis. He also said that he did not place a blindfold on the victim or have anal sex with
her.

       On cross-examination, Defendant agreed that “up to the point when [the victim]
was four years old,” he spent most of the time with the victim and that he was around her
almost every day and took care of her while C.D. was working. Defendant admitted that
C.D. was angry and yelling at him when she met him at the gates with the knife when he
returned from the store. He could not explain why the victim associated the bruise under
her eye with sexual activity. Defendant acknowledged that the victim told three
witnesses about the injury. He further acknowledged that the victim had not recanted her
allegations despite the fact that she still loved Defendant. He believed that on the video
of the interview, the victim on several occasions said that “my mother said” to say the
things to police. Defendant agreed that the first thing that the victim told the interviewer
was that Defendant “messed with me.”

Analysis

       I.     Admission of the Victim’s Forensic Interview

       Generally questions concerning the admissibility of evidence rest within the sound
discretion of the trial court, and this Court will not interfere with the exercise of that
discretion in the absence of a clear showing of abuse appearing on the face of the record.
State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014). “A trial court abuses its discretion only
when it applies an incorrect legal standard or makes a ruling that is ‘illogical or
unreasonable and causes an injustice to the party complaining.’” Id.

       Tennessee Code Annotated section 24-7-123 allows a child-victim’s forensic
interview to be introduced into evidence, at the discretion of the trial judge, if certain
requirements are met. It states:

        a video recording of an interview of a child by a forensic interviewer
        containing a statement made by the child under thirteen (13) years of age
        describing any act of sexual contact performed with or on the child by

                                           - 14 -
        another is admissible and may be considered for its bearing on any
        matter to which it is relevant in evidence at the trial of the person for any
        offense arising from the sexual contact if the requirements of this section
        are met.


Tenn. Code Ann. § 24-7-123(a). The statute goes on to provide that the video recording
must be shown to the trial court in a hearing, conducted pre-trial, and possess
“particularized guarantees of trustworthiness,” which is to be determined by the trial
court. Id. § 24-7-123(b)(2). In making such determination, the statute outlines several
factors for the trial court to consider:

        (A) The mental and physical age and maturity of the child;
        (B) Any apparent motive the child may have to falsify or distort the
        event, including, but not limited to, bias or coercion;
        (C) The timing of the child’s statement;
        (D) The nature and duration of the alleged abuse;
        (E) Whether the child’s young age makes it unlikely that the child
        fabricated a statement that represents a graphic, detailed account beyond
        the child’s knowledge and experience;
        (F) Whether the statement is spontaneous or directly responsive to
        questions;
        (G) Whether the manner in which the interview was conducted was
        reliable, including, but not limited to, the absence of any leading
        questions;
        (H) Whether extrinsic evidence exists to show the defendant’s
        opportunity to commit the act complained of in the child’s statement;
        (I) The relationship of the child to the offender;
        (J) Whether the equipment that was used to make the video recording
        was capable of making an accurate recording; and
        (K) Any other factor deemed appropriate by the court[.]

Id. § 24-7-123(2)(A)-(K). If the trial court determines that the video recording is not
trustworthy, the inquiry ends, and the evidence will not be admitted. Id.

      Concerning this issue, the trial court made very detailed findings:

              For the record, the court, as required by 20 - - Tennessee Code
        Annotated 24-7-123, makes the following specific findings of facts in
        this case:

             This is actually a legal question that the Court has to determine as
        to whether or not this video is in fact admissible. The Supreme Court

                                           - 15 -
and Tennessee case law has indicated consistently persistently [sic] that
videotapes of child victims are in fact admissible. The question of
admissibility has been determined conclusively against [Defendant] as
long as certain criteria are met. Will not put the cases on the record, but
Tennessee Supreme Court opinions and Court of Criminal Appeals
opinion[s] have conclusively and persistently determined that the statute
is in fact constitutional, that 24-7-123 is in fact constitutional. There
have been arguments that have been made that the act is in fact violative
of a defendant’s confrontation rights, that is hearsay and should not in
fact be admissible. But those decisions have been decided against
[Defendant] and other folks that are similarly situated. Crawford versus
Washington, C-R-A-W-F-O-R-D versus Washington would indicate that
if statements made out of court, made to law enforcement that are made
for purposes of preserving or producing testimony in court that those in
fact become testimonial and under some circumstances it is in fact
considered hearsay. But our Supreme Court and the Court of Criminal
Appeals have ruled that this statute is in fact constitutional, 24-7-123.

      And this Court finds pursuant to Tennessee Code Annotated 9-4-
213 Ms. Onry testified that Memphis Child Advocacy Center, she’s
worked there for seven years. It is in fact a nonprofit organization, does
have a board of directors, there is a memorandum of understanding that
has been filed, has been signed by the District Attorney General’s Office,
all local law enforcement officers, that it is part of the Child Protective
team in that the organization does in fact - - is established in its own
building. They have no contract, not part of law enforcement. These are
private folks that have been trained in forensic interviews that go through
this process.

       Ms. Onry has a bachelor’s in Psychology. She has no criminal
history. Her work is in fact been subject to peer review. She told the
Court that she does have the requisite number of hours in order to be
qualified as a forensic interviewer. And specifically told the Court that
Memphis Child Advocacy Center does in fact meet the requirements of
Tennessee Code Annotated 9-4-213. And will not, again, put all those
on the record because the record would indicate that she has in fact
testified that this center does in fact meet that criteria and that it is in fact
a nonprofit organization, does employ an executive director, that she has
in fact graduated from an accredited university, does have a degree in
psychology. She does have at least three years of psychology. She does
have at least three years of full-time experience working in this field,
seven years with Memphis Child Advocacy Center; that she has
completed 40 hours of forensic training in interviewing child victims;

                                     - 16 -
that she’s done eight hours of interviewing under the supervision of
qualified forensic interviewers; that she does have knowledge of child
development through casework and professional training or experience.
She has no criminal history, has participated in video review.

      So the Center does meet the criteria as indicated earlier. There is a
visual as well as an oral recording of this video. The entire video of the
child was recorded from the time that Ms. Onry entered into this room,
put preparatory remarks on the - - on the interview as to where, time,
place, location that interview did in fact take place. And the tape was
running even after the child had in fact been interviewed. Every voice
on the recording has been properly identified. There’s only two voices
on this videotape, audiotape. That’s Teresa Onry and [the victim].
There are no other voices or no other folks that are recorded on this
video.

     And this Court does find that that part of the criteria has in fact
been met.

      This Court also finds for the record, the Court did administer an
oath to [the victim] pursuant to Tennessee Rules of Evidence 6-0-3. And
6-0-3 would indicate that before a witness is testifying that every witness
shall be required to declare that the witness will testify truthfully by oath
or affirmation, administered in a form calculated to awaken the witness’
conscience and to impress upon the witness’ mind the duty and
obligation to testify truthfully or untruthfully.

       [The victim], seven years of age, at the time this video was made,
she was four. Very articulate young lady, soft-spoken. Very energetic
young child at the age of four when this interview took place. Maybe a
little bit unfocused, maybe bouncing around a little bit. A lot of energy
at the age of four, which is typical for a four-year-old to engage in that
kind of un-bridered - - bridled, rather, energy. Typical of four years old,
but also this Court finds more advanced at the age of four, very
articulate, very well spoken. Did in fact convey thoughts, did answer
questions clearly, did answer those questions appropriately.

      There were some instances where it was obvious that she did not
understand some of the questions that Ms. Onry asked. And instead of
seeding, or leading that child, if Ms. Onry tried to ask questions, did not
get a response, Ms. Onry did what she was supposed to have done. Did
not ask leading questions, did not suggest answers, did not provide
information to this child and have the child affirm or regurgitate that

                                   - 17 -
which Ms. Onry had suggested to [the victim]. When [the victim]
apparently did not understand questions, as I told [the victim] earlier this
morning, if somebody asks a questions that she doesn’t understand, let
me know and we’ll make sure we ask better questions. And when she
did not understand something, Ms. Onry did what she should have done,
she just moved on to another area. And in fact at one or two times on the
tape told someone she didn’t understand and she basically left it alone.

      She is, at the age of four, and at the age of seven right now, she is a
very mentally and physically mature child. It’s amazing that she was
able to tell Teresa Onry in December of 2013 with a clear mind, clear
memory, and to relate those things clearly and without hesitation
questions that she was asked and answers that she provided. This is a
very precocious four-year-old child and very physically and mentally
mature at the age of four.

      I did not see anything on the record that would indicate that the
child has any motive to testify falsely or distort these events. There’s no
bias, no coercion. [Defense counsel] suggests that maybe, maybe her
mother may have prompted some of this. And there are some competing
theories that maybe a mother or someone else should have been present
while Ms. Onry conducted this interview. But that would be improper to
have someone else present when this interview in being conducted
because it would lead perhaps to a child maybe providing answers and
making statements that the child believes would satisfy what that child
has been told to do. And that’s why these interviews are conducted
without anybody being present.

      All the time I’ve been on the bench I’ve never seen an interview,
no matter what the age of the child is, conducted at the Child Advocacy
Center when a parent, guardian, or some other person was present.
There’s only the child and the interviewer, the forensic interviewer, that
are present when this interview was conducted. And that’s to make sure
that there’s no bias, no prejudice, nothing that would indicate that
somebody was coaching or suggesting or providing answers or
influencing how this child responded to questions that may have been
asked of this child. There’s an indication that perhaps Mom might have
prompted this child or someone else may have told this child what to
say. Ms. Onry told the Court that when she spoke to [the victim] that
she did not talk to her about that she did not talk to her about any of the
alleged facts of the case, that she had been provided some contextual
information from the investigators so she would know exactly what
questions or direction generally, broadly, what subjects she should

                                   - 18 -
discuss with this child. But Ms. Onry told the Court clearly that she did
not discuss any allegations, any specifics of this until this child was in
fact in this interview room and wh[]en Ms. Onry discussed this matter
with this child.

      There’s absolutely nothing on the record that would indicate that
these events that [the victim] relayed to Teresa Onry were in fact coerced
or influenced or the result of anything other than what [the victim] told
Teresa Onry. In fact, there’s - - there’s an argument made that when
Teresa Onry asked [the victim], “Tell me something about you,” that the
child should have talked about maybe school or parents or maybe things
that she liked or did not like. But she was there because somebody said,
“Mama says we’re going to call the police because of what your daddy
did to you.” She’s taken in to talk to these folks, and when she asked her
to “Tell me something important about you,” the mind of a four-year-old
says, “This is really important, my daddy was putting his cootie in my
mouth and in my booty and that’s what I want to tell you that’s real
important because that’s something that should not have happened.”
And she told Ms. Onry that she had told her mother, [the victim] had told
her mother what had happened. And this is the narrative that she gave
Ms. Onry some eight days after these events had allegedly occurred.

      And I do find that that timing is in fact, eight days after this event
occurred, is, as [the prosecutor] has indicated, it is unusually quick that
you can have an arrangement, have the interview made at Memphis
Child Advocacy Center. Unfortunately, given the nature of the cases
that we handle, that are handled in Shelby County, the number of
victims, it is unusual to have police officers and forensic interviewer,
child, guardian, parent, all converging at one point within eight days of
an outcry being made in eight days of an event having taken place. So
the timing of this, the sequences of it, would indicate that these
statements are in fact something that is in fact trustworthy and something
that the Court does not find was a result of any distortion of any - - any
influences upon this child.

      The nature and duration of the alleged abuse, this child indicated
that the defendant on two or three occasions, have to go back and check
my notes, put his cootie in her mouth, on two different - - two or three
different occasions, and he put his cootie in her booty maybe one time
and only one time only. Told her two times when he put his cootie in
her mouth and told her to suck it and not to bite it, twice, and that he did
not put anything else in her body and nobody else had ever done


                                   - 19 -
anything like this to her and that she was four years of age and that she
told her mother about these events.

      There’s nothing that would indicate that this child has fabricated
these statements. She did in fact make an outcry that was specific, that
was consistent. May have been in some spots not 100 percent wholly
consistent with everything that she told Ms. Onry. But given her
knowledge, her experience, her age, there’s nothing that would indicate
that what she told Ms. Onry was in fact fabricated. Now, she did tell
Ms. Onry that the defendant did put a mark on her face. Indicated at one
point that her mom may have told her that. But also indicated that when
she told her mom about the defendant doing this, that is something that
Daddy did, that “I told my mom Daddy put his cootie in my mouth and
he put a mark on my face. And I told - - he told me to do this and that
and to suck it.” That is what I heard on the video that she told her mom.
And she may have indicated at some point that her mom told her that
Dad put that mark on her face, but she told her mother that her father put
this mark on the face. And he did not know how that mark was in fact
put on her face. Told me, told Ms. Onry in that video, that this happened
when she was alone with her brother . . . and her mom would be at work
or at the store. And - - at work, rather. And when her father went to the
store, that’s when she made this outcry to her mother.

      These statements are spontaneous. They are directly responsive to
questions. There’s nothing about Ms. Onry’s interview that would
indicate that these are leading questions or that Ms. Onry told this child
what to say. There’s nothing that would indicate that anyone else told
this child what to say because there’s no one else present. And this child
is making spontaneous statements in response to questions that are asked
of her.

      This Court finds that this interview was reliably conducted; that the
answers were in fact reliable, not the result of any leading questions. I
have nothing before me, based on what I reviewed, the videotape did not
get into specifics of the child testimony, and obviously the State is not
required to prove their whole case in a motion to determine the
admissibility of this forensic interview. State is not required to put on
their whole case and say, “Judge Coffee, this is what we have.”

      So I have no extrinsic proof. And even most cases involving child
victims, it is very unusual, it is not normal, it is very seldom, almost
unheard of, for there to be trauma to a child. Whether it is vaginal, anal,
or oral penetration allegedly, it is unusual that extrinsic proof through

                                  - 20 -
any medical findings would come to court and say, “Judge Coffee, we
have proof that this child was in fact traumatized anally, digitally,
orally.” It is something that you almost never see. And what I’ve been
told for 33, 34 years of practicing law that it is the - - not the norm. It is
in fact the norm for there to be no other extrinsic proof that says there’s
some physical proof that corroborates what this child has said. In fact, it
is almost never a situation where a child who’s been a victim of an
alleged sexual assault, rape, or aggravated sexual battery, it’s almost
unheard of that there is some extrinsic proof that would indicate that that
is corroborated by some other physical factors.

      So I have nothing before the Court at all that would indicate
whether there is or is not any extrinsic physical proof. But I anticipate
that probably there will not be. Because that is what happens in almost
all cases.

      This is the father of this child. The equipment that was used in the
case was in fact capable of making a video, did make an accurate
recording. There is a time/date stamp that was continuously running
while this video was in fact made. And this Court does find that the
video was in fact accurate, was made accurately. Ms. Onry and [the
victim] both told the Court that they viewed the video. Ms. Onry had
indicated it’s been a while. [The victim] viewed this video yesterday and
indicated that the video is in fact the video that she gave to Ms. Onry.

      This is - - our Supreme Court, our Court of Criminal Appeals have
determined that if a child is 13 years or younger, pursuant to this factor,
24-7-123, that the videotape is in fact admissible if the Court makes the
following findings, the proceeding findings, which I have in fact made.
This is a seven-year-old child at this time. Was four years old at the time
that this video was made. And those questions regarding possibly
credibility issues, possibly issues where [the victim] may have been
confused, possible issues as to whether she may have said some things
that were to whether she may have said some things that were not 100
percent internally consistent, those are things that go not to the
admissibility of the video. But it goes to the weight. It goes to the
weight as to what weight the jury will give the videotape. And the
argument that it might be prejudicial because it might inflame the jury to
see a videotape recording of what this child claims might have happened,
the Court is being asked basically to tell the Supreme Court and to tell
our legislature that the statute is unconstitutional. And that’s been
decided against [Defendant]. And this Court had to indulge every
presumption that a statute, an act of out legislature, is in fact a

                                    - 21 -
        constitutional act. And I’m loathe [sic], I’m very slow. I know it’s been
        done by another judge in this jurisdiction, but I don’t know and would
        not normally ever tell the Supreme Court and our legislature that they’ve
        passed a statute which I believe to be unconstitutional. And I am
        required to believe and to find that every act of the legislature is in fact
        constitutional.

              And this Court does find, because that issue has been addressed,
        had been resolved against [Defendant], this Court does find none of the
        law of the case doctrine, if our appellate courts has established
        precedence [sic], I’m required to follow the precedence [sic] that’s been
        established unless the Court finds that the act or the statute or appellate
        rules are clearly erroneous, that there’s been a change in the law since
        the courts have repeatedly held these child forensic interviews are in fact
        admissible or unless I find that manifest injustice would result if I allow
        prior rulings to stand. And I find none of those apply in this instance.

             And State versus Joyner, J-O-Y-N-E-R, 759 S.W.2d page 422,
        again would indicate that the Court must look at every statute with the
        presumption that an act of the General Assembly is in fact constitutional.

              And this Court finds that all the prerequisites of Tennessee Code
        Annotated 9-4-213 and 24-7-123 have been complied with in this case.
        And any other objections regarding the contents of the video are not
        really questions that go to admissibility as to whether or not the statute’s
        constitutional and whether or not these mandatory requirements have
        been met. Those other arguments go to the weight as to what the jury
        wants to give the contents of the video. It goes to the weight as to
        whether or not a jury wants to believe what the child will say in court
        and what she has said on that video.

             And for all of those reasons, the Court will grant the State’s motion
        to admit the forensic interview of [the victim], finding that the statute
        had in fact been complied with. And will deny the competing motion to
        exclude or to suppress the recorded interview for those reasons I stated.
        And will note the exceptions for the record, [defense counsel and co-
        counsel].

       In this case, the trial court did not abuse its discretion in finding the video of the
forensic interview trustworthy. It is undisputed that the forensic interviewer met the
requirements of T.C.A. § 24-7-123(b)(3). Moreover, in the pretrial hearing, the victim
remembered going to the Memphis Child Advocacy Center and doing the forensic
interview. She also remembered the events that she talked about in the video, and she

                                           - 22 -
said that she was telling the truth during the interview. The victim was available for
cross-examination. The victim’s statements in the video were consistent with what she
had told her mother and what she told Ms. Discenza at the Rape Crisis Center. Ms.
Discenza recounted the following:

        Child interviewed alone. SANE [Sexual Assult Nurse Examiner] asked
        [the victim] what happened to her eye. [The victim] stated “My Daddy
        hit me.” “He put his thing in my mouth and told me to suck on it”
        (Clarified his Cootie, his private part). “He told me do this too (child
        demonstrated holding something in her hand and she moved her hand up
        and down). “He put his cootie on my butt, there was blood on the
        tissue.” SANE asked [the victim] if her father had done this to her
        before? [The victim] stated, “Yes,” SANE asked how many times her
        father has done this to her? [The victim] stated, “Three.”

The video-taped interview at the Memphis Child Advocacy Center occurred eight days
later, and the victim recounted the same version of events. Defendant points to several
places in the video which he submits in support of his argument that the video lacks
trustworthiness. However, we see nothing on the video that indicates that the victim
made up her story or that she was coached into saying anything by her mother. We also
do not see any alleged inconsistencies during the interview that would render it
untrustworthy. As noted by the trial court, the victim behaved in a manner expected of a
four-year-old child. The trial court also pointed out, and we agree, that the victim gave
no sign of being intimidated by her surroundings during the interview. Accordingly, the
video of the forensic interview possessed the requisite trustworthiness for admission into
evidence.

        Defendant also contends that it was error to admit the video because he was denied
his right to confront the victim due to her age and unwillingness to discuss the details of
the alleged incident at trial. See T.C.A. § 24-7-123(b)(1). However, we agree with the
State that Defendant has waived this issue. Immediately following the victim’s
testimony, the State rested its case. Defendant then moved for a judgment of acquittal.
At that point, Defendant raised no complaint about being denied the right to confront the
victim, and he did not request that the victim’s testimony and the video be stricken from
the record. At the conclusion of all the proof, Defendant renewed his motion for acquittal
and again raised no complaint. Therefore, this issue is waived. Tenn. R. App. P. 36(a);
State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000) (“This court is
extremely hesitant to put a trial court in error where its alleged shortcoming has not been
the subject of a contemporaneous objection. Indeed, we are not required to grant relief to
‘a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.’”) (internal citation omitted);
State v. Eric Milon, No. W2016-01707-CCA-R3-CD, 2017 WL 4739527, at *4 (Tenn.


                                            - 23 -
Crim. App. Oct. 19, 2017) (confrontation issue was waived by not having specifically
objected to the admission of testimony on this ground).

       Moreover, there was no denial of Defendant’s right to confront the victim. As
pointed out by the State, the victim answered every question asked by Defendant on
cross-examination, which was approximately one-hundred and twenty-three questions.
The victim also answered Defendant’s questions about whether she was only testifying
against him to avoid being punished, which was the crux of the defense. The victim
never left the witness stand. We acknowledge that the victim stated that she could not
remember what she told her mother or Ms. Discenza; however, the victim had testified as
to these matters on direct examination. The victim responded to Defendant’s questions
regarding whether she based her testimony solely on the video of the forensic interview
and whether she was merely repeating her testimony to avoid being punished. Therefore,
Defendant had the opportunity to “bring out such matters as the witness’ bias, . . . lack of
care and attentiveness, . . . poor eyesight, and even (what is often a prime objective of
cross-examination) . . . the very fact that [she] has a bad memory.” United States v.
Owens, 484 U.S. 554, 558 (1998). Defendant is not entitled to relief on this issue.

       II.    Sufficiency of the Evidence

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

       On appellate review, “‘we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will

                                           - 24 -
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury’s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       To establish rape of a child, the State was required to prove “unlawful sexual
penetration of a victim by the defendant or the defendant by a victim, if such victim is
less than thirteen years of age.” Tenn. Code Ann. § 39-13-522(a). Sexual penetration is
defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body or of any object into the genital
or anal openings of the victim’s, the defendant’s, or any other person’s body . . . .” Id. §
39-13-501(7).

          To establish aggravated sexual battery, the State was required to prove “unlawful
sexual contact with a victim by the defendant” when the victim is less than thirteen years
old. Id. § 39-13-504(a)(4). “Sexual contact” is “the intentional touching of the victim’s
. . . intimate parts, or the intentional touching of the clothing covering the immediate area
of the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” Id. § 39-13-501(6). “‘Intimate parts’ includes the primary genital area,
groin, inner thigh, buttock or breast of a human being.” Id. § 39-13-501(2).

       Child abuse is defined as “knowingly, other than by accidental means, treat[ing] a
child under eighteen (18) years of age in such a manner as to inflict injury[.]” Id. § 39-
15-401(a). Child neglect is “knowingly abus[ing] or neglect[ing] a child under eighteen
(18) years of age, so as to adversely affect the child’s health and welfare[.]” Id. § 39-15-
401(b).

       In this case, Defendant argues that the evidence was insufficient to support his
convictions because the videotape of the victim’s forensic interview was improperly
admitted and that without the video, “the State is left with virtually nothing proving the
elements of the three offenses of which the Defendant was convicted beyond a reasonable
doubt.”

       Before reviewing the evidence presented at trial, it is important to note that when
an appellate court reviews whether the evidence admitted is legally sufficient to support a
conviction, all evidence is reviewed, even evidence that the court determines was
inadmissible. State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981). This is true even
if the reason the evidence was erroneously admitted is the result of the denial of a

                                           - 25 -
defendant’s constitutional rights which results in a reversal of the conviction and granting
a new trial. Furthermore, it applies when the conviction is reversed because of trial
proceedings in violation of an accused’s constitutional rights, as in this case. We
conclude that structural constitutional error occurred during the victim’s testimony which
necessitates a new trial. However, the victim’s testimony must still be considered when
making a legal sufficiency of the evidence determination. A determination that all the
evidence admitted is insufficient to support the conviction results in a reversal of the
conviction and dismissal of the charge with prejudice with no new trial due to double
jeopardy implications. Therefore, finding legal sufficiency of the evidence to support a
conviction is never inconsistent with also determining that a reversal with a new trial is
mandated on other grounds.

        As we have previously determined, the video of the forensic interview was
properly admitted. We further find that the evidence presented at trial was sufficient
beyond a reasonable doubt to support Defendant’s convictions. As pointed out by the
State, the victim, who was four years old at the time of the offenses, was consistent in her
statements to her mother and everyone else that Defendant placed his penis in her mouth
and anus and that he made her wrap her hands around his penis and move it up and down.
The victim’s trial testimony was also consistent with what she told Ms. Onry during the
forensic interview.

       C.D., the victim’s mother, testified that Defendant was not acting normally when
she arrived home from work and that he then left the residence to walk to a store. He had
also told the children to stay in their rooms. When the victim came out of her room, C.D.
noticed a bruise under her eye, and the victim said that Defendant did it. The victim told
C.D. that Defendant put his “cootie” in her mouth and told her not to bite it, and he told
her to move her hands up and down on his penis and suck on it. The victim went to the
bathroom and told C.D. that there was “red stuff” on the tissue. C.D. saw a “pinkish red”
substance in the toilet.

        Although there was no physical evidence of the offense, other than the bruise
under the victim’s eye, Ms. Discenza testified that the lack of injury to the victim’s
genital or anal area was not uncommon in cases of child sexual assault. She further
testified that the bleeding noticed by the victim could have occurred internally and not
been visible from the exam. Ms. Discenza also noted that the anal area, especially, had
an “autonomic response that it will dilate up” to prevent injury. Ms. Discenza testified
that the victim had eaten food prior to her examination, and she had a bowel movement
with diarrhea. Therefore, she was not surprised that no DNA was found on the oral or
anal swabs taken from the victim. Ms. Discenza testified that her findings supported the
victim’s history of sexual assault.


      Defendant further argues that the rule of cancellation applies in this case
“cancelling out [the victim’s] statements as to the crimes, leaving the remaining evidence
                                           - 26 -
insufficient to convict Defendant.” Concerning the rule of cancellation, a panel of this
court has held:

        The court in [State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App.
        1993)] recognized that “contradictory [sworn] statements by a witness in
        connection with the same fact cancel each other.” 888 S.W.2d at 449
        (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482
        (Tenn. Crim. App. 1978)); see State v. Cayle Wayne Harris, No. M2000-
        02143-CCA-R3-CD, 2001 WL 1218582, at *2 (Tenn. Crim. App. Oct.
        12, 2001) (“The rule of cancellation is typically limited to circumstances
        in which the witness has sworn to each statement.”). The Matthews court
        explained that unlike a scenario in which the jury hears contradictory
        testimony from two different witnesses and must make a credibility
        determination, a witness’s self-contradicting testimony means that each
        version carries equal weight and cannot be resolved by the jury except
        through whimsy. Matthews, 888 S.W.2d at 449-50 (citing Johnston v.
        Cincinnati N.O. & T.P. Ry. Co., 240 S.W. 429, 436 (Tenn. 1922)). The
        rule of cancellation applies when “inconsistency in a witness’[s]
        testimony is unexplained and when neither version of his testimony is
        corroborated by other evidence.” Id. at 450 (citing Taylor, 573 S.W.2d at
        483). Testimony from a single witness will be disregarded when the
        testimony “is not of a cogent and conclusive nature, and ‘if it is so
        indefinite, contradictory or unreliable that it would be unsafe to rest a
        conviction thereon.’” Letner v. State, 512 S.W.2d 643, 649 (Tenn. Crim.
        App. 1974) (quoting 23 C.J.S. Criminal Law § 903).

State v. David Hopkins, No. E2016-02192-CCA-R3-CD, 2017 WL 4221148, at *7 (Tenn.
Crim. App. Sept. 22, 2017). Contrary to Defendant’s assertions, the victim did not give
contradictory sworn statements. The victim’s only sworn testimony detailing the
offenses was given by her at the trial. Although the victim testified at the pretrial hearing
concerning the admission of the forensic interview video, she merely authenticated the
video and affirmed that she was telling the truth in it. Additionally, we do not find that
the four-year-old victim’s statements during the forensic interview were sworn
statements. Therefore, there is no conflicting sworn testimony as alleged by Defendant.
Id. at *7 (“Although Sutton gave unsworn, contradictory statements to the police prior to
Hopkins’ trial, she provided consistent testimony at trial implicating Hopkins in the
victim’s killing and robbery. Because Sutton did not provide conflicting sworn
testimony, we do not believe the rule of cancellation applies, and we may consider her
testimony when evaluating the sufficiency of the evidence.”). Because the victim did not
provide conflicting sworn testimony, we do not believe that the rule of cancellation
applies in this case.



                                           - 27 -
       We also note that the victim’s trial testimony was consistent with her statements in
the video of the forensic interview. There is nothing about the victim’s testimony that is
so unreliable as to justify its exclusion. A single witness’ testimony will only be
disregarded if it “is not of a cogent and conclusive nature, and ‘if it is so indefinite,
contradictory or unreliable that it would be unsafe to rest a conviction thereon.’” Letner,
512 S.W.2d at 649 (citation omitted). The victim’s statements about oral and anal
penetration and finding blood on the toilet tissue were consistent throughout the
proceedings and corroborated by her mother’s testimony.

      The evidence was sufficient beyond a reasonable doubt to support Defendant’s
convictions for rape of a child, aggravated sexual battery, and misdemeanor child abuse.
Defendant is not entitled to relief on this issue.

       III.   Denial of Request to Review the Victim’s Medical Records

        Defendant argues that the trial court erred in refusing him access to the victim’s
medical records. At trial, defense counsel indicated that he had subpoenaed the victim’s
medical records from Le Bonheur Children’s Hospital. The hospital sent the records to
the trial court under seal, and the trial judge reviewed them.

       Defendant requested to review the victim’s medical records that were in the
possession of the trial court speculating that the records might contain exculpatory
information and to “get the names of people, the doctors, nurses, stuff to try to see if
[they] couldn’t question them or get them in here at trial to see if there’s something they
could add.” The trial court noted that it had reviewed the medical records in camera.
The trial court denied Defendant’s request to review the medical records.

       We are unable to conclude whether the trial court abused its discretion when it
declined to disclose the victim’s medical records to Defendant. There are no sealed
medical records included in the appellate record for this court to review. It is the duty of
an appellant to make sure the appellate record contains everything necessary for this
Court to review properly raised issues. Tenn. R. App. P. 24(b). Without the sealed
medical records, we are unable to review this issue. Thompson v. State, 868 S.W.2d 156,
172 (Tenn. Crim. App. 1993). Accordingly, the issue is waived. State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991).

       IV.    Failure to Give a Ferguson Instruction

        Defendant contends that the trial court erred by declining to give the jury a
Ferguson instruction because the victim’s underwear was not collected and preserved as
evidence. In State v. Ferguson, the Tennessee Supreme Court held that “the loss or
destruction of potentially exculpatory evidence may violate a defendant’s right to a fair
trial.” State v. Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing State v. Ferguson, 2

                                           - 28 -
S.W.3d 912, 915-16 (Tenn. 1999)). Upon determining that the due process clause under
the Tennessee Constitution was broader than the due process clause under the United
States Constitution, the Tennessee Supreme Court rejected the “bad faith” analysis
adopted by the United States Supreme Court which provided that “‘unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law.’” Id. at 784-85
(quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). Rather, the court in Ferguson
adopted a balancing approach requiring the trial court to determine “‘[w]hether a trial,
conducted without the [lost or] destroyed evidence, would be fundamentally fair.’” Id. at
785 (quoting Ferguson, 2 S.W.3d at 914).

       When a Ferguson claim is raised, a trial court must first determine “whether the
State had a duty to preserve the evidence.” Id. “[T]he State’s duty to preserve evidence
is limited to constitutionally material evidence described as ‘evidence that might be
expected to play a significant role in the suspect’s defense.’” Id. (quoting Ferguson, 2
S.W.3d at 917). To meet the constitutionally material evidence standard, “the evidence
must potentially possess exculpatory value and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.”
Id.

        If the proof establishes that the State had a duty to preserve the evidence
        and that the State failed in its duty, the court must conduct a balancing
        analysis, considering the following factors:

        1. The degree of negligence involved;
        2. The significance of the destroyed evidence, considered in light of the
        probative value and reliability of secondary or substitute evidence that
        remains available; and
        3. The sufficiency of the other evidence used at trial to support the
        conviction.

        Ferguson, 2 S.W.3d at 917 (footnote omitted). The trial court must
        balance these factors to determine whether a trial would be
        fundamentally fair absent the missing evidence. Merriman, 410 S.W.3d
        at 785. If the trial court determines that a trial would be fundamentally
        unfair without the missing evidence, “the trial court may then impose an
        appropriate remedy to protect the defendant’s right to a fair trial,
        including, but not limited to, dismissing the charges or providing a jury
        instruction.” Id. at 786.

        This court reviews the trial court’s decision regarding the fundamental
        fairness of a trial conducted without the missing evidence de novo. Id. at
        791. The trial court’s findings of fact are conclusive on appeal unless

                                          - 29 -
       the evidence preponderates against them. See id. (citations omitted).
       This court reviews the trial court’s remedy for a Ferguson violation
       under the abuse of discretion standard. Id.

State v. Terry Craighead and Sinead St. Omer, No. M2017-01085-CCA-R3-CD, 2018
WL 5994974, at *8 (Tenn. Crim. App. Nov. 15, 2018) perm. app. denied March 28,
2019. In Craighead, this court further said:

       In Ferguson, the Tennessee Supreme Court did not impose a duty upon
       the State to collect evidence but addressed the State’s duty to preserve
       evidence. See Ferguson, 2 S.W.3d 912. Ferguson involved the State’s
       failure to preserve a video recording of the defendant’s performing field
       sobriety tests at a police station following his arrest for driving under the
       influence. Id. at 914-15. In reaching its decision, the Court in Ferguson
       discussed two opinions from the United States Supreme Court:
       California v. Trombetta, 467 U.S. 479 (1984), and Youngblood, 488 U.S.
       51. Trombetta involved the State’s failure to preserve samples of a
       defendant’s breath-analysis test, and Youngblood addressed the police
       officer’s failure to refrigerate semen-stained clothing collected from a
       sodomy victim which precluded testing of the clothing. See Trombetta,
       467 U.S. at 481; Youngblood, 488 U.S. at 58. Neither case addressed the
       State’s duty to collect the evidence but addressed the State’s failure to
       preserve the evidence once it was collected.

       Our supreme court in Ferguson included in a footnote a jury instruction
       that a trial court may employ upon finding that the State’s destruction of
       evidence violated a defendant’s constitutional right to a fair trial. 2
       S.W.3d at 917 n.11. The jury instruction provides in part, “The State has
       a duty to gather, preserve, and produce at trial evidence which may
       possess exculpatory evidence.” Id. The court cited to Trombetta and
       State v. Willits, 393 P.2d 274, 276 (Ariz. 1964), in support of the
       instruction. However, neither Trombetta nor Willits addressed whether
       the State has a duty to collect evidence but addressed the State’s failure
       to preserve evidence already in the State’s possession. See Trombetta,
       467 U.S. at 481; Willits, 393 P.2d 276-78 (holding that the trial court
       erred in failing to instruct the jury that if the jury determined that the
       State destroyed evidence whose contents or quality are at issue, the jury
       may infer that the evidence did not support the State’s interests).

       On numerous occasions, this court has held that a law enforcement
       officer’s failure to collect certain items from a crime scene did not result
       in a Ferguson violation. See e.g., State v. Joshua Hunter Bargery, No.
       W2016-00893-CCA-R3-CD, 2017 WL 4466559, at *62-64 (Tenn. Crim.

                                          - 30 -
        App. Oct. 6, 2017), no perm. app. filed (holding that the State’s failure to
        collect a bloody towel, fruit punch cans, blood stain samples, and
        fingerprints did not violate Ferguson because the State had no duty to
        collect such items); State v. Mario Hubbard, No. W2016-01521-CCA-
        R3-CD, 2017 WL 2472372, at *6-8 (Tenn. Crim. App. June 7, 2017), no
        perm. app. filed (concluding that the State did not have a duty to
        preserve surveillance footage from a crime scene when officers failed to
        collect the footage); State v. Cordell Bufford, No. W2013-00841-CCA-
        R3-CD, 2014 WL 2129526, at *12-13 (Tenn. Crim. App. May 20, 2014)
        (rejecting the defendant’s claim that “the State should have collected
        more evidence because that evidence might have been exculpatory”
        (emphasis in original)); State v. Brock, 327 S.W.3d 645, 698-99 (Tenn.
        Crim. App. 2009) (holding that the State did not have a duty to collect
        fingerprint evidence and a bloody footprint from the crime scene); State
        v. Yevette Somerville, No. W2001-00902-CCA-R3-CD, 2002 WL
        1482730, at *4-5 (Tenn. Crim. App. Feb. 11, 2002) (concluding that the
        State did not have a duty to preserve surveillance footage from the scene
        of a Wal-Mart for a shoplifting charge when the State never had
        possession or control over the footage).

        In concluding that the State’s failure to collect evidence from a crime
        scene does not rise to the level of a Ferguson violation, this court has
        recognized that

            “the State is not required to investigate cases in any particular
            way: Due process does not require the police to conduct a
            particular type of investigation. Rather, the reliability of the
            evidence gathered by the police is tested in the crucible of a trial
            at which the defendant receives due process. Moreover, [i]t is
            not the duty of this Court to pass judgment regarding the
            investigative techniques used by law enforcement unless they
            violate specific statutory or constitutional mandates.”

        Brock, 327 S.W.3d at 698-99 (quoting State v. Tony Best, No. E2007-
        00296-CCA-R3-CD, 2008 WL 4367529, at *13 (Tenn. Crim. App. Sept.
        25, 2008)) (internal citations omitted).

State v. Terry Craighead and Sinead St. Omer, 2018 WL 5994974, at *9-10.

       In this case, the trial court properly declined to give the jury a Ferguson
instruction because the victim’s underwear was not lost, and the State had no duty to
collect and preserve the victim’s underwear. Defendant is not entitled to relief on this
issue.

                                           - 31 -
       V.     Extraneous Prejudicial Information

        Defendant essentially argues that a juror’s two questions amounted to extraneous
prejudicial information and that he was entitled to a mistrial because the trial court did
not allow him to cross-examine the victim’s mother concerning the questions asked. The
trial court informed counsel that it would not publish the two questions to the jury and
would not ask the victim’s mother about them because the questions were “not relevant to
anything that this jury has to determine.” The two questions asked by the juror were: (1)
why the victim’s mother had a one-year-old daughter after the victim had alleged that she
was raped by Defendant; and (2) was the one-year-old child the product of a consensual
relationship or did Defendant rape the victim’s mother. At that point, Defendant raised
no objection, did not request a mistrial, nor did he request a jury-out hearing for a proffer
from the victim’s mother. We agree with the State that the issue is waived because the
Defendant did not raise the issue during trial. See Tenn. R. App. P. 36(a) (“Nothing in
this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.”).

        Furthermore, the trial court notified the jury that it had received a question that it
could not answer. The court further instructed the jury that if submitted questions were
not answered by the proof, “you cannot guess, cannot speculate, cannot consider for any
reason at all, any purpose at all, the answer or guess what the answer might have been
had an answer been provided.” Defendant voiced no objection to the instruction, and the
jury is presumed to have obeyed the instruction of the trial court. See State v. Banks, 271
S.W.3d 90, 134 (Tenn. 2008). We also find that the juror’s questions did not amount to
extraneous information.

        “[I]nformation that can be inferred from the evidence offered at trial is
        not extraneous information.” [State v.]Crenshaw, 64 S.W.3d [374,] 393
        [(Tenn. Crim. App. 2001)]. Nor are “a juror’s subjective thoughts, fears,
        and emotions” considered extraneous information. Caldararo ex rel.
        Caldararo v. Vanderbilt Univ., 794 S.W.2d 738, 742 (Tenn. Crim. App.
                                        -
        1990). Likewise, “[i]ntra-jury pressure or intimidation are ‘internal
        matters that do not involve extraneous information or outside
        influence.’” [State v. David Brian] Howard, 2017 WL 4051134, at
        *10[(Tenn. Crim. App. Sept.13, 2017)] (quoting Caldararo, 794 S.W.2d
        at 742). As such, the Defendant has failed to establish that the opinion
        expressed in the juror question as well as the potential impact that
        opinion had on the other jurors amounted to extraneous prejudicial
        information.



                                            - 32 -
State v. Timothy Pate, No. E2016-02566-CCA-R3-CD, 2018 WL 4026500, at *15 (Tenn.
Crim. App. June 29, 2018), appeal denied (Nov. 15, 2018). At trial in this case, the
victim’s mother testified on direct examination that she had three children by Defendant
ages seven, four and one year old. On continued direct examination by the State, the
victim’s mother testified that she found out approximately one month after the offenses in
this case that she was pregnant with her third child who was now within a couple of
weeks of turning two years old. Therefore, the two questions were apparently based on
information inferred from trial and were not extraneous prejudicial information.

       Defendant is not entitled to relief on this issue.

       VI.    Sentencing

       Defendant contends that the trial court improperly considered sentencing factors.
From his argument, it appears that Defendant only challenges the length of his forty-year
sentence for rape of a child. He does not appear to challenge the trial court’s imposition
of consecutive sentences.

        Our standard of review of the trial court’s sentencing determinations is whether
the trial court abused its discretion, and we apply a “presumption of reasonableness to
within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The
application of the purposes and principles of sentencing involves a consideration of “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-
103(5). Trial courts are “required under the 2005 amendments to ‘place on the record,
either orally or in writing, what enhancement or mitigating factors were considered, if
any, as well as the reasons for the sentence, in order to ensure fair and consistent
sentencing.’” Bise, 380 S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). Under the
holding in Bise, “[a] sentence should be upheld so long as it is within the appropriate
range and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Id. at 709-10.

       On appeal, Defendant argues that the trial court erred by erroneously stating
multiple times that Defendant raped the victim “orally, anally, and vaginally.” Defendant
points out that there was no proof that Defendant raped the victim vaginally. Defendant
further contends that the trial court improperly referenced “the fact that the [victim] in the
present case had only turned four (4) years old eight (8) months prior to the alleged
incidence[sic]” and that had the victim “been three (3) at the time of the incidence [sic],
the range for Defendant would have been forty (40) to sixty (60) years.” Defendant
therefore asserts that the trial court “seemingly used this rationale for sentencing
Defendant to forty (40) years, enhancing his sentence to the highest maximum sentence.”


                                            - 33 -
        Although the trial court was incorrect in stating that Defendant raped the victim
vaginally, this does not negate his sentence. The record reflects that the trial court, in
sentencing Defendant, considered all appropriate principles set forth in T.C.A. § 40-35-
210(b). The court applied four enhancement factors, including Defendant’s history of
criminal convictions in addition to those necessary to establish the range; the victim was
particularly vulnerable due to her age; Defendant has failed to comply with conditions of
a sentence involving release into the community; and Defendant abused a position of
trust. See T.C.A. § 40-35-114(1), (4), (8), (14). The trial court gave great weight to each
of the enhancement factors. The court did not find any applicable mitigating factors.
Defendant does not contest the application of enhancement factors, and the record
reflects that they were appropriately applied.

       Defendant’s conviction for rape of a child is a Class A felony. T.C.A. § 39-13-
522(b)(1). Because he was convicted of rape of a child, Defendant was subject to
sentencing range of twenty-five to forty years. T.C.A. § 39-13-522(2)(A); § 40-35-
112(b)(1). Defendant’s sentence of forty years is within the range.

       We conclude that the trial court properly sentenced Defendant. The trial court
considered the relevant principles and sentenced Defendant to a within range sentence.
The evidence presented at trial and during the sentencing hearing supports the trial
court’s application of enhancement factors. We conclude the trial court did not abuse its
discretion by imposing the maximum sentence of forty years for Defendant’s rape of a
child conviction. As such, the Defendant is not entitled to relief on this issue.

      VII.   Plain Error

    In a supplemental brief, Defendant raises two issues for which he seeks relief pursuant
to the plain error doctrine. See State v. Adkisson, 899 S.W.2d 626 639-42 (Tenn. Crim.
App. 1994); Tenn. R. App. P. 36(b). Specifically, Defendant asserts that he is entitled to
a new trial because: (1) the trial court, over Defendant’s objection, excluded the public
from his trial during the victim’s testimony, and (2) the trial court should have recused
himself from presiding over the trial after having ex parte communications with an
assistant district attorney.

   (1) Denial of Defendant’s Sixth Amendment Right to a Public Trial

      On July 6, 2016, prior to the trial which began July 19, 2016, the State filed a
   pleading designated as “Motion of the State of Tennessee for Special Procedures
   During the Testimony of [the] Child Victim.” Pertinent to the present issue, the
   motion stated, in relevant part,

             NOW COMES the State of Tennessee in the above styled cause
        and hereby requests that the Court allow the following procedures and

                                          - 34 -
        modifications in the courtroom to be used during the child victim’s
        testimony, due to the age of the victim and the nature of her testimony:

             1. That the courtroom be closed to the media and all persons who
                are not required by law or requested by the child to be present
                in the courtroom during the child victim’s testimony;
                                     ....

             3. That the guardian and/or victim advocate be allowed to be
                present in the courtroom[.]

       The motion was heard by the trial court, along with various other motions, on July
18, 2016. In order to best express exactly what transpired in the courtroom during the
hearing of this motion, we will set forth excerpts from the transcript as follows.

                 [ASSISTANT DISTRICT ATTORNEY]: Your Honor, I
        wanted to start by addressing motion that we filed for special procedures
        during the testimony of a child victim. The first is that the courtroom be
        closed to media and all persons who are not required by the law or
        requested by the child to be present in the courtroom during the child
        victim’s testimony only. Your Honor, we’d ask that that be something
        that the Court will implement both at this hearing and also during the
        trial. She’s seven years old now, for the record. She is extremely shy
        and reluctant to testify in front of people she doesn’t know. And, Your
        Honor, there are many people currently in the courtroom. And I
        understand that these are normally open proceedings. They can be
        present for every other part of the trial. But in light of the victim’s age
        and information that she has to talk about, questions that she’ll be asked
        by both the State and the defense, I think it’s appropriate that there be as
        few people in the courtroom as possible both to ensure that she can
        testify without undue influence but also so she is available for cross-
        examination.

              Your Honor, as to No. 2, that the child victim be able to bring in a
        comfort item, such as a stuffed animal, I think that she’ll have a stuffed
        animal with her if the Court permits that. Also, that her guardian be
        allowed to be present in the courtroom. Her mother is a person of
        comfort to her, and we would ask that she be able to be present at this
        hearing and during the trial. She’ll testify before her so that there
        shouldn’t be any issues with the rule. But we would ask that she be able
        to be in the courtroom and possibly even be able to sit near the victim to
        provide comfort to her. Courts have allowed that before. The child
        could even sit in the guardian’s lap or even in a prosecutor’s lap.

                                           - 35 -
They’ve allowed that before. We would just ask that she be able to sit
near her.
                               ....

         THE COURT: [Defense Counsel], the motion filed by
[Assistant District Attorneys] regarding special procedures for the
testimony of the child victim, any statements or arguments regarding the
requests that have been placed on the record?

          [DEFENSE COUNSEL]:            Your Honor, as far as the
courtroom being cleared, we understand that with exception this is my
client’s family. We feel they have a right to be in the courtroom as long
as they behave themselves appropriately. They’re also related to her.

         THE COURT: [Defense Counsel], there are areas - - and your
client obviously has the right to be present during all critical stages of the
trial. And courtrooms are normally open to the public unless the Court
finds a reason as to why it should not be open. I have not seen the
seven-year-old child in this case, but the trends in federal courts, state
courts, not only in Tennessee but other courts, are to allow special
procedural accommodations for child witnesses in a deference.
Basically it falls in the sound discretion of the trial court as to whether or
not the Court should grant certain special accommodations and special
procedures. And the Court of Criminal Appeals would look at it,
appellate courts would look at it as to an abuse of discretion as to
whether or not by imposing certain restrictions, whether the Court has
abused its discretion.

      And what I’m told is that the child is very sensitive, very, very
uncomfortable. And this is a situation where your client has a right to be
present. Other court personnel has to be present while the trial is being
conducted. But his family members, I don’t know that they’re necessary
witnesses or any reasons why the Court should say that those folks
should be allowed to be present when I’m told that the victim, alleged
victim, witness would be very uncomfortable in looking at certain people
while she is testifying.

     So I don’t know how - - you have to articulate or tell me why it
somehow is prejudicial to [Defendant] if his family and other members
are not allowed to be present in court when that child is in fact testifying.
There are some states, some states, Tennessee right now is not one of
those states, that would allow a child victim to testify in a different
room. Doesn’t even have to be in the courtroom. Testify by way of

                                    - 36 -
closed circuit TV. And our courts have held it is not a violation of a
defendant’s rights to confrontation if the defendant is in the courtroom,
the victim is testifying in another room, because the defendant’s able to
see the child on video screens while that child is testifying. So there are
courts, other states, and it has been used in other courts in this state, I
believe, where a child is allowed to testify not having to sit in the
witness stand, not having to face anyone, but testifying by way of the
closed circuit TV.

      [Defendant] has a right to be present. And if that could also be
done by - - we don’t have the ability in Shelby County at this moment to
do closed circuit television testimony of any witnesses. But he has the
right to be present. [The] State is not asking that your client be excused
or excluded, or lawyers, but just simply other folks. And I do not find
that that request is any - - at all prejudicial to [Defendant], does not
impede his ability to get a fair trial in this case. And again, it’s
something that’s within the sound discretion of the courts. And the trend
nationwide is for the court to adopt those special accommodations for
child witnesses. And allowing this child to testify without having to
look at a courtroom full of strangers to go through something that is
probably the worst thing that hopefully that child will ever go through in
her life, I don’t think that is at all prejudicial of [Defendant] to tell other
folks, visitors, not only his family members, but any other folks that may
be present in the courtroom that while this child is testifying - -
[Defendant] has the right to confront, has a right to be present during all
the questioning of this victim.

      But there are no - - nothing in the Constitution that says other
people have the right to be present. There’s nothing in our rules that
would indicate that other members of the general public and/or media
has the right to be present. The media has not, for the record, filed any
request asking that this case be covered, none that has been filed, none
that’s been presented. We did have the media here on another case this
morning, but not related to [Defendant] but a first-degree murder case.

      And I do find that the request to allow this victim to testify and not
have other folks present in the courtroom not only during this hearing
but also during her testimony, I do find that it is well taken, find that the
probative value, that there is no unfair prejudice that could be absolutely
associated with this by saying that the other members of the public will
not be able to be present in the courtroom when this child is testifying.
And this is to protect the child. This is also to protect the integrity of
[Defendant’s] trial. And I don’t want this alleged victim to take the

                                    - 37 -
witness stand and feel that she is being pressured one way or the other to
say anything, influenced one way or the other because of other folks that
may be present in the courtroom.

       So I will grant the State’s request when this child is testifying to
exclude all other unnecessary, legally unnecessary people from the
courtroom. That’s everybody other than the court staff, the deputies, the
lawyers, and [Defendant]. But - - and any other support staff that this
child may deem to be necessary. There is no other reason for anybody
else to be present in the courtroom, and will grant the State’s request for
that special accommodation, a procedural accommodation, is to allow
this child to testify without any, any inferences or any possibilities of
any influences, either positive or negative, that might be received if she’s
having to testify and other folks be present in the courtroom. Will note
the exception for the record, but I do believe it is well taken. The Court
in its sound exercise of its discretion believes that motion is in fact well
taken and will allow this child to testify without other folks being present
in the courtroom necessarily.

     Yes, sir?

         [DEFENSE COUNSEL]:              Your Honor, you specifically
said positive or negative. She’s going to have - -

         THE COURT: And let me restructure that, and thank you.

         [DEFENSE COUNSEL]:                 But if you’re letting her mother
here, that’s a positive - -

         THE COURT: Let me restructure that. I’ll restate that,
because part of the motion that [Assistant District Attorney] has filed is
asking the Court to allow a person, mother or someone else, to be
present when the child is testifying. And pursuant to Rule 615, the
Court, at the request of a party, shall order witnesses to be excluded from
the courtroom, but the rule does not authorize the exclusion of a party
who is a natural person, a person designated by counsel, other party that
is not an actual person, or person who’s present is shown by a party to be
essential to the presentation of the party’s cause. And [Assistant District
Attorney] is indicating that the child’s mother is in fact a person who is
essential, that is somebody that provides support to that child.

                                      ....


                                   - 38 -
      And will qualify that because I did misspeak, [Defense Counsel],
that I will exempt the victim’s mother from the Rule of Sequestration
pursuant to Jordan [sic] and pursuant to Rule 615 and would allow the
victim’s mother to be present in the courtroom while her child is in fact
testifying.

     [Defense Counsel]?

        [DEFENSE COUNSEL]:                 Your Honor?

        THE COURT: Yes, sir?

          [DEFENSE COUNSEL]:             To make it clear, none of my
client’s family are allowed to be here during - -

         THE COURT: The testimony of the child. Of the child. Only
the child.

        [DEFENSE COUNSEL]:                 - - the testimony of the child.

        THE COURT: Yes, sir.

         [DEFENSE COUNSEL]:                And they’re not allowed to stay
here for this hearing.

         THE COURT: Not for this hearing while the child is
testifying, that’s true.

       [DEFENSE COUNSEL]:            Even his mother? We couldn’t
compromise and have my client’s mother?

        THE COURT: No, sir.

           [DEFENSE COUNSEL]:          Some of these people won’t be
here anyway because they’re just - - they’re actually going to testify at
the trial.

         THE COURT: [Defendant] has certain rights, [Defense
Counsel]. He has the right to be present during all critical stages of the
proceedings. I don’t know of anything under Tennessee law that
indicates that family members have a right to be present when the Court
has ruled, as I have in this case, that the Court will in fact make those
accommodations, which the courts across the country have made. And

                                  - 39 -
again, that’s the Court of Criminal Appeals indicates it’s within - - the
Supreme Court - - it’s within the sound discretion of the trial court. And
I do find, as indicated earlier, that the motion by the State in which
they’re asking the Court to allow this courtroom to be void of any
pressures, any - - any outside influences, that it is within the sound
discretion of the trial court to allow those procedural accommodations
for child witnesses. And that is the trend not only in this state but
nationwide. And the courts have indicated that the trial court’s decision
on how to structure its own procedures will not be disturbed unless it is
in fact a clear abuse of discretion.

      So I’m finding that there is nothing in Tennessee or federal law that
would indicate that a defendant’s family members have a right to be
present at all stages of the trial and have a right to be present when all
witnesses are testifying. And I do find that the motion for the State is in
fact well taken. It is not prejudicial to [Defendant] at all to not have his
family members present in court when a seven-year-old child who’s at
the age of - - this offense I believe is 2013, if I remember the indictment
correctly. This child would have been three or four, four years of age
when this allegedly occurred. And it is not prejudicial to [Defendant].
December 6, 2013 through December 8, some three years ago. The child
is now seven, would have been four at the time this offense allegedly
occurred. Is not prejudicial at all to [Defendant] to tell him that his
family members cannot be present in court when that child, alleged child
victim, is in fact testifying. So probative value, and to say, “I want my
family here when all people testify” is just simply not a right that he has.
He has a right to be present himself, does not have a right to say, “Judge
Coffee, I want family members present.”

      I, again, will note the exception for the exception for the record but
will grant the State’s request that when this child is testifying, either in
this hearing or at trial, that they will not be allowed to be present in court
unless they’re shown to be necessary parties to this lawsuit or necessary
witness pursuant to [Rule] 615 . . . . Otherwise, all other folks will be
excluded from this courtroom. And that other than the lawyers, the
defendant, court personnel, and the child and any other folks that would
be excluded pursuant to Rule 615, everyone else will in fact be excluded.

          [DEFENSE COUNSEL]:                 But they’re allowed to be here at
all other times?

         THE COURT: Yes, sir, absolutely.


                                    - 40 -
                  [DEFENSE COUNSEL]:               So they’re allowed to be present
        at all times other than while the child is testifying?

                 THE COURT: Absolutely. Yes, sir.

      At the conclusion of additional motions in limine heard on the first day of trial,
prior to testimony of the State’s first witness (the victim’s mother), the trial court
reiterated its prior ruling for the courtroom to be cleared during the victim’s testimony.
The trial court stated,

                  THE COURT: I have no idea the order in which the State
        intends to put their proof on, but when the child is called as a witness, as
        indicated Monday, all parties that are not necessary, [Defendant],
        lawyers, court personnel, support personnel the Court has excluded from
        the rule, once the child is called or before the child is called as a witness,
        the courtroom will be cleared of all folks that are not necessary to be in
        court when the child is in fact called to testify.

     Just prior to the victim being called as a witness, the following exchange transpired:

                 THE COURT: Anything else we need to address before we
        bring in the jury?

                 [ASSISTANT DISTRICT ATTORNEY]: Your Honor, would
        it be okay if we went ahead and brought the victim and her family in
        here so we don’t have to go get them while the jury’s coming in.

                 THE COURT: Yes, ma’am. Ask her to step in, please - -

                 [DEFENSE COUNSEL]:                  I thought she only asked for the
        victim’s mother.

                 THE COURT: I’m sorry?

                 [DEFENSE COUNSEL]:            I thought they asked at the
        hearing for the victim’s mother to be here. That’s all you approved for
        them to have if they’re making all the defendant’s family be out of the
        courtroom.

                  THE COURT: [Defense counsel], I don’t know what - - what
        other family members or court members the State wants to have in court
        for this child. Whether it’s the mother or two people or three people, the
        rulings are the same. As I indicated earlier, the Court has to make those

                                            - 41 -
        reasonable accommodations. It’s not prejudicial to [Defendant]. It is not
        harmful to [Defendant]. And again, there’s absolutely nothing under the
        law that says that [Defendant] has a right to have his family members
        here. And in fact creates - - it creates an oppressive environment. It
        could create a coercive environment. It could create a threatening
        environment if that child is sitting there on the witness stand looking at
        folks that are and were her relatives, people that she’s probably spent
        time at their house, maybe spent overnight at their house, and have to
        look at them and say “This is what my daddy did to me.” And that’s
        something that’s just - - this Court will not permit in this courtroom.
        And I’ve indicated that his family can be here for everything other than
        this child’s testimony.

             For the record, there are three [sic] people that just walked into the
        courtroom. [The victim], her mother, and two other people.

      The Sixth Amendment to the Constitution of the United States, made applicable to
the various individual states by the Fourteenth Amendment to the Constitution, states in
pertinent part that, “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.” (emphasis added). Similarly, the Constitution of Tennessee,
Article I, section 9, provides in pertinent part, “That in all criminal prosecutions, the
accused hath the right to . . . a speedy public trial.” (emphasis added). We initially note
that the issue in the case sub judice involves only Defendant’s right to a public trial
pursuant to the above quoted requirements of the Constitutions of the United States and
Tennessee.

      A strict interpretation of these provisions in the United States Constitution and in
the Constitution of Tennessee would necessarily conclude that there are no exceptions to
a criminal defendant’s right to a public trial. However, as with several constitutional
rights, courts of last resort have written exceptions to the criminal defendant’s right to a
public trial. See Waller v. Georgia, 467 U.S. 39 (1984).

     This issue presented by Defendant does not involve the constitutional rights of the
public and/or the media to be present at trial proceedings pursuant to “a qualified First
Amendment right to attend a criminal trial.” Waller, 467 U.S. at 44. (citing Globe
Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (1982) and Richard
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). (emphasis added).

      It is important to emphasize the following quote from Waller as it pertains to the
issue presented by Defendant. The Supreme Court’s unanimous opinion states:

             As noted, the analysis in these cases has proceeded largely under
        the First Amendment. Nevertheless, there can be little doubt that the

                                           - 42 -
        explicit Sixth Amendment right of the accused is no less protective of a
        public trial than the implicit First Amendment right of the press and
        public. The central aim of a criminal proceeding must be to try the
        accused fairly, and “[o]ur cases have uniformly recognized the public-
        trial guarantee as one created for the benefit of the defendant.” Gannett
        [Co. v. Pasquale], 443 U.S. [368,] 380, 99 S.Ct. [2898,] 2905 [(1979)].

                     The requirement of a public trial is for the benefit of
               the accused; that the public may see he is fairly dealt with
               and not unjustly condemned, and that the presence of
               interested spectators may keep his triers keenly alive to a
               sense of their responsibility and to the importance of their
               functions. . . . Ibid. (quoting In re Oliver, 333 U.S. 257,
               270, n.25, 68 S.Ct. 499, 506, n.25, 92 L.Ed. 682 (1948), in
               turn quoting T. Cooley, Constitutional Limitations 647 (8th
               ed. 1927)).

        In addition to ensuring that judge and prosecutor carry out their duties
        responsibly, a public trial encourages witnesses to come forward and
        discourages perjury. See In re Oliver, supra, at 270, n. 24, 68 S.Ct. 499,
        506, n. 24, 92 L.Ed. 682; Douglas v. Wainwright, 714 F.2d 1532, 1541
        (11th Cir. 1983), cert. pending, Nos. 83-817, 83-995; United States ex
        rel. Bennett v. Rundle, 419 F.2d 599, 606 (CA3 1969).

Waller, 467 U.S. at 46.

       Waller involved the trial court’s ruling which closed to the public, over the
defendant’s objection, an entire pre-trial suppression hearing. The Court held that the
trial court erred and that it was structural constitutional error when the defendant did not
have to prove specific prejudice in order to obtain relief. Id., 467 U.S. at 47-48. We note
that due to the fact that the constitutional violation in Waller occurred during a
suppression hearing and not during the trial, the Court limited the relief to which the
defendant was entitled. The Court ordered a new suppression hearing, with a new trial
granted only if the new suppression hearing resulted in evidence being suppressed that
was not suppressed at the prior trial, or if the results of the new hearing materially
changed the parties’ positions. Id., 467 U.S. at 49-50.

      The Waller Court held, after noting that the “aims and interests,” Id., 468 U.S. at 46,
of a public trial are not less in a pre-trial suppression hearing, that

        in sum, we hold that under the Sixth Amendment any closure of a
        suppression hearing over the objections of the accused must meet the


                                           - 43 -
        tests set out in [Press-Enterprise Co. v. Superior Court of California,
        464 U.S. 501 (1984)] and its predecessors.

Waller, 467 U.S. at 47.

       The Waller Court reiterated that under Press-Enterprise Co., the party seeking a
closure of “the hearing,” Id., 467 U.S. at 48, must meet the following tests:

               [1]   the party seeking to close the hearing must advance an
                     overriding interest that is likely to be prejudiced,

               [2]   the closure must be no broader than necessary to protect that
                     interest,

               [3]   the trial court must consider reasonable alternatives to
                     closing the proceeding, and

               [4]   it must make findings adequate to support closure.

       In State v. Sams, 802 S.W.2d 635, (Tenn. Crim. App. 1990), this court reversed
the defendant’s convictions of two counts of aggravated rape, one count of rape, and two
counts of sexual battery and remanded the cases for a new trial. The basis of the reversal
was that the defendant was denied a public trial when the State, after the trial had begun,
subpoenaed all members of the defendant’s family attending the trial in order to exclude
them from the courtroom under the rule of sequestration. Sams, 802 S.W.2d at 640-41.
See Tennessee Rule of Evidence 615. This court stated that the prosecutor’s motive to
remove the defendant’s relatives from the courtroom during the trial was obvious. Sams,
802 S.W.2d at 640. The court stated

              [The prosecutor] did not want the victims, the appellant’s children,
        to face their relatives during their testimony. As a result, the safeguard
        that attempts to improve the quality of testimony by discouraging perjury
        and abusiveness was seriously impaired. In cases of this nature, a
        victim’s knowledge that family members are in the courtroom constitutes
        the strongest safeguard an accused can have against perjured or abusive
        testimony.

Id. at 640-41 (emphasis added).

        This court also concluded that the prosecutor, by his statements in court, made it
“crystal clear that he used the subpoena power of the trial court as a subterfuge for
excluding the appellant’s relatives from the courtroom. [The prosecutor] had no intention
of calling these individuals as witnesses.” Id., 802 S.W.2d at 637. None of the family

                                          - 44 -
members subpoenaed by the prosecutor were called as witnesses. Id. at 641. The court
concluded that the prosecutor “did not hesitate to trample the constitutional rights of the
appellant to gain a tactical advantage.” Id., 802 S.W.2d at 641. The only reason given by
the prosecutor for issuing the subpoenas during a lunch break for the defendant’s family
members was that it had been reported to him that when a witness (one of the victims)
testified before lunch, the defendant’s grandmother and those people seated behind
defendant were talking loudly. Id. at 636. The trial court did nothing while this allegedly
occurred, indicating the judge did not hear any talking. Id. The defense attorney stated
that he heard no talking. The prosecutor did not hear it because he stated to the trial court
that it was brought to his attention by a spectator. Id. The prosecutor, after announcing
the subpoenas had been issued during the lunch break for the defendant’s grandmother,
two aunts, brother, and stepmother, requested that they be required to leave the courtroom
because the defendant had “asked for the rule [of witness sequestration].” Id.

       As set forth at the outset of the discussion of this issue, Defendant implicitly
acknowledges that he must seek relief pursuant to the doctrine of plain error. The issue
involving a constitutional violation by denial of a public trial, while objected to by
Defendant at trial, was not included in his motion for new trial. Tenn. R. App. P. 3(e) (In
all cases that are tried by a jury, as to all issues wherein the defendant seeks a new trial,
an issue must be included in a motion for new trial or it is treated as waived). Not
surprisingly, the State argues on appeal that Defendant is not entitled to relief pursuant to
plain error review. Yet, the State acknowledges in its brief that

        [i]f the defendant had properly raised this issue in his motion for new
        trial and demonstrated a violation of the right to a public trial, prejudice
        requiring reversal would be implied. See State v. Bowman, 327 S.W.3d
        69, 91 (Tenn. Crim. App. 2009) (noting that structural errors, like denial
        of a public trial, require automatic reversal when they occur).

       Tennessee Rule of Appellate Procedure 36(b) provides in part that

        [w]hen necessary to do substantial justice, an appellate court may
        consider an error that has affected the substantial rights of a party at any
        time, even though the error was not raised in the motion for a new trial
        or assigned as error on appeal.

       We agree with Defendant and grant relief pursuant to plain error review.

      The law is well settled in Tennessee that before a defendant is entitled to relief
under plain error review, all five of the factors set forth in State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994), must be established. State v. Smith, 24 S.W.3d
274, 282-83 (Tenn. 2000). Also, the “‘plain error’ must [have been] of such a great


                                           - 45 -
magnitude that it probably changed the outcome of the trial.’” Id. at 283 (quoting
Adkisson, 899 S.W.2d at 642).

       The Adkisson factors are:

        (a) the record must clearly establish what occurred in the trial court;
        (b) a clear and unequivocal rule of law must have been breached;
        (c) a substantial right of the accused must have been adversely affected;
        (d) the accused did not waive the issue for tactical reasons; and
        (e) consideration of the error is necessary ‘to do substantial justice.’

Id. at 282.

      The State argues that there is no breach of a rule of law because the trial court
complied with the factors in Waller, set forth above. We disagree with the State.

        The Waller factors are in reality judicially created exceptions to the constitutional
right that the accused has to a public trial. Review of each factor illustrates that the first
factor was not met for multiple reasons. First, the State submitted absolutely no
evidence, testimonial or other type, to support its assertion that an order denying
Defendant a public trial during the victim’s testimony was necessary to protect an
overriding interest that would be otherwise prejudicial to the State. This court in Sams, in
an identical situation, stressed the importance of a constitutionally mandated public trial,
especially as to the defendant’s family members. Statements by the prosecutor as to the
victim’s being uncomfortable with Defendant’s family members present are all that was
relied upon by the trial court. It is well settled that statements by attorneys in such
situations are not evidence. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.
1988). Furthermore, even if all “facts” relied upon by the trial court had been submitted
by admissible evidence, it would not establish enough evidence by the State to meet its
burden under the first factor in Waller in light of Sams.

        The State also cannot establish the third Waller factor, that the trial court must
consider reasonable alternatives to the closure of the trial. This was not done by the trial
court. The State argues that the trial court somehow met this requirement by the court
acknowledging the fact that Shelby County courtrooms are not set up for remote closed
circuit testimony by a victim outside the courtroom, so that option was not available.
This argument is misplaced for two reasons. First, it is obvious that a “reasonable
alternative” to closure of the trial must actually be available in order to meet the
requirement of Waller’s third factor. Second, it is apparent through the trial court’s
comments in its ruling that the court was focusing on Defendant’s Sixth Amendment
right to confrontation rather than his constitutional right to a public trial. Such comments
include: (1) “And our courts have held it is not a violation of a defendant’s right to
confrontation if the defendant is in the courtroom, the victim is testifying in another

                                            - 46 -
room. . . .”; (2) concluding no prejudice to Defendant to exclude all members of the
public when the victim testifies, “[Defendant] has the right to confront, has a right to be
present during all the questioning of this victim.” (3) “nothing in the Tennessee or
federal law that would indicate that a defendant’s family members have a right to be
present at all stages of the trial and have a right to be present when all witnesses are
testifying . . . .” “[Defendant] has a right to be present himself, does not have a right to
say, ‘Judge Coffee, I want my family members present.’”

       Sams makes it clear that closing the courtroom during a victim’s trial testimony
because of the victim’s reluctance to testify in the presence of a defendant’s family
members defeats the purpose of the accused’s constitutional right to a public trial. Sams,
802 S.W.2d at 640-41 (“[The prosecutor] did not want the victims, the appellant’s
children, to face their relatives during their testimony. As a result, the safeguard that
attempts to improve the quality of testimony by discouraging perjury and abusiveness
was seriously impaired.”).

       By focusing on Defendant’s constitutional right to confrontation of witnesses
against him, and implicitly basing its ruling in substantial part on Defendant’s family
members not having a right of confrontation, the trial court totally failed to address the
issue of excluding all members of the public from the courtroom during the victim’s trial
testimony in light of Defendant’s constitutional right to a public trial. It is error to
deprive a defendant of the right to a public trial based upon the fact the constitutional
right to confront witnesses does not apply to members of the public, including
Defendant’s family. It defies logic to come up with “reasonable alternatives” to closing
to the public any portion of a trial when it is clear that the trial court granted the State’s
motion to close any part of the trial proceedings based upon the wrong constitutionally
protected right.

       As to the second Waller factor, the closure of trial proceedings was a complete
closure of all members of the public except the victim, the attorneys, court staff, and
persons requested by the victim. It is evident to this Court that the State’s motion for the
closure was erroneously granted based upon: (1) no evidence being submitted; (2) if
evidence supporting the “facts” relied on by the trial court had been submitted, it still
would not have met the first factor in Waller; and (3) the trial court failed to address
Defendant’s right to a public trial. Under these circumstances, no closure at all is
necessary or allowable.

       Finally, Waller’s fourth factor, that the trial court must make findings adequate to
support closure, it is clear that findings of fact must be based upon some type of proof.
Assertions by a prosecutor during argument of a motion cannot suffice to justify any
exception to constitutional rights. Roberts, 755 S.W.2d at 836. Proof could be, but not
limited to, testimony, medical evidence, or psychological evidence. Even then,
reasonable alternatives to closure that could be considered would be allowing a guardian

                                            - 47 -
of the victim to sit with the child, using a qualified courtroom canine for witness comfort,
or other tools and accommodations suggested by Defendant or the State. The statements
made by the prosecutor specifically about the victim to support the motion to close the
courtroom during the victim’s testimony are: (1) the victim is seven years old and
extremely shy; and (2) the victim is reluctant to testify in the presence of people whom
she does not know. At the outset of Defendant’s objection to closing the courtroom, the
trial court, without permitting any argument by defense counsel, proceeded to address the
motion for closure, taking approximately five pages of transcript, and concluded by
granting the motion to close the courtroom during the victim’s testimony.

       The trial court stated in the third sentence, “I have not seen the seven-year-old
child in this case.” During its ruling, the trial court added, “[a]nd what I’m told is that the
child is very sensitive, very, very uncomfortable.” The trial court subsequently added
that it could not say that members of Defendant’s family should be allowed in the
courtroom “when I’m told that the victim, alleged victim, witness would be very
uncomfortable in looking at certain people while she is testifying.”

        The State’s motion for admissibility of the victim’s forensic interview was heard
after the motion to close the courtroom was granted, but on the same day. The victim
testified during that hearing. Her testimony comprised two pages of the testimony, and it
primarily involved her confirming that she was in the forensic interview video, that she
told the truth during the interview, and that she remembered the events described and
could answer questions about them. The trial court gave information to the victim about
the proceedings at the trial.

        Arguments on Defendant’s motion not to allow the video of the forensic interview
to be admitted as evidence were heard immediately following the State concluding its
proof in support of admission into evidence of the forensic interview. In its ruling
granting the State’s motion to allow the forensic interview to be played for the jury, the
trial court made findings of fact. Interestingly, after having seen the forensic interview
and the victim’s testimony in court, as well as the lengthy colloquy with the victim in the
witness chair, the trial court included the following findings of fact specifically
concerning the victim:

               She is, at the age of four, and at the age of seven right now, she is
        a very mentally and physically mature child. It’s amazing that she was
        able to tell Teresa Onry in December of 2013 with a clear mind, clear
        memory, and to relate those things clearly and without hesitation
        questions that she was asked and answers that she provided. This is a
        very precocious four-year-old child and very physically and mentally
        mature at the age of four.



                                            - 48 -
       This finding of fact, based upon evidence presented in court, actually weighs
against the trial court’s conclusion that Defendant’s right to a public trial must be denied
during the victim’s testimony.

         Based on all of the above, we conclude that the trial court committed structural
constitutional error by granting the State’s motion “[t]hat the courtroom be closed to the
media and all persons who are not required by law or requested by the child to be present
in the courtroom during the child victim’s testimony.”

      As set forth above, in order to obtain relief from the trial court’s error, Defendant
must first satisfy all of the five Adkisson factors. At this point, it is prudent to repeat
them here:

    (1) the record must clearly establish what occurred in the trial court;
    (2) a clear and unequivocal rule of law must have been breached;
    (3) a substantial right of the accused must have been adversely affected;
    (4) the accused did not waive the issue for tactical reasons; and
    (5) consideration of the error is necessary to do substantial justice.

     The State challenges Defendant’s request for relief under plain error based upon
Defendant’s failure to establish factors (2), (3), and (5). The State does not challenge
applicability of factors (1) and (4). It is obvious that the record clearly establishes what
occurred in the trial court (factor (1)) and that Defendant did not waive the issue for
tactical reasons (factor (4)). There cannot logically exist, based on the record, waiver of
the issue for tactical reasons. Defendant objected to and opposed the State’s motion at
the hearing, he argued against it as much as the trial court would permit, the objection
was noted by the trial court, and the only reason it is before us for plain error review is
that the issue was somehow omitted from a written motion for new trial that comprises
ten pages in the record. Once an objection is properly made in the trial court, generally
there can be no reasonable strategy to waive an issue for tactical reasons by omitting it in
a motion for new trial.

       Thus, we will address the State’s arguments that factors (2), (3), and (5) of
Adkisson were not established by Defendant. Initially, the State points out that three
witnesses who testified on his behalf would have been excluded under the witness
sequestration rule, Tennessee Rule of Evidence 615, even if the courtroom had not been
cleared during the victim’s testimony. The witnesses were one of the Defendant’s
grandmothers, Defendant’s girlfriend, and a sister of Defendant. During the motion
hearing on the day prior to trial, Defendant’s counsel mentioned that Defendant’s mother
desired to be present during the trial. She did not testify at trial. The State cites no
authority which would allow an exception to the constitutional right of a public trial
simply because some family members and/or friends of a defendant are required to be
outside of the courtroom pursuant to Rule 615. Also, since the State failed to present any

                                           - 49 -
evidence pertaining to its motion, indicating the specific persons whose presence in the
courtroom during the victim’s testimony would prejudice the State, the State’s argument
that three defense witnesses would be excluded from the courtroom anyway, has no
relevance to the issue presented.

       The State argues that Defendant failed to show that a clear and unequivocal rule of
law was breached. In support of its assertion, the State submits that the trial court
complied with the Waller factors. We have already concluded that the trial court failed to
comply with the Waller factors, and this argument by the State is accordingly without
merit. We note that the United States Supreme Court case cited by the State, Globe
Newspaper Co. v. Superior Court, 452 U.S. 596 (1982), is a case addressing the First
Amendment right of the media to attend a trial, not the right of a defendant in a criminal
case to have a public trial pursuant to the Sixth Amendment. The case involved a
criminal trial wherein the defendant was acquitted, and the appellant was Globe
Newspaper Co. which challenged a Massachusetts statute, Massachusetts Gen. Laws
Ann., ch. 278 § 16A (West 1981) that mandated that in the trials of certain designated sex
offenses where the victim is a minor, the court shall exclude the general public from the
courtroom. In another case relied upon by the State, Geise v. United States, 262 F.2d 151
(9th Circ. 1958), the order of closure of trial proceedings had several exceptions to it,
including the relatives and close friends of the criminally accused defendant, members of
the press, and relatives and close friends of the victim. Id. at 155. These groups include
the specific groups the State sought to exclude from the courtroom in the case sub judice.

        The State relies upon Weaver v. Massachusetts, 137 S.Ct. 1899 (2017), in support
of its argument that Defendant failed to establish the Adkisson factors that: a substantial
right was adversely affected, and that consideration of the error is necessary to do
substantial justice. Again, the constitutional right under consideration is the right to a
public trial guaranteed by both the United States and the Tennessee constitutions. If a
violation of it is found, structural constitutional error results, prejudice is implied and
automatic reversal is required. State v. Bowman, 327 S.W.3d 69, 91 (Tenn. Crim. App.
2009).

       The State insists that Weaver prohibits relief to Defendant in the case sub judice
under the plain error doctrine. The State draws upon Weaver’s holding to argue that
Defendant is foreclosed from relief because Defendant “fails to prove the probability of a
different outcome [other than conviction], or that his trial was fundamentally unfair.”
However, in its brief the State acknowledges that Defendant asserted his Sixth
Amendment constitutional right as an accused to have a public trial, in both the trial court
and on appeal, and that a violation of the right to a public trial, if addressed by the
appellate court, requires automatic reversal as set out in Bowman.

       The State even asserts that Defendant failed to “offer any argument regarding
prejudice when asked by the trial court.” This assertion is misplaced. It is correct that

                                           - 50 -
the trial court made the following statement in open court: “you [defense counsel] have
to articulate or tell me why it somehow is prejudicial to [Defendant] if his family and
other members are not allowed to be present in court when that child is in fact testifying.”
What the State did not mention is that there was no pause by the trial court to allow a
response, and the trial court continued to talk enough to take up three and one-half pages
of transcript that concludes with the trial court granting the State’s motion before
allowing any argument to be made by trial counsel. Accordingly, the State’s assertion
that Defendant is not entitled to relief because his counsel did not respond to the trial
court’s “invitation” to show prejudice is without merit.

       As to the State’s reliance on Weaver, we conclude that it is misplaced. Weaver
involved review of the denial of a constitutional right to public trial before the court
through an ineffective assistance of counsel claim in a post-conviction proceeding, and
not in a direct appeal from conviction. The issue in Weaver was whether automatic
reversal due to structural constitutional error applied in that context, and its holding is
limited to post-conviction proceedings. Id. 137 S.Ct. at 1905 (“The question is whether
invalidation of the conviction is required here as well, or if the prejudice inquiry is altered
when the structural error is raised in the context of an ineffective-assistance-of-counsel
claim.”).

        Another argument made by the State in support of its assertion that Defendant has
failed to show that his trial was fundamentally unfair is that Defendant did not include the
issue in his motion for new trial. This argument is totally without merit. If every
Defendant who raises an issue under the plain error doctrine was automatically denied
any relief because of the occurrence or non-occurrence of an action that restricts appellate
review to plain error relief, then plain error review would never be available and
Adkisson and Smith would in effect be abrogated.

       Directing our attention to the three Adkisson factors challenged by the State, we
conclude that all three (plus the two not challenged by the State which we have already
concluded have been shown) have been shown such that Defendant is entitled to relief
under the plain error doctrine.

       Our conclusions above establish that the constitutional right to a public trial (a
clear and unequivocal rule of law) was breached. The trial court excluded from the
courtroom everyone except court staff, the attorneys, the victim’s mother, and two other
adults requested by the victim during the victim’s testimony. The trial court made
findings of fact which the record shows were based solely upon argument by the
prosecutor without even a shred of evidence presented. Furthermore, the trial court’s
statements indicate that it made its ruling based upon considerations involving the Sixth
Amendment right of a defendant to confront witnesses and not upon the issue raised - the
Sixth Amendment right of the accused to a public trial. The trial court’s erroneous ruling
plainly and adversely affected Defendant’s substantial right to a public trial, an error that

                                            - 51 -
is a structural constitutional error requiring automatic reversal. If this Court refuses to
address the structural constitutional error because it was omitted from the motion for new
trial, even though a proper objection was made which alerted the trial court to the
possibility that the State’s motion should be denied, substantial justice, to both Defendant
and our judicial system, would be denied. Accordingly, review is necessary.

       Finally, the State argues that the error fails to satisfy the factor that it probably
changed the outcome of the trial. Smith, 24 S.W.3d at 283. In its brief, as noted above,
the State concedes “If the defendant had properly raised this issue in his motion for new
trial and demonstrated a violation of the right to a public trial, prejudice requiring
reversal would be implied.” (citing Bowman, 327 S.W.3d at 91) (emphasis added).

        We have concluded that there was a violation of the right to a public trial pursuant
to Sams and that the Waller factors were not established. As shown in the record, the
trial court was firm in its opinion that the State’s motion to close the courtroom must be
granted despite Defendant’s objection. Obviously, reiterating the objection in a motion
for new trial filed after the conclusion of the trial could not affect the Court’s ruling
during the trial.

        At the hearing on the motion for new trial, the State’s entire argument was,
“Judge, the State’s position is that there were no errors made in Your Honor’s rulings at
trial and that the motion for new trial should be denied.” Also, prior to addressing any of
the issues included in the motion for new trial, the trial court stated,

               And, for the record, all of these issues were addressed in pretrial
        motions and at trial and I will incorporate the findings that the court
        made. Motions heard in this case on Monday, July 18, 2016, [which
        includes the State’s motion to close the public from the courtroom] will
        incorporate the rulings that the court made in the pretrial hearing.

        Our review of the trial court’s rulings on the issues in the motion for new trial
reflect that the trial court reiterated all the same reasoning he made pre-trial and during
the trial. To this court there is absolutely no doubt that had the motion for new trial
included the ground that, “the trial court erred and violated Defendant’s constitutional
right to a public trial during the victim’s testimony,” the trial court would have denied it
based upon its earlier rulings.

       Even if a showing that the error “probably changed the outcome of the trial,”
Smith, 24 S.W.3d at 283, is applicable when the error is structural constitutional error, the
error would definitely change the ultimate outcome of the trial in this direct appeal if
included in the motion for new trial. Under all the circumstances reviewed, we conclude
that Defendant has established all of the Adkisson factors and is entitled to automatic
reversal and a new trial.

                                           - 52 -
        For the same reasons, it was structural constitutional error for the trial court to
close the pre-trial motion hearing during the victim’s testimony (in addition to doing so at
trial), which is also, for the same reasoning, determined on plain error review.

                                         CONCLUSION

        The judgments of the trial court are reversed, and the case is remanded for a new
trial consistent with the opinion of this court.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




                                           - 53 -
