        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 26, 2011

                 STATE OF TENNESSEE v. DARYL J. CARTER

               Direct Appeal from the Circuit Court for Bledsoe County
                        No. 36-2005    J. Curtis Smith, Judge


               No. E2010-01193-CCA-R3-CD - Filed February 14, 2012


The defendant, Daryl J. Carter, was convicted after a trial by jury of one count of rape of a
child, a Class A felony. The defendant appeals his conviction, claiming that the trial court
erred by denying his motion to suppress a statement made to police and by prohibiting his
defense counsel from cross-examining the defendant’s ex-wife concerning her love life. In
addition, the defendant claims that the evidence is insufficient to support his conviction and
that the prosecution engaged in misconduct during its closing argument. After reviewing the
record and the arguments of the parties, we conclude that: (1) the trial court did not err by
declining to suppress the defendant’s pretrial statement; (2)the trial court did not abuse its
discretion by limiting the defendant’s cross-examination of his ex-wife; and (3) the evidence
is sufficient to support his conviction. While we agree with the defendant that the prosecutor
made an inappropriate statement in his closing argument, we do not believe that this
inappropriate statement prejudiced the defendant to the degree necessary to warrant the
reversal of his conviction. The judgment of the trial court is accordingly affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, J., joined. D AVID H. W ELLES, S P. J., not participating.

Philip A. Condra, District Public Defender, and B. Jeffrey Harmon, Assistant Public
Defender, for the appellant, Daryl J. Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James Michael Taylor, District Attorney General; and James W. Pope, III, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
       The defendant was indicted on July 25, 2005, in Bledsoe County, Tennessee, on one
count of rape of a child in violation of Tennessee Code Annotated section 39-13-522(a). The
gravamen of the indictment was that on January 10, 2005, the defendant intentionally
sexually penetrated the victim,1 his two-year-old adopted daughter.

        Prior to trial, the defendant moved to suppress certain statements that he made to
police on April 20, 2005, on the grounds that they were obtained in violation of his rights
under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and
their counterparts contained in the Constitution of Tennessee. The defendant claimed that
these statements – made following a polygraph examination – were obtained after he asserted
his right to counsel and that the police continued to interrogate him following this assertion.
In addition, the defendant claimed that he gave his statements to the police and provided
them with a drawing of his hand only after having been falsely promised that he would not
be arrested and that, after undergoing counseling, he would be reunited with his family. The
defendant claimed that the statements he gave were involuntary because he relied on these
false promises. On February 27, 2006, the trial court held a hearing on the defendant’s
motion to suppress, at which the following evidence was presented:

        The State presented the testimony of Special Agent Malcolm Elrod of the Tennessee
Bureau of Investigation (“TBI”). Agent Elrod testified that he had been employed with the
TBI since 1994, and that, prior to that time, he was a criminal investigator for the United
States Army for twenty years. Agent Elrod testified that he was a licensed polygraph
examiner and that his duties primarily related to performing polygraph examinations. Agent
Elrod testified that he performed a polygraph examination on the defendant on April 20,
2005, at the Bledsoe County Sheriff’s Office. He testified that he met and spoke with the
defendant for approximately forty-five minutes before performing the exam. He testified
that, during this time period, he introduced himself to the defendant and advised him of his
Miranda rights. He also had the defendant complete a personal information form, a waiver
of his Miranda rights, and a polygraph consent form. These forms were shown to the witness
and then entered into evidence. Afterward, Agent Elrod testified that he generally explained
the polygraph process and went through all the questions he was going to ask the defendant.

        Agent Elrod testified that after finishing these preliminaries, he administered a


        1
          It has been our policy to refer to the child victims of sex offenses by their initials. In this case, we
have decided to protect the identity of the victim further by omitting her initials. We will refer to the victim
simply as such, and identify members of the victim’s family only by their relationship to her.



                                                       -2-
polygraph examination to the defendant. He analyzed those answers and produced a report
based on the examination that he administered. According to Agent Elrod, the defendant
showed deception with respect to three answers. The witness then identified his report, and
that report was entered into evidence. Agent Elrod testified that after completing the
examination, he told the defendant that he did not believe that the defendant was being
truthful and that he believed that something had happened between the defendant and his
daughter. After being told this, Agent Elrod testified that the defendant admitted that he had,
in fact, put his finger inside the victim’s vagina.

        Agent Elrod testified that he traced the defendant’s hand onto a piece of paper and had
the defendant identify the portion of his hand that had entered into the victim’s vagina on that
tracing. Agent Elrod identified this tracing, and it was entered in the evidence. Agent Elrod
testified that the tracing contained a line that showed how far the defendant claimed that he
had stuck his middle finger into the victim’s vagina and a notation stating that the defendant
claimed that his finger was inside the defendant’s vagina for four or five seconds. The
drawing was signed by the defendant.

       Agent Elrod testified that, during this period of time, the defendant appeared to be
remorseful but also upset at “having to say out loud” what he had done. Agent Elrod testified
that he did not issue any threats or make any promises to the defendant at any point before,
during, or after administering the polygraph. Agent Elrod also testified that the defendant
never requested a lawyer or asked that anyone contact his lawyer. Agent Elrod testified that
Investigator Seals, an officer with the Bledsoe County Sheriff’s Office, came into the room
at some point after Agent Elrod and the defendant finished working on the drawing. Agent
Elrod testified that he left when Officer Seals came into the room.

        On cross-examination, Agent Elrod testified that although he describes himself as a
neutral agent when he administers a polygraph examination he actually administers
polygraph examinations for the purpose of helping law enforcement. He testified that his
purpose on that day was not to interrogate the defendant and that, if the defendant had passed
the test, he would not have interrogated him. Agent Elrod testified that he is trained in the
art of interrogation and that once he concludes that a test has indicated deception, he
considers himself to no longer be neutral, but an interrogator. Agent Elrod stated that at no
point before, during, or after the examination did he ask the defendant if the defendant would
like to have someone in the room as a witness.

       Agent Elrod testified that a polygraph examination is a subjective evaluation but that
his conclusion that the defendant was being deceptive was based entirely on the subject’s
skin galvanization as recorded by the machine and not on anything he observed about the
defendant personally during the interrogation. Agent Elrod testified that only three relevant

                                              -3-
questions were asked during the entire examination and that all of the other questions that
he asked during the examination were used solely for comparison purposes. Agent Elrod
clarified that these three relevant questions were ones on which his analysis indicated that
the defendant was practicing deceit with respect to his answers.

        Agent Elrod testified that after he informed the defendant that he believed the
defendant was practicing deception, they had a conversation that lasted for about forty-five
minutes. In this conversation, he stressed to the defendant that he needed to tell the truth
regarding what had happened to the little girl. Agent Elrod testified that roughly ten to
fifteen minutes after he confronted the defendant regarding his test results, the defendant
admitted that he digitally penetrated the victim. Agent Elrod testified that the defendant did
not ask for an attorney at any point during this time. Agent Elrod testified that it was TBI
policy not to videotape or record polygraph examinations and that the examination and his
subsequent interview with the defendant were not videotaped or recorded. Agent Elrod
testified that he could not recall if the defendant had ever asked him whether or not he would
go to jail or whether or not his children would be returned to him.

       On redirect examination, Agent Elrod testified that he was not wearing a uniform or
carrying a gun on the day in question and that the atmosphere before, during, and after the
examination was very congenial. Agent Elrod testified that it is his policy to end a polygraph
examination if a subject mentions to him that he wants a lawyer. On recross-examination,
Agent Elrod testified that if a subject asks him whether or not he thinks they need a lawyer
during the polygraph examination, it is his policy to state that the decision is entirely up to
the person asking the question and that he cannot assist the person in making that decision.
Agent Elrod testified that the defendant asked no such question during his examination.

      After receiving Agent Elrod’s testimony, the court concluded its hearing on the
defendant’s motion to suppress and continued proceedings. At a preliminary hearing on
March 6, 2006,2 the trial court took additional evidence that was relevant to the defendant’s
motion to suppress.

       The State presented the testimony of Investigator Ricky Seals of the Bledsoe County
Sheriff’s Department. Investigator Seals testified that on January 14, 2005, he began an
investigation concerning a possible rape of a two-year-old child. On that day, Investigator
Seals interviewed the defendant – who was married to the victim’s mother – at their
residence in Brockdale. Investigator Seals testified that the defendant was not in custody at


        2
            The record reflects that the defendant was afforded this additional preliminary hearing (held
outside of its normal sequence in the criminal process) because there was some difficulty concerning the
transcript from an earlier proceeding.

                                                  -4-
the time. During this initial interview, Officer Seals testified that he asked the defendant
what had transpired on January 10, 2005. The defendant essentially responded that he did
not know what had happened to the victim. Some weeks later, Investigator Seals scheduled
a polygraph examination for the defendant, and that examination was conducted on April 20,
2005, at the Bledsoe County Sheriff’s Department. Officer Seals testified that the defendant
showed up voluntarily to the examination, which was performed by Agent Elrod of the TBI.

        Officer Seals testified that following the polygraph examination, he was informed that
the defendant wanted to give him a statement. Officer Seals testified that prior to giving that
statement, the defendant was not in custody and was free to leave at any time. Officer Seals
testified that prior to receiving a statement from the defendant, he read the defendant his
Miranda rights. He testified that the defendant executed a written waiver of those rights.
Officer Seals testified that, afterward, the defendant gave him a statement in which he
claimed that he had been changing the victim’s diaper when the two of them ended up
wrestling around, that “one thing led to another, and I stuck my middle finger in [the
victim’s] vagina area for second, and only down to the first knuckle, and immediately
removed it, and I did not get an erection or anything.” The defendant further stated that he
picked up the victim and told her that he was sorry and that he loved her. Officer Seals
testified that the defendant stated that he did not know what came over him and that he
became scared and decided to tell the victim’s mother that he did not know what had
happened to the victim. Officer Seals testified that the first portion of the defendant’s
confession was written in his own handwriting, and the second portion of the confession was
written by the defendant. He testified that the defendant signed the confession after both
sections.

       Officer Seals testified that prior to his entering the room, a diagram of the defendant’s
hand had been made by the defendant and Agent Elrod. A copy of the defendant’s written
statement, his executed Miranda waiver, and that diagram were identified by Officer Seals
and entered into evidence. Officer Seals also identified the defendant in open court as the
man who had given the written statement and made the diagram indicating that he had
penetrated the two-year-old child.

        On cross-examination, Officer Seals testified that he did not go to the hospital on the
night of the incident. He testified that he was contacted by the Department of Children’s
Services (“DCS”) in the early hours of that morning and did not meet with the defendant
until later on. He testified that when he was contacted by DCS, he was informed that a child
was going in for emergency surgery. He was later contacted by DCS and informed that the
child had come out of the surgery “okay,” and that DCS had requested that the defendant no
longer participate in visitations with the children. Officer Seals testified that with respect to
possible suspects other than Mr. Carter, he interviewed four or five other people, mostly

                                               -5-
immediate family members. Officer Seals testified that he contacted Agent Elrod about
performing a polygraph examination at some point during his investigation and that he asked
the defendant and his wife to take such examinations. Officer Seals testified that he was not
present when the examination was administered but that at some point Agent Elrod sought
him out and told him that the defendant wanted to make a statement about what had taken
place.

        Officer Seals testified that the defendant did not draw the diagram of his hand in his
presence. He testified that he was unaware of any conversation that may have occurred
between the defendant and Agent Elrod prior to his entering the room. Officer Seals testified
that he had attended several preliminary hearings and child custody hearings involving the
defendant. He testified that he was aware that the treating physicians had described the
victim’s injuries on the night of the incident as severe and was aware that one physician had
described the victim’s vaginal area as appearing like “ground up hamburger meat.” Officer
Seals testified that the defendant’s statement made no mention of bruises around the victim’s
neck or ears, and that he did not question the defendant about those injuries.

        Officer Seals testified that after he took the defendant’s statement, the defendant made
a statement to the effect of “I don’t know how to tell [the victim’s mother].” Officer Seals
testified that he told the defendant that he would go get the victim’s mother and allow the
defendant to tell her. He testified that he brought in the defendant’s wife from another office
and took her to where the defendant was located. He testified that he sat at his desk and told
the defendant’s wife that the defendant had something to tell her. He testified that the
defendant began crying and told his wife that he had done something to her daughter but was
scared and did not know how to tell her what had happened. He testified that following these
statements the defendant and his wife cried for a few minutes, and then the defendant’s wife
got up and told the defendant that she loved him. Officer Seals testified that after this
occurred, he explained to the defendant that he would be charged. On the following day, he
took out a warrant against the defendant for the rape of a child.

       Following this testimony, the trial court found probable cause to exist and the
proceedings for the day were concluded. On March 16, 2006, the court held yet another
hearing at which the defendant testified concerning issues relevant to his motion to suppress.
The defendant testified that he voluntarily spoke with Officer Seals for approximately an
hour on January 15, 2005. During this interview, the two generally discussed various
questions concerning an injury that had been suffered by his adopted daughter. The
defendant testified that, during that interview, he told Officer Seals that he had no
knowledge concerning how the victim had been injured.

       The defendant testified that he contacted an attorney, Mr. Keith Grant, as soon as he

                                              -6-
learned that the children were going to be removed from his home. He testified that he
retained Mr. Grant’s services for purposes of the adjudicatory hearings concerning the victim
as well as a second child that he had with the victim’s mother. He testified that he had
married the victim’s mother on February 10, 2004, and had adopted her daughter soon
thereafter.

       The defendant testified that Officer Seals called on April 19, 2005, and requested that
he take a polygraph examination. The defendant stated that he consented to take such an
examination on the following day. The defendant stated that he showed up for his exam
around 10:00 a.m. and was introduced to Special Agent Elrod. He testified that Special
Agent Elrod asked him a number of preliminary questions, including what he expected to
gain from taking the polygraph. The defendant claimed that he told Agent Elrod that he
hoped to get his children returned back home. The defendant testified that the polygraph
examination itself lasted approximately twenty minutes.

       The defendant testified that after the test was over, he asked Agent Elrod how he had
done. He testified that Agent Elrod told him that there was only one answer that concerned
him, and that was his answer to the question of whether or not the defendant knew what had
happened to the victim. The defendant testified that he told Agent Elrod that the “only thing
he could figure” was that he had injured the victim while cleaning up a dirty diaper. The
defendant testified that Agent Elrod told him that he believed him.

       The defendant testified that Agent Elrod told him that he would not go to jail if he
would just tell him what had happened. Instead, the defendant would simply have to undergo
counseling, and the children would be allowed to come home – although he would have to
move out. The defendant testified that immediately prior to Agent Elrod telling him that he
would not have to go to jail, he stated to Agent Elrod that “well, I want to talk to my
attorney.” The defendant testified that Agent Elrod asked him why, to which the defendant
replied that he did not want to go to jail. The defendant testified that Agent Elrod then
responded that he would not go to jail and that he would have to move out of the house but
would be permitted to have supervised visitations with his children while undergoing
counseling.

        The defendant testified that Agent Elrod told him that he needed to talk to Officer
Seals. The defendant testified that Agent Elrod asked him to put his hand on a piece of paper
and traced around it, and then asked the defendant “which finger?” The defendant testified
that he told Agent Elrod that it was his middle finger. When Agent Elrod asked him how
far inside of the victim his finger had gone, the defendant told Agent Elrod to the end of his
fingernail – but Agent Elrod marked the diagram to reflect that the defendant’s finger had
entered the victim all the way up to the end of his knuckle. The defendant testified that

                                             -7-
Agent Elrod made all of the markings appearing on the diagram – including both arrows, the
line across the finger, and the written phrase “[four to five] seconds.” After doing so, Agent
Elrod informed the defendant that he was going to bring in Officer Seals, and instructed the
defendant to tell Officer Seals everything they had discussed.

        The defendant testified that when Officer Seals arrived, Agent Elrod left the room.
The defendant testified that he told Officer Seals that he thought what had occurred was an
accident but that he did not know for sure. He testified that Officer Seals informed him that
it did not matter whether what had it occurred was “an accident, forcible entry, or neglect of
the parent, it was still rape.”

        While on the witness stand, the defendant was shown and reviewed a copy of the
written statement that Officer Seals had testified that the defendant had given to him on that
day. The defendant testified that the words appearing on the statement were not words that
he had spoken to Officer Seals during his interrogation. The defendant did acknowledge that
he had been given his Miranda warnings, had read his statement, and had signed it. The
defendant testified that he did so only in order to get his children back. He also testified that
he did not want for his wife to be separated from her children and made a point of telling the
officer that she did not have anything to do with what had transpired. He wrote words to this
effect on the bottom of his written statement to make sure they were included.

       On cross-examination, the defendant acknowledged that he had voluntarily spoken
with Officer Seals on January 14, 2005, and that he had not retained counsel at that time.
The defendant testified that he told Officer Seals at that time that he thought the child was
bleeding from some sort of diaper rash. The defendant acknowledged that he agreed to
undertake a polygraph examination during this interview. The defendant testified that after
this interview he retained an attorney and that he and his attorney attended several
depositions taken by doctors who treated his daughter at the hospital on the night in question.
He testified that he discussed the issue of taking a polygraph examination with his attorney
and that his attorney advised him not to take it. The defendant testified that his attorney
communicated to Officer Seals that the defendant did not want to take a polygraph
examination. The defendant testified that he later approached Officer Seals after one of the
depositions and told him that he would be willing to take a polygraph examination.

        The defendant testified that it was his decision whether or not to take the polygraph
examination. The defendant testified that prior to taking the examination he read,
understood, and signed a form waiving his Miranda rights. The defendant acknowledged
that he was asked three questions in the polygraph examination: (1) “Did you put anything
in [the victim’s] butt?” (2) “Did you put your penis in [the victim’s] vagina?” and (3) “Have
you ever fondled [the victim] for sexual gratification?” The defendant testified that he

                                               -8-
answered “no” to each of these three questions. The defendant testified that Agent Elrod
never told him that he was practicing any type of deception with respect to any of the answers
to those questions. The defendant testified that he had no reason to change the story that he
had told Officer Seals other than the fact that he believed that his children were being
neglected by his wife’s father (the person in whose care DCS had placed his children). He
testified that when Agent Elrod told him that he would not have to go to jail, that his wife
would get the children back, that he would only have to go to counseling and serve probation,
and that he would be reunited with his family, he decided to take the deal.

        The defendant further testified on cross-examination that he decided to ask for an
attorney when Agent Elrod mentioned that he had concerns about one question because
Agent Elrod was making him feel uncomfortable. He testified that Agent Elrod told him that
he did not believe the defendant had done anything wrong but that the defendant was just a
“dumb twenty-one year-old kid.” He testified that when he told Agent Elrod that he wanted
an attorney because he was afraid of going to jail, Agent Elrod told him that “the only way
you’re going to jail is if you hit me.” According to the defendant, after Agent Elrod told him
about the deal, he and Agent Elrod reviewed what he was supposed to say to Officer Seals,
because Agent Elrod told the defendant that Officer Seals would not accept the defendant’s
statement that it was all an accident as a confession. The defendant testified that his written
“confession” was simply a repetition of comments fed to him by Agent Elrod and that he
decided to adopt Agent Elrod’s statements as his own even though he knew they were lies.
The defendant testified that Agent Elrod traced the defendant’s hand all by himself, and that
Agent Elrod wrote down the words “[four to five] seconds” on that diagram even though the
defendant had never said anything to him about four or five seconds. The defendant testified
that Agent Elrod made other embellishments to the diagram. The defendant testified that he
did not sign the diagram until Officer Seals brought the diagram back to him and had him
sign it. According to the defendant, the only thing on the diagram that was his was his
signature.

        The defendant stated that he signed the statement even though it was a lie because he
was concerned that his kids were being neglected by their caretaker. He testified that he had
heard that his daughter was not being taken to the hospital at times when she was supposed
to be taken and that his son was being whipped even though he was only seven months old.
The defendant testified that after he signed the written statement, his wife came in, and he
told her that he thought he might have accidentally scratched the victim. He testified that
while Officer Seals was in the room, he told his wife that Agent Elrod had told him that he
was not going to go to jail and that she would get the children back. The defendant testified
that his wife then asked Officer Seals when she would get the children and that Officer Seals
replied that it would probably be two or three weeks, depending on how long it took for the
paperwork to go through. The defendant testified that he never asked Officer Seals for a

                                              -9-
lawyer and that he never told his wife that the police officers would not let him talk to a
lawyer.

        On redirect examination, the defendant testified that the Department of Children’s
Services had discussed with him the possibility of his reunifying with his children and had
given him a list of goals that must be accomplished first. These goals included fixing a
couple of light fixtures in their home and taking a parenting class. The defendant testified
that he did all of the things DCS required him to do because he was trying to cooperate and
get his children back. The defendant testified that at the conclusion of his polygraph
examination, Agent Elrod kept reminding him of the fact that he wanted to get his children
back home and told him that the only way to do it was to basically “stand up,” “be a man,”
and “do something about it.” The defendant testified that Agent Elrod told him that the only
option the defendant had was to “get the whole case over with” so the children could go
home. The defendant testified that he loved, would lie, and would die for his children.

       On re-cross-examination, the defendant stated that Agent Elrod told him that the only
reason he was there that day was to obtain the defendant’s confession. After taking this
testimony from the defendant, the hearing was concluded.

        On May 17, 2006, the trial court issued an order overruling the defendant’s motion
to suppress. The trial court found as a factual matter that the defendant’s version of events
was not credible. The trial court emphasized that even after Agent Elrod left the room, the
defendant never told Officer Seals or his wife that any coercion had occurred. In addition,
at the time he made his confession, the defendant was well aware of the serious injuries his
daughter had suffered and was aware that his children would not be returned without court
approval. The trial court found as matters of fact that no request for counsel had been made,
that no story was supplied to the defendant by Agent Elrod, and that the defendant’s
incriminating statements had not been coerced, but rather had been freely and voluntarily
given.

      The defendant was tried before a jury on May 20-22, 2008. At his trial, the following
evidence was presented:

        The State’s first witness was Ms. Mary Spada, a pediatric nurse practitioner at the T.
C. Thompson’s Children’s Hospital in Chattanooga. Nurse Spada testified that she
performed medical exams for the Children’s Advocacy Center, an organization whose
purpose was to perform medical examinations on children that may have been the victims of
sexual abuse. The witness testified that she performed an examination of the alleged victim
in this case and that she performed such examinations on several hundred children each year.



                                             -10-
       The witness testified that when she first saw the victim, she was being put under
general anesthesia because she was bleeding from her genital area and that bleeding would
not stop. The witness testified that she watched the operating physician remove a large blood
clot from the victim’s vaginal area and that, afterward, significant additional bleeding
occurred. The witness testified that she carried a rape kit with her and collected evidence
from the victim following the victim’s surgery. The witness testified that while the victim
was under general anesthesia, she viewed the child’s genitalia with an optical magnifying
lens and was able to see at least two cuts between the victim’s labia and in the surrounding
vaginal area. She said that she could see inside the victim’s vagina and that this area
appeared very red, bloody and abraded-looking. The witness testified that the victim was still
bleeding from the injury during the surgery and that blood started to pour out of the victim’s
vagina when the blood clot in the area was disturbed.

        Ms. Spada testified that the victim had injuries to areas other than her vagina,
including severe bruises on the top of her ears. She testified that this bruising was
particularly intense – a bright red and purple color – which she considered remarkable. She
testified that the victim also had a mark on her right cheek that was circular in nature and a
circular bruise to her lower back. She testified that the victim’s neck displayed some slight
bruising and had many broken blood vessels. The witness testified that she took several
photographs of the victim while the victim was in the operating room. The witness
authenticated these photographs, and they were entered into evidence. The witness testified
that based on her experience, bruises of this nature – which displayed no yellow or green
coloration indicative of healing – would probably have occurred within the last twenty-four
hours. The witness testified that it was her opinion that all of these injuries are likely
sustained contemporaneously.

       Nurse Spada testified that the victim had markings from an old diaper rash in her
buttocks area underneath the soft tissue. She further testified that diaper rash could not cause
the kind of bleeding that she witnessed on the night in question.

       Nurse Spada testified that based on the injuries she saw that night, she felt that it was
necessary to administer a rape kit on the victim, notwithstanding the fact that she had some
concern about performing her task on the victim in light of how much bleeding was
occurring. The witness testified that the injuries she saw were consistent with sexual assault.
The witness testified that, in her opinion, the victim’s injuries could only have occurred by
the penetration of the victim’s vagina by an object. She testified that based on the nature of
the tears to the victim’s vaginal area, she was able to conclude that the object that had
penetrated the victim’s vagina was larger in diameter than the victim’s vaginal area. The
witness testified that, based on her training and experience, she held the opinion that a penis
could have caused the injuries she saw on the victim. She testified that it would also have

                                              -11-
been feasible for the injuries she saw on the victim to have been caused by a finger, but
specified that it would have to have been a large finger – one with a wide bore exerting a lot
of pressure – to cause the kind of injury she saw on the victim. The witness testified that in
her years of experience in dealing with juvenile sexual assault victims, the wound to the
victim’s genital area could be fairly described as large.

       After administering the rape kit on the victim, the witness testified that she turned the
kit over to Officer Ricky Seals for submission to the lab. The witness testified that in her
experience it was not possible for a two-year-old child to injure her own genital area to such
an extent by herself. The witness testified that the wounds suffered by the victim would have
been very painful.

       On cross-examination, the witness testified that the victim was not crying or acting
agitated at the hospital, but rather was lying quietly on a stretcher when she arrived. The
witness also agreed that it was possible that not all of the victim’s injuries occurred
simultaneously. The witness testified that her examination revealed that the portion of the
victim’s hymen that could be observed around the victim’s blood clot was still intact. The
witness testified that she could not determine whether the victim’s hymen had been disrupted
because the victim’s blood clot was obscuring her view of a portion of the victim’s vagina.
The witness also testified that it was normal for genitalia to differ from person to person and
that each vagina looks a little different.

        On redirect examination, Nurse Spada testified that having an intact hymen did not
preclude someone from having been the victim of a sexual assault that included either penile
or digital penetration. The witness testified that the absence of a hymen, in her experience,
meant that a sexual assault that occurred. The witness testified that, on the night of the
incident, she took a history report establishing a time line with respect to the child’s activities
for the preceding forty-eight hours. The witness testified that she prepared this report by
talking to the victim’s mother, because the victim’s father was not present when the history
was taken. Nurse Spada proceeded to read this report to the record. Nurse Spada further
testified that the injuries she saw on the victim on the night in question were inconsistent
with the kind of injuries that might occur from children roughhousing with each other.

       The State’s next witness was Jennifer Millsaps, a special agent forensic scientist with
the Tennessee Bureau of Investigation. Ms. Millsaps testified that she worked in the
serology and DNA unit, analyzing evidence for the presence of bodily fluids such as blood,
semen, or saliva. Ms. Millsaps testified that she received a sample of material from
Detective Ricky Seals of the Bledsoe County Sheriff’s Department. This material was
hand-delivered to her and represented to her as coming from the victim. The witness testified
that she tested various evidence that was in the rape kit, and that this evidence included a

                                               -12-
blood sample from the victim, vaginal swabs and vaginal slide, anal swabs, oral swabs, and
a labial swab. The witness testified that she examined the vaginal swabs and that her
examination revealed the presence of a limited amount of spermatozoa.

         The witness testified that if any mistakes had been made with respect to the steps
taken to preserve the material from the rape kit, those problems would not lead to a false
positive with respect to the presence of spermatozoa. Instead, those problems would make
it less likely that any spermatozoa would be discovered in the sample. The witness testified
that she did not discover anything in the victim’s anal swabs, oral swabs, or labial swabs.
The witness testified that she attempted to have DNA testing done on the spermatozoa
discovered in the victim’s vaginal swab by sending that sample to a private laboratory in
Virginia, but that this laboratory was unable to extract any DNA from the sample in light of
the limited amount of spermatozoa present. The witness testified that washing the area of
a person’s body where sperm had been deposited could result in a decrease in the amount of
spermatozoa that was present in that area.

        On cross-examination, the witness testified that she did not discover any spermatozoa
on the vaginal slide taken from the victim at the hospital. The witness testified that it can be
difficult to locate and confirm the presence of spermatozoa on these sorts of slides. The
witness testified that she discovered a total of six individual spermatozoa by preparing a slide
from a cutting of the victim’s vaginal swab. She testified that the tails were missing on the
six spermatozoa. She testified that she performed a preliminary examination to test for the
presence of semen (the liquid which carries spermatozoa out of the male body) on the cutting
that she took from the victim’s vaginal swab and that the swab tested negative for the
presence of semen. The witness testified that the slide that she had taken of the cutting of
the victim’s vaginal swab had subsequently been destroyed. Consequently, there was no way
for a third party to reexamine the slide. The witness testified that the vaginal swab and the
smear from the victim’s rape kit were used up by the independent laboratory in their attempt
to perform a DNA test.

        Following Ms. Millsaps’ testimony, the State called Special Agent Malcolm Elrod of
the Tennessee Bureau of Investigation to the stand. While on the stand, Mr. Elrod made no
reference to his performing a polygraph examination on the defendant, and testified only to
the interrogation that followed. His testimony in this regard was similar to that given at
earlier hearings and summarized above.

       On cross-examination, Agent Elrod testified that he had been trained in tactics of
interrogation and how to testify in court. The witness testified that he did not tape record the
defendant’s confession and that this decision was in accordance with TBI policy. Agent
Elrod testified that he had done all of the writing that appeared on the diagram that had been

                                              -13-
made of the defendant’s hand, which indicated that the defendant had inserted his index
finger into the victim’s vagina up to the knuckle. The witness testified that the only writing
on that diagram that was done by the defendant was the defendant’s signature. On redirect
examination, the witness clarified that TBI’s policy of not recording interviews was also
followed by the FBI and many other city police departments and sheriffs’ departments.

        The State’s next witness was Investigator Ricky Seals with the Bledsoe County
Sheriff’s Department. Investigator Seals testified that, on the night of the incident, he went
to the hospital and picked up a rape kit that was given to him by Ms. Mary Spada. He
testified that he took that rape kit, stored it into evidence, and later hand-delivered it to the
TBI crime lab in Knoxville, Tennessee. Investigator Seals also gave direct testimony at the
defendant’s trial concerning his initial interview with the defendant and the defendant’s
subsequent confession following his interview with Agent Elrod. This testimony was similar
in nature to the testimony that he gave at the defendant’s preliminary hearing, which was
summarized above.

       Investigator Seals also read into the record his notes from his initial interview with the
defendant. According to these notes, the defendant claimed that on the night in question, the
victim had soiled her diaper and that, after he replaced the victim’s diaper, he noticed some
blood specks. The defendant claimed that he had told the victim’s mother that the victim was
bleeding from a diaper rash. According to Investigator Seals’ notes, the defendant claimed
that the victim’s mother had asked the defendant what he had done to the victim after
inspecting the victim’s wound. Afterward, the defendant and the victim’s mother talked and
decided to take the victim to the hospital. The defendant claimed that he told the victim’s
mother that he would do a DNA test to prove that he did not do anything to the victim.
Concerning the victim’s subsequent confession on April 20, 2005, Investigator Seals testified
that he was extremely polite during his interview with the defendant, made no promises to
the defendant, and never threatened the defendant in any way.

        On cross-examination, Investigator Seals testified that the defendant had never been
difficult or uncooperative during the investigation. The witness testified that he was aware
the defendant’s children had been removed from the home and that the defendant was taking
steps to try to have the children returned. The witness also testified that he was aware that
Agent Elrod had not tape recorded his interview with the defendant and further testified that
Agent Elrod never asked him to borrow any recording equipment on that day. Investigator
Seals testified that the defendant never indicated in his confession that what happened to the
victim had been done intentionally.

        Investigator Seals acknowledged that he was aware that the children may have been
out to visit the victim’s biological father during the morning hours of the day of the incident.

                                              -14-
Investigator Seals testified that he never interviewed the victim’s biological father during his
investigation.

        The State’s next witness was the victim’s aunt, who testified that the victim spent the
night with her on the night immediately preceding the night in question. The victim’s aunt
testified that the victim was with her from 8:00 p.m. that night until around 10:00 or 11:00
a.m. the following day. The victim’s aunt testified that she gave the victim a bath during that
time. The victim’s aunt testified that she noticed no bruising or bleeding on the victim at any
point during the time period that the victim was in her care. Ms. Moore further testified that
the victim was never alone with any adult males during that time period. The witness
testified that she did not observe the victim fighting or roughhousing with any other children
during the time the victim was in her care.

        The victim’s aunt also testified that she and the victim’s mother took the victim and
some other children to see the victim’s biological father and retrieve some belated birthday
presents for the victim on the following day. The victim’s aunt testified that the victim’s
biological father and his wife were the only ones present at the home of the victim’s
biological father during their visit. The victim’s aunt testified that no other adults were
present during this period of time and that the victim was never alone with any other person
while at her biological father’s house. The victim’s aunt testified that they returned from this
trip around 1:30 p.m. and that she went home afterward. She testified that the victim had no
visible bruises or bleeding at any point prior to her and her mother being dropped off.

        The victim’s aunt testified that she lived for a period of time with the defendant and
the victim’s mother. The victim’s aunt testified that, during this period of time, she observed
that the victim’s mother was the one who primarily took care of the victim. The victim’s
aunt testified that the victim’s mother changed the victim’s diapers and gave the victim baths.

        On cross-examination, the victim’s aunt testified that she was aware that the defendant
and the victim’s mother were working together to try and get their children returned from
Child Protective Services following the night of the incident. In addition, she testified that
she was aware that the victim’s mother and the defendant had lived together as man and wife
for approximately two weeks following the defendant’s confession. The victim’s aunt
testified that she had never seen the defendant harm the victim and that the victim, her
mother, and the defendant appeared to be a happy family.

        The State’s next witness was the victim’s mother, who testified that she currently lived
with another man and her two children. The victim’s mother testified that she was previously
married to the defendant. She testified that the defendant was the father of her son. She
testified that the defendant was not the victim’s biological father. The victim’s mother

                                              -15-
testified that at some point after she married the defendant, he adopted the victim. She
testified that she had been married to the defendant for almost a year before the incident
occurred.

        The victim’s mother testified that on the night prior to the night in question, the victim
spent the night with her sister, the victim’s aunt. The victim’s mother testified that the victim
returned the next morning and that she, her sister, the victim, and some other children went
to go visit the victim’s biological father to pick up some birthday presents for the victim. She
testified that there were no other adult males present in the house of the victim’s biological
father while they were there. She testified that after this trip, they returned home at around
1:30 p.m. and that the defendant returned home from work at around 2:00 p.m. The witness
testified that she left for work around 4:00 p.m. and that, as of that time, the victim had no
bruises and was not bleeding. She testified that at 9:00 p.m., she received a phone call from
the defendant who asked her if she had noticed any bruises on the victim. She testified that
she told him no. She testified that the defendant asked her if she had left the victim alone
with anyone and that she told him no. She testified that the defendant told her that the
victim’s ears and arm were bruised. She testified that the defendant did not leave her with
the impression that any of these injuries were serious. The victim’s mother testified that she
returned home a few minutes later to discover the victim wrapped up in a towel and still wet
from the bathtub. She testified that the defendant changed the victim’s diaper and, at some
point later, told her she needed to check out the victim’s bottom because she had a rash and
it was bleeding. The witness testified that the victim had never had a chronic problem with
diaper rash. The victim’s mother testified that when she checked the victim’s diaper, she saw
fresh blood spots on it. She testified that she asked the defendant what he had done to her
baby, and she started crying. She testified that the defendant started acting “weird,” like
nothing was bothering him, and asked her why she was concerned. Eventually, the defendant
started crying.

        The victim’s mother testified that she and the defendant lived in a cold house that was
heated by a wood stove. She testified that this wood stove had recently gotten too hot and
set their wall on fire. As a result of this incident, she testified that she and the defendant took
precautions about what they placed in that stove and that they had never burned a diaper in
it. She testified that she and the defendant slept on a mattress on the floor while the children
slept on a sofa.

       The victim’s mother testified that on the night in question, the covers and blankets
from their mattress were in the washing machine. The witness testified that this was unusual
because the defendant had never washed those blankets before. The victim’s mother testified
that she asked the defendant why he was washing the blankets, and he replied that the victim
had spilled food on them. She testified that she found this unusual because the victim ate in

                                               -16-
a high chair and had never eaten on their bed. She also testified that it was unusual for the
defendant to bathe the kids. The victim’s mother testified that on the night of the incident,
the defendant did not say anything to her about the victim having had a dirty diaper and his
needing to change it. She testified that the first time she heard about a dirty diaper was when
Investigator Seals came over to interview the defendant a few days later. She testified that
she heard the defendant tell Investigator Seals that he had burned the victim’s dirty diaper
in their wood stove.

        The victim’s mother testified that after seeing the victim bleeding, she made the
decision to take the victim to T. C. Thompson’s Children’s Hospital in Chattanooga. She
testified that the defendant neither encouraged nor discouraged her from going. She testified
that they began the trip with the defendant driving the car, but he pulled over part way
through the trip and told her she would have to drive because he was getting sleepy. The
victim’s mother testified that she found this unusual because the defendant would normally
have been awake at that time of the evening. She testified that after she took over the
driving, the defendant slept in the car all the way to the hospital.

       The victim’s mother testified that after they arrived at the hospital, the victim was
examined by a doctor and taken into surgery. She testified that she waited in the waiting
room for a while and was eventually approached by Nurse Spada, who questioned her
regarding the child’s activities for the preceding twenty-four hours. She testified that after
finishing this interview, she returned to the hospital’s waiting room and saw the defendant
asleep on the couch with their infant son sitting next to him in the car seat.

        The victim’s mother testified that she was present in the building on April 20, 2005,
when the defendant spoke with Agent Elrod and Investigator Seals. The witness testified that
at some point during that day, Investigator Seals took her back to his office, telling her that
the defendant had just signed a confession. She testified that when she went into the room
with the defendant, the defendant told her that he had hurt the victim, that he was sorry, and
that he had not intended to hurt her. She testified that the defendant was crying and hugged
her. She testified that she read a statement afterward that the defendant had given in which
he stated that he had put his finger into the victim.

        The witness testified that she continued to live with the defendant for approximately
two weeks after reading his confession. She testified that during this time, the defendant
gave her additional explanations regarding what might have caused the victim’s injuries. She
testified that the defendant claimed that the victim might have been hurt by some toys in the
bathtub or that he might have wiped the victim too hard when he was cleaning her after she
defecated.



                                             -17-
        On the stand, the victim’s mother was shown some pictures of the victim’s injuries
on the night of the incident. The witness testified that the bruising that was depicted in the
pictures appeared worse than what she had seen earlier in the evening. The victim’s mother
testified that the victim’s bruising appeared to have worsened while the victim was at the
hospital.

        On cross-examination, the victim’s mother testified that she was aware that the
defendant’s counsel had been attempting to speak with her for the last week and that she had
sent word to the defendant’s counsel that she would not do so. The victim’s mother testified
that when she married the defendant he treated her children very well and treated the victim
as if she was his own daughter. She further testified that the defendant had been good to the
victim and that she had never claimed that the defendant had ever been bad to her daughter
prior to the incident.

       The victim’s mother testified that two days before the incident, the victim was at a
birthday party where numerous adults were in attendance. The witness testified that the
defendant was at guard duty on the following day and for most of the day of the incident.
The victim’s mother testified that on the morning of the incident, she took the victim to visit
her biological father. The witness testified that she may not have personally observed the
victim’s bottom before she left for work that day – she did not keep track of when she
changed the victim’s diapers. The witness testified that when the defendant called her at
work and reported that there was bruising on the victim’s arm and ears, she was not
particularly concerned because she thought she could hear the victim laughing in the
background.

       The victim’s mother testified that when she returned home, the defendant had
apparently just gotten the victim out of the bathtub. She testified that she never told
Investigator Seals during his investigation that there was anything unusual about the
defendant bathing the children. The witness testified that when she first took off the victim’s
diaper on the night of the incident, there appeared to be three or four spots of blood on it that
were smaller than a penny. She testified that the defendant never tried to deter her from
taking the victim to a doctor and that the defendant never tried to stay at home, leave, or go
somewhere else once she decided that the victim needed to go to the hospital. The victim’s
mother testified that on the way to the hospital, the victim did not appear to be in obvious
distress, but was simply very quiet.

       The victim’s mother testified that after the children were removed from their home,
she and the defendant worked with the Department of Children’s Services in an attempt to
have the children returned. She testified that the defendant took parenting classes, had a
psychological evaluation, and took other steps required by DCS. The victim’s mother

                                              -18-
testified that it was made clear to her and the defendant that if they did not do everything
necessary to cooperate with law enforcement, the Department of Children’s Services would
probably not return their children.

        The victim’s mother testified that as of June 21, 2005, the Department of Children’s
Services still had not returned her children. She testified that she was told that she needed
to acknowledge the defendant’s responsibility. She testified that after hearing this, she told
the defendant that she was divorcing him so that she could get her children back. She
testified that not long after she filed for divorce, DCS returned her children.

       On redirect examination, the victim’s mother testified that prior to going to the
sheriff’s office on April 20, 2005, the defendant never told her that he was going to confess
so she could get her children back. She also testified that after the defendant made his
statement to police, he never told her that he had confessed so that she could get her children
back.

       On recross-examination, the victim’s mother testified that she no longer loved the
defendant. Defense counsel then asked her whether there was a “new man in your life.” The
State objected, and the trial court sustained the State’s objection. Defense counsel urged that
the question was relevant in order to establish the witness’ bias. The trial court instructed
the jury to disregard the question. Defense counsel asked no further questions and the
witness was excused.

        Following this testimony, the State read into the record portions of a previously-taken
deposition of Dr. Thomas Bruns. In this deposition, Dr. Bruns stated that he was an
emergency pediatrician with fifteen years of experience, and that on January 11, 2005, he
treated the victim for vaginal bleeding and bruising to various areas of her body. Dr. Bruns
stated that the victim appeared calm when he first saw her and that both of her parents
seemed concerned. Dr. Bruns added that the defendant “seemed a little bit nervous in
general.” Dr. Bruns described the injuries he observed during his physical examination of
the victim, including significant bruising to both ears as well as “petechial rash” around the
victim’s neck and under her chin area. Dr. Bruns explained that a “petechial rash” was small
points of bleeding underneath the skin caused by trauma, which appear to be pinpoint areas
of blood (as opposed to larger bruising). Dr. Bruns explained that the difference between
bruising and petechial rash in terms of causation usually had to do with the amount of force
applied to the skin. Dr. Bruns testified that the petechial rash he saw on the victim’s neck
could be consistent with the application of a cord, rope, or hands and fingers. Dr. Bruns
testified that significant pressure would have to be applied in order to disrupt the blood
vessels underneath the skin in this fashion. Dr. Bruns testified that, in his expert opinion, the
injuries he observed on the victim would have occurred within the previous six to twelve

                                              -19-
hours. Dr. Bruns testified that the amount of time it would have taken for the victim’s
bruising to appear following her injury would have been between ten and forty minutes and
perhaps even sooner.

       Dr. Bruns stated that when he looked at the victim’s diaper area, there was a
significant amount of blood present in the perineal area. Dr. Bruns testified that when he
washed this blood off in order to do an exam, the victim’s anus showed no abnormalities or
bruising. Dr. Bruns testified that when he examined the victim’s vagina, he could observe
no visible hymen and that the victim’s anatomy had been disrupted to the point that he could
not “make out any anatomy.” Dr. Bruns stated that the victim’s vaginal opening essentially
“looked like hamburger meat.” Dr. Bruns stated that the victim’s vaginal area “was very
bloody, macerated” and “cut and bumpy.” Dr. Bruns stated that he determined from his
examination that the victim had suffered some form of trauma to her vaginal area and
decided to call in Dr. Lisa Smith to perform a more thorough examination of the victim under
anesthesia.

        Dr. Bruns stated in his deposition that the victim’s diaper contained a significant
amount of blood. Dr. Bruns further stated that significant blood had come down and covered
the area of the victim’s buttocks and that a large blood clot that had formed on the victim’s
vaginal area. Dr. Bruns stated that while he was performing his exam, the victim kept
dripping blood that would trickle down her buttocks onto the diaper. Dr. Bruns testified that,
in his expert opinion, the victim’s vaginal injuries had occurred within the previous six to
eight hours. Dr. Bruns testified that he based his opinion on the fact that the clot he
discovered was freshly-formed and the fact that the victim’s wounds were still bleeding
profusely. Dr. Bruns explained that blood clots appear different when they have been present
for more than eight to twelve hours, and that the longer a blood clot has been present, the
more gelatinous it becomes.

        Dr. Bruns testified that the victim would have bled significantly when she was first
injured. Dr. Bruns testified that the tearing and destruction of the victim’s vagina would
have been very painful and that he would have expected any child sustaining such an injury
to cry. Dr. Bruns testified that anyone performing a routine diaper change of the victim
would have noticed the injury. Dr. Bruns testified that after approximately twenty minutes,
the victim’s blood would have clotted and the blood flow would have slowed, but there
would continue to be drips of blood for some time. Dr. Bruns testified that any person who
was in the presence of the victim when this injury occurred would have noticed that
something was wrong. Dr. Bruns testified that, in his professional opinion, the injuries to the
victim were not accidental and the victim had been sexually assaulted. Dr. Bruns testified
that he had seen many diaper rashes in his time and that the victim did not have a diaper rash
when he examined her. Dr. Bruns testified that his examination revealed no sign of a recent

                                             -20-
diaper rash on the victim and, furthermore, it is very rare for a child experiencing a diaper
rash to bleed.

        Dr. Bruns stated in his deposition on cross-examination that it would have been
possible for the bruising around the victim’s ears to have occurred as much as five days in
the past and that it was possible that the victim’s hair could hang down over her ears in a
manner that an individual around her would not necessarily notice the bruising. Dr. Bruns
also stated in his deposition that a bath could dissolve a blood clot, that a new blood clot
could form in its place, and that this pattern could be repeated several times. Dr. Bruns stated
in his deposition that the victim did not appear to be in pain following her examination.

        Next, the State read into the record portions of the deposition of Dr. Lisa Smith. In
her deposition, Dr. Smith stated that she was a pediatric surgeon with four years of
experience and that she treated the victim on the morning of January 11, 2005. Dr. Smith
stated that she was asked to examine the victim by the attending emergency room physician
and, when she did so, she observed bruising around the victim’s head, face, and neck. Dr.
Smith stated that she observed “petechial bruising” (which she explained is the early
presentation of what would later become a bruise) around the victim’s neck in a circular
fashion as well as on both the victims ears. Dr. Smith stated that “petechial bruising”
consists of small little red dots of broken capillaries. Dr. Smith stated that in her expert
opinion, this bruising would have been inflicted within twelve hours of her evaluation.

        Dr. Smith stated that she took several photos of the victim while performing her
examination that showed the injuries to the victim’s ears, neck, and vaginal area. Dr. Smith
identified those pictures of her deposition. Dr. Smith stated that following her examination,
she concluded that there was no injury to the victim’s anus or cervix. Dr. Smith stated that
the entrance to the victim’s vagina was lacerated in a linear fashion at the six o’clock position
and that she performed a repair to that laceration. Dr. Smith stated that this repair consisted
of two sutures as well as applied pressure.

        Dr. Smith stated that her postoperative diagnosis was that the victim’s injuries had
been caused by sexual abuse. Dr. Smith stated in her deposition that she reached this
conclusion by determining that the victim’s injuries were inconsistent with falling, being
struck by a vehicle, or any other form of genital trauma that was not related to abuse. Dr.
Smith testified that, in her experience, the only mechanism that could cause the sort of injury
she observed on the victim is the attempted insertion of an object into the vagina. Dr. Smith
explained that injuries caused by the insertion of an object into a vagina will usually occur
at the six o’clock position. Dr. Smith stated that she could not identify what object caused
the injury from performing a physical examination.



                                              -21-
        Dr. Smith testified that, based on her conclusion, she contacted the Children’s
Advocacy Center and that Nurse Spada responded and administered a rape kit on the victim.
Dr. Smith testified that based on her examination, the victim’s vaginal injuries had occurred
in the previous twelve to twenty-four hours. Dr. Smith testified that she reached this
conclusion based on the fact that a fresh blood clot was present and no actual healing of the
laceration had taken place. Dr. Smith stated in her deposition that the victim’s injuries would
have been painful. Dr. Smith stated that some children would respond to these types of
injuries by crying; others would withdraw completely and be very quiet. Dr. Smith stated
that the victim’s injuries would have been noticeable to anyone changing the victim’s diaper.
Dr. Smith stated that it would probably have taken twenty-four hours before the wound
would have clotted up to the extent that there would have been no additional bleeding.

       After these portions of Dr. Smith’s deposition were read into the record, the State
rested. The defendant made a Motion for Judgment of Acquittal on the grounds that the State
had failed to show that any penetration that might have occurred of the victim’s vagina was
sexual in nature. The trial court denied the defendant’s motion.

        The first witness for the defense was Mr. William Watson, the laboratory director at
Orchid Cellmark, the largest private DNA testing laboratory in the United States. Mr.
Watson testified that he had extensive experience related to serology and DNA testing. Mr.
Watson testified that he ran tests for semen on several items that were given to him and that
none of those tests had positive results. Mr. Watson testified that he did not personally
observe any of the slides that had been discussed in the report prepared by the Tennessee
Bureau of Investigation; however, he had reviewed the report made by the technician who
had reviewed the slides. In particular, he had reviewed that report’s conclusions with respect
to a single slide that the TBI determined revealed the presence of six spermatozoa which did
not have tails.

        Mr. Watson testified that it was his opinion that for a slide of that nature, six
spermatozoa would be considered a very low number. Mr. Watson testified that on average,
male ejaculation contains 40 to 100 million spermatozoa per milliliter. Mr. Watson testified
that given the timing of the collection of the swab, this number did not appear to be correct
to him. If the swab had been collected within twelve to sixteen hours of the alleged assault,
he would have expected the sample to test positive for semen and to detect a much larger
number of spermatozoa.

        Mr. Watson further testified that if spermatozoa are collected mere hours after being
deposited, he would expect for any spermatozoa found to be discovered intact. Mr. Watson
testified that tails on spermatozoa tend to degrade after sixteen to twenty-four hours. Mr.
Watson testified that, in his experience, there are many things that can be mistaken for the

                                             -22-
head of a spermatozoa. Mr. Watson testified that yeast cells, in particular, look very much
like the heads of spermatozoa and stain the same color in laboratory tests.

       Mr. Watson testified that it would have been helpful to him in his analysis if he had
been able to view the actual slides, or at least pictures of them, in order to properly determine
whether or not spermatozoa were present. Mr. Watson testified that it also would have been
possible to test the victim’s diapers and the washcloth used by the treating physician to wipe
away the blood from the victim’s vaginal area. Mr. Watson testified that according to the
materials he had received from the TBI crime lab, no such testing had ever been done.

        Mr. Watson testified that it was not uncommon in his experience for the victims of
sexual assault to bathe or be bathed prior to the collection of samples. Mr. Watson testified
that, in his experience, it was relatively common to still discover DNA evidence in those
situations. Mr. Watson testified that in other cases he had dealt with he was able to get a
complete or partial DNA profile based on the sample he received. Based on the materials
he reviewed, Mr. Watson testified that the TBI was not able to generate a DNA profile in this
case based on the sample it had received.

       On cross-examination, Mr. Watson testified that he had not actually talked to any of
the DNA analysts and that his professional opinions were prepared simply from looking at
notes. Mr. Watson testified that he never contacted any of the technicians involved to
determine whether or not the samples at issue had been destroyed or whether it would still
be possible to review them. Mr. Watson testified that in his review of the examinations
performed by the TBI and the private laboratory they retained, he had concluded that both
labs had followed proper protocols with respect to the testing that they had performed. Mr.
Watson also testified that if spermatozoa are deposited on an object and that object is later
washed, the washing could reduce or eliminate the spermatozoa found on the object.

        Next, the defense presented the testimony of Ms. Misty D’Amico of the Department
of Children’s Services. Ms. D’Amico testified that she was the foster care worker who
worked with the defendant in January of 2005. Ms. D’Amico testified that she developed
a “permanency plan” for the parents of the victim in this case. Ms. D’Amico testified that
a “permanency plan” is a plan developed by the Department of Children’s Services for every
child that enters their custody explaining how DCS will work with the parents to get the child
back into the parents’ custody. From the stand, Ms. D’Amico read from section eight of her
permanency plan, which listed the family’s strengths. In this section, she wrote that the
defendant and his wife like to “share family time,” “show lots of love and affection to their
children,” and were “determined, good parents.” Ms. D’Amico testified that the permanency
plan required the defendant to take parenting classes and undergo a psychological
assessment, and that the defendant completed these requirements. Ms. D’Amico testified that

                                              -23-
while the children were removed from the home, the parents were allowed supervised
visitation visits. She testified that she was present for some of the supervised visitation visits
and that the victim did not appear to be distressed by being around the defendant.

        Ms. D’Amico testified that the permanency plan required the defendant to
“acknowledge the circumstances that caused [the victim’s] injuries and acknowledge the
severity of the sustained trauma.” In addition, the permanency plan stated that the defendant
and his wife “need to cooperate with law enforcement and DCS during this investigation so
that the perpetrator can be identified.” Ms. D’Amico testified that both those requirements
would have to be satisfied before the children would be returned to the parents. Ms.
D’Amico testified that the permanency plan specified that if the parents failed to comply with
the plan, then custody would not be returned to the parents and the victim would permanently
live with other relatives. Ms. D’Amico testified that as of April of 2005, the defendant and
his wife had done everything that was listed on the permanency plan with the exception of
the requirement pertaining to the defendant’s acceptance of responsibility, yet the children
still not had been returned to them.

       Ms. D’Amico testified that following the defendant’s confession, DCS recommended
that the children remain in custody until the allegations against the defendant had been
resolved. DCS recommended that the children not be returned to the mother because the
mother did not acknowledge the defendant’s confession. Ms. D’Amico testified that the
children were returned to the defendant’s wife in October of 2007.

        On cross-examination, Ms. D’Amico testified that the defendant’s wife was in denial
for a period of time after the defendant “shocked” her with his confession. Ms. D’Amico
stated that the portion of the permanency plan requiring both parents to cooperate with law
enforcement did not require either of them to give a confession before the children could be
returned to them. Ms. D’Amico testified that this provision simply required the parents to
speak with law enforcement officials if law enforcement officials wanted to talk to them.
Ms. D’Amico testified that the defendant’s wife had never confessed to doing anything to
the victim yet she had possession of the children today.

       The next witness for the defense was the defendant himself. The defendant testified
that he was currently twenty-four years old. He testified that he had married the victim’s
mother in February of 2004, adopted the victim, and had a second child with the victim’s
mother. He testified that when the victim’s mother worked the night shift, he would take
care of the victim during the evenings. He testified that when he was taking care of the
victim, he would change her diaper, feed her, and occasionally give her baths. He testified
that he also cooked and did laundry on occasion.



                                               -24-
        The defendant testified that some time after February 2004, there was a problem with
the victim’s biological father that involved a bruise. The defendant testified that this problem
led to litigation that was settled out of court. The defendant also testified that the victim
often suffered from diaper rash and that he had recently taken her to a doctor at a nearby
clinic to be treated for diaper rash, although he could not remember the doctor’s name.

        The defendant testified that on the weekend immediately before the incident, he had
National Guard duty. He testified that on Sunday night after he completed his Guard duty,
he took his son to the hospital and did not return until the early morning hours of Monday
morning. He testified that he woke up at 4:00 a.m. that same day and went to his job. He
testified that he returned home around 2:00 p.m. that day, and had not seen the victim prior
to that time because she had spent the previous evening at her aunt’s house. The defendant
testified that between 2:00 p.m. and 4:00 p.m. on that Monday, he and his wife did household
chores. He testified that he did not remember washing any sheets that day but that he had
never heard, prior to his wife’s testimony in this case, anything about bedclothes being
washed.

        The defendant testified that he made Hamburger Helper for the victim’s dinner that
evening and fed formula to his son. He testified that the victim was not fed from a high chair
but would eat “wherever she flopped down at, you couldn’t strap her in a high chair if you
tried.” The defendant testified that he could not remember whether the victim had spilled
anything on the bed that evening.

        The defendant testified that he and his wife were potty training the victim and that she
had just gotten to the point where she would tell them when she had soiled her diaper. He
testified that on the night in question, the victim came in and told him that she had soiled her
diaper. He testified that he went to change her diaper, and discovered that she was covered
in feces from the front of her stomach to her back. The defendant testified that his wife had
not changed the victim during the time period while he had been at home and stated that it
was clear that the victim had not been changed in a long time. The defendant testified that
he cleaned the victim as best he could and then put her in the bath to finish cleaning her up.
The defendant testified that after he removed the victim from the bathtub, he noticed that the
victim was bleeding. He testified that he did not notice the bleeding sooner because the
victim was covered in feces.

        The defendant testified that shortly before changing the victim’s diaper, the victim sat
down in front of him and he noticed that she had bruises on her ear and on her arm. He
testified that he called his wife at work and reported the injuries. He testified that his wife
did not seem worried. The defendant testified that when his wife got home, he asked her to
look at the victim’s injuries. He testified that when she did so, his wife started crying, which

                                              -25-
made him feel “like crap.” He testified that he did not cause the bruises to his daughter.

        The defendant testified that he would always dispose of dirty diapers in the garbage
can, that he never burned diapers in the wood stove, and that he never told anyone that he had
burned a diaper in a wood stove. He further testified that it was not at all unusual for him to
give a bath to the children and that he and his wife took turns doing it. He also testified that
it was normal for them to switch off as drivers when they were traveling somewhere together.
The defendant testified that he became drowsy on the drive to the hospital because he had
only had three hours of sleep the night before. He testified that he pulled over and swapped
driving duty with his wife because he was worried about falling asleep at the wheel, and that
there was generally nothing unusual about him having his wife drive. He testified that the
victim fell asleep during the drive and did not appear to be in any distress.

        The defendant testified that the Department of Children’s Services got an emergency
injunction to take the children away before he and his wife even left the hospital. He testified
that he and his wife immediately started taking steps to try to get the children back, including
contacting an attorney, Mr. Keith Grant. The defendant testified that he initially spoke with
Investigator Seals prior to retaining an attorney. He testified that he was contacted by
Investigator Seals on April 19, 2005, and asked to speak with Agent Elrod at the Sheriff’s
Office the next day. He testified that he consented to doing so.

       Concerning the events of April 20, 2005, the defendant gave testimony that was
essentially the same as the testimony he gave in his motion to suppress concerning the
statements that he made Agent Elrod and Investigator Seals, except no reference was made
to the polygraph examination. Generally, the defendant claimed that Agent Elrod had
promised him that he would not have to serve any jail time and that his children would be
returned if he confessed. The defendant claimed that he was motivated to confess because
he was fixated on concerns about the way his children were being treated in foster care – and
specifically, because during one visitation he noticed that his son had a black eye and was
being spanked even though he was only seven months old and that his daughter had chicken
mites in her eyes and was not receiving medical treatment. Once he decided to take the deal,
the defendant claimed that Agent Elrod created a tracing of his hand, fabricated the
remaining portions of the diagram, and fed him a story to tell to Investigator Seals. The
defendant claimed that he told Agent Elrod’s story to Investigator Seals even though he knew
it was a lie.

       The defendant claimed that he did not rape the victim, insert his penis into the victim,
or ejaculate into the victim. The defendant claimed that he loved his children and was
responsible for their child support. The defendant claimed that he did not hurt his daughter
and that he had not injured her in any intentional or sexual way.

                                              -26-
       On cross-examination, the defendant further discussed the incident involving the
victim’s biological father. The defendant stated that about a year before the night in
question, the victim had shown up with a bruise on her leg and that following this incident,
he and his wife had made a deal with the victim’s biological father in which he would no
longer have to pay child support if he would give up his visitation rights.

       Concerning the night in question, the defendant clarified that he did not notice any
bruising on the victim until three and a half to four hours after his wife left for work. He
vehemently confirmed his denials of his wife’s accusations that he never gave the children
baths, never washed the sheets, and had ever said that he had burned a diaper in the stove.
He testified that he did not tend to get sleepy after ejaculation.

        Concerning the events surrounding his confession, the defendant claimed for the first
time at trial that, after making his confession, he informed his wife that he had confessed just
so she could get her children back. When asked why he would make such confession when,
after all of the proceedings he had participated in before a juvenile judge he must have been
aware that Agent Elrod could not promise him that his children would be returned, the
defendant said that he believed the promise because the DCS was telling him the same thing.
When asked how, after hearing the depositions taken from the two doctors concerning the
extent of the victim’s injuries, he could have ever thought that DCS would someday return
custody of the victim to him, the defendant could not explain his reasoning. The defendant
also asserted that he was crying genuine tears following his confession, even though he knew
the confession was fake. The defendant denied that he told his wife other stories about what
happened to the victim following his confession.

        On redirect examination, the defendant testified that following his statement to police,
he and his wife were hugging and crying and Investigator Seals had to break the two of them
up. The defendant testified that he cried in front of his wife at the jail because he felt like
what happened to the victim was his fault. He claimed he was crying because “I’m her
father, and I didn’t do anything to my child, but she got hurt, and I couldn’t fix that.” On
recross-examination, the defendant claimed to be crying following his confession because
he was trying to take the blame for somebody else, to fix a wrong that someone else had done
that he could not fix.

       The next witness for the defense was Sergeant Jason Witt, a commander of a Bradley
fighting vehicle in the National Guard who had worked with the defendant for approximately
eight years. Sergeant Witt testified that he and his then-wife spent considerable time with
the defendant and the victim’s mother when they were together and that, on most of these
occasions, the couple would have both of their children with them. The witness testified that
he had plenty of opportunity to see how the defendant interacted with the children on these

                                              -27-
occasions. He testified that the defendant loved being around his children and took care of
them. He testified that the defendant would play with the children, feed them, and clean
them.

       Sergeant Witt testified that he was the defendant’s supervisor in the National Guard,
and that the defendant had a reputation in the military community for his honesty. Sergeant
Witt also testified that he personally believed that the defendant was very believable and
honest. He testified that even though he was aware that the defendant had made
incriminating statements, he still believed the defendant.

        On cross-examination, Sergeant Witt testified that he was a good friend of the
defendant and did not want to see the defendant get in trouble. He also testified that although
he was appearing in court in his military uniform, he did not have any type of order
permitting him to do so. When asked if the defendant, as a truthful person, should be
believed when he told police officers that he stuck his finger in the victim’s vagina, the
witness testified that he did not know if the defendant had lied to those officers or not. He
testified that no matter how many times he was told that the defendant had told lies, it would
still be his opinion that the defendant was a truthful person.

        The final witness for the defense was Ms. Doris Thurman, the defendant’s aunt. She
testified that she was around the defendant and his family on several occasions while they
were married and had the opportunity to observe the defendant around his children. She
testified that he cared for his children and would engage in activities like feeding them and
changing their diapers. She testified that when the family was in her presence, he, rather than
his wife, seemed to pay more attention to the kids.

        On cross-examination, Ms. Thurman testified that she had never seen the defendant
give the children their baths. She testified that he changed their diapers more frequently than
did his wife. She also testified that he would never wait six or seven hours without checking
a child’s diaper and would not let a child get covered in feces from stomach to back; he
would certainly check the child’s diaper before something like that occurred.

        Following this testimony, the defense rested, and the trial court instructed the jury.
The parties then proceeded to give closing arguments, with each side delving into the
testimony of the witnesses and highlighting the points in favor of their position. However,
during rebuttal argument, the prosecutor commenced by saying, “I want to thank my good
friend, Mr. Jeff Harmon for doing an excellent job in this case because he does what he gets
paid to do and that’s to represent his client as best he can to get him off, that’s his job and
he does a. . . .” At this point, the prosecutor was cut off by an objection from the defense to
the prosecution’s assertion that it was the defendant’s counsel’s job to get someone off rather

                                             -28-
than get them a fair trial. This objection was overruled. Closing argument continued, and
the jury retired to deliberate.

        On May 22, 2008, the jury returned with a verdict of guilty as charged. The defendant
was sentenced on August 25, 2008, to eighteen and a half years. The defendant filed a timely
motion for new trial, which was denied by the trial court on January 8, 2010. The defendant
filed a timely notice of appeal. Our decision follows.

                                         ANALYSIS

        The defendant claims that the trial court erred by failing to suppress his pretrial
statements to police and by not allowing the defendant to question his ex-wife on the stand
concerning whether there was a “new man” in her life. However, we can discern no error
in these rulings. The defendant claims that the evidence was insufficient to support his
conviction, but we hold that a reasonable jury could have found the defendant guilty of the
rape of a child based on the evidence presented at trial. Finally, the defendant claims that the
prosecutor engaged in misconduct by asserting in his closing argument that the defendant’s
counsel was “paid to get his client off.” We agree that the prosecutor’s comment was
inappropriate. However, we do not believe that the defendant has shown that this singular
comment affected the outcome of the case in light of the overwhelming evidence against the
defendant. Consequently, we affirm the judgment of the trial court. Our specific reason for
rejecting each of the defendant’s claims is as follows:

                                               I.

        The defendant claims that the evidence is insufficient to support his conviction for
rape of a child. In order to resolve this claim, we must apply the traditional principles of
appellate review to claims concerning the sufficiency of the evidence. Concerning such
challenges, the ultimate question “is whether, after reviewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011); see also
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). “The jury, as the trier
of fact, is empowered to assess the credibility of the witnesses, to address the weight to be
given their testimony, and to reconcile any conflicts in the proof,” and its decisions
concerning these matters will not be reversed on appeal. Id. A jury’s verdict finding the
defendant guilty of a crime strips the defendant of his presumption of innocence and raises
a presumption of guilt; consequently, “the criminal defendant bears the burden on appeal of
showing that the evidence was legally insufficient to sustain a guilty verdict.” Id. (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). After reviewing the record in this case,
we conclude that the defendant has failed to carry this burden.

                                              -29-
          A jury found the defendant guilty of one count of rape of a child in violation of
Tennessee Code Annotated section 39-13-522, which states: “Rape of a child is the unlawful
sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is
. . . less than thirteen (13) years of age.” There is considerable testimony and evidence in the
record concerning the victim’s age – which was attested to be well below thirteen years –
and this matter is not disputed on appeal. Rather, the defendant challenges the jury’s finding
with respect to whether he committed sexual penetration. “Sexual penetration” is defined
by statute 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 . . . emission of
semen is not required.” T.C.A. 39-13-501(7) (2004).

       The defendant’s written confession to police fully supports a jury’s conclusion that
the defendant committed sexual penetration in this case. In his written confession, the
defendant stated that his index finger, which is unquestionably a part of his body, penetrated
the victim’s vagina. Neither the degree of this intrusion (whether to the end of the
defendant’s fingernail or to the end of his knuckle) or its duration (whether a full “four or
five seconds” or “only a second”) matters for purposes of establishing the existence of the
element of sexual penetration; the terms of the statute specify that penetration is deemed to
occur by “any intrusion, however slight.” A reasonable jury was free to rely upon the
defendant’s confession in order to find this statutory element satisfied and the defendant
guilty of the crime charged.

        Although the defendant claimed that this confession was false – instigated and crafted
by Agent Elrod, and secured by virtue of his false promises – the jury also heard contrary
testimony from Investigator Seals and Agent Elrod. It was the province of the jury as the
finder of fact to assess the credibility of these witnesses and resolve the conflicts between
their testimony. We will not disturb their decision in this regard on appeal.

        We observe, however, that the defendant challenges the trial court’s decision to
decline to suppress the defendant’s confession as a violation of his constitutional rights.
Were a reviewing court to find merit to such a claim, this thread of evidence, which standing
alone suffices to support the jury’s conclusion concerning sexual penetration, would have
been absent from the comprehensive tapestry viewed by the jury in ascertaining the
defendant’s guilt. Nonetheless, the other remaining evidence would suffice to support the
jury’s conclusion.

       Devoid of confession, with an aphasic toddler as a victim and an utter dearth of
eyewitnesses, the occurrence of sexual penetration of the victim by the defendant could not
be established by direct evidence. However, “[a] criminal offense may, of course, be

                                              -30-
established exclusively by circumstantial evidence.” Sisk, 343 S.W.3d at 65. Our method
and standards of review are “the same whether the conviction is based upon direct or
circumstantial evidence.” Id. (internal quotations omitted).

        In this case, three expert witnesses – Nurse Spada, Dr. Bruns, and Dr. Smith – testified
that the victim was brought into the hospital on the night in question with severe trauma to
her vaginal area. Two of these witnesses testified that, in their expert opinion these injuries
were the result of intentional sexual abuse, and could not have occurred by accident. Both
Nurse Spada and Dr. Smith specifically testified that this kind of injury could only have
resulted from the penetration of the victim’s vagina by an object. There was no contrary
testimony concerning the nature of the victim’s injuries. From this testimony, a reasonable
jury could conclude that the victim’s genitalia had been intruded upon by “any part of a
person’s body or . . . any object,” as required to establish sexual penetration as defined by
section 501(7).

         The only remaining conclusion made by the jury that must find support in the evidence
is that this penetration was committed by the defendant. In this regard, three expert witnesses
testified that the victim’s injuries had occurred within the preceding twenty-four hours.
Expert witnesses also testified that the bruises on the victim’s body would have been evident
to those around the victim within less than an hour of her injury and that the blood coming
from the victim’s vagina would have been evident to anyone changing the victim’s diaper.
The victim’s mother and the victim’s aunt testified concerning the victim’s whereabouts in
the twenty-four hours immediately preceding her injury. Both witnesses testified that the
victim was never alone with another adult and that the victim had no visible injuries when
they left her. Although the defendant testified directly that he did not sexually penetrate the
victim, the jury was free to discredit this testimony and credit the testimony that establishes,
through circumstantial evidence, that the defendant was the only individual who was alone
with the victim during the period of time in which her injuries must have occurred and was
the only one who had the opportunity to sexually penetrate her.

       The defendant urges that the State’s evidence is deficient because the tests performed
by the TBI did not reveal evidence of semen in swabs taken from the victim and revealed
only six spermatozoa (an unusually low number) in a single slide taken from the victim’s
vaginal swab. Moreover, ordinary yeast cells could appear very similar to these spermatozoa,
given the manner in which they had degraded. However, no evidence concerning semen or
spermatozoa is necessary to support the defendant’s conviction of rape of a child. The
relevant statute specifically states that rape occurs when the victim is penetrated by “any
object,” not just a penis, and that “emission of semen is not required.” T.C.A. 39-13-501(7).
Consequently, arguments of this nature are to no avail for the defendant. Likewise, the
defendant urges that his conviction cannot stand because Nurse Spada testified that the

                                              -31-
visible portion of the victim’s hymen appeared to be intact. However, the statute does not
require that a victim’s hymen be broken before sexual penetration will be deemed to have
occurred. It requires only “any . . . intrusion, however slight” into the victim’s genital
opening. Moreover, Nurse Spada testified that she did not get a complete view of the
victim’s hymen due to an obstructing blood clot, and that even if the victim’s hymen was
completely intact this fact would not preclude the possibility that she had been sexually
assaulted.

         The defendant also argues that the State failed to prove that any penetration of the
victim by the defendant was intentional. However, Section 522(a) does not specify the
mental state required in order to commit rape of a child, and where a statutory definition
neither provides for nor dispenses with the culpable mental state necessary to commit a
violation, it is well established that “intent, knowledge, or recklessness suffices to establish
the culpable mental state.” T.C.A. 39-11-301(c). Regardless, two expert witnesses testified
in this case that the victim’s injuries could not have occurred by accident, and from this
testimony a reasonable jury could have concluded beyond a reasonable doubt that the
penetration that occurred was intentional. The defendant further urges that the State failed
to establish that any penetration of the victim by the defendant was “of a sexual nature.”
However, although the crime of rape of a child prohibits “unlawful sexual penetration of a
victim,” the term “sexual penetration” has been defined by statute as encompassing “any .
. . intrusion, however slight, of any part of a person’s body or of any object into the genital
or anal openings of the victim. . . .” T.C.A. §39-13-522(a). Conspicuously absent from this
definition is any requirement that the penetration at issue be done for purposes of sexual
gratification. Consequently, the State need only establish that the requisite penetration
occurred, and that it was done by the defendant in an intentional, knowing, or reckless
manner. The State does not have to establish that the defendant intended for the penetration
to be sexual in nature or that the defendant committed the act for purposes of sexual
gratification.

        Taken as a whole, there is evidence to support a reasonable jury’s conclusion that
every element of the statute was satisfied by the defendant’s conduct. The defendant is
entitled to no relief on this issue, and the judgment of the trial court is accordingly affirmed.

                                               II.

        The defendant’s second claim is that the trial court erred in failing to suppress his
confession on the grounds that it was obtained in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, section 9 of the Constitution of
Tennessee because (1) he was questioned by police after he asserted his right to counsel and
(2) his confession was involuntary, having been compelled by false promises made to him

                                              -32-
by Agent Elrod. On appeal, a “trial court’s findings of fact in a suppression hearing will be
upheld unless the evidence preponderates otherwise.” State v. Davis, 2011 Tenn. LEXIS
962, at *14 (Tenn. Oct. 17, 2011) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)).
“When the trial court has seen and heard the witnesses testify, we must afford considerable
deference to the factual determinations made by the trial court.” Id. Moreover, “[t]he party
prevailing in the trial court is entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Id. (quoting Odom, 928 S.W.2d at 23)). A trial court’s
application of law to the facts is reviewed de novo without a presumption of correctness. Id.

        It is well established that as a general rule both the Fifth Amendment of the United
States Constitution and Article I, section 9 of the Tennessee Constitution require the police
to cease questioning after a suspect invokes his right to counsel until the defendant’s counsel
is present. See, e.g., Miranda v. Arizona, 384 U.S. 436, 474 (1966); State v. Huddleston, 924
S.W.2d 666, 669 (Tenn. 1996). Moreover, both the Fifth Amendment of the United States
Constitution and Article I, section 9 of the Tennessee Constitution require that any
confession made by a defendant be voluntary rather than compelled by the police. See, e.g.,
Bram v. United States, 168 U.S. 532, 542-43 (1897); State v. Smith, 933 S.W.2d 450, 455
(Tenn. 1996). “The test of voluntariness for confessions under Article I, [section] 9 of the
Tennessee Constitution is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” Smith, 933 S.W.2d at 455. “Promises of
leniency by state officers do not render subsequent confessions involuntary per se,” rather,
the “critical question is whether the behavior of the state’s law enforcement officials was
such as to overbear petitioner’s will to resist and bring about [a] confession[] not freely
self-determined.” Id. (internal quotations omitted).

         In this case, the trial court was confronted with starkly conflicting testimony from the
three witnesses who testified concerning the suppression issues. The defendant testified that
he plainly asserted his right to counsel and that Agent Elrod promised that he would not go
to jail and would be reunited with his children if he confessed. He testified that Agent Elrod
fabricated a story for him to tell to Investigator Seals and that he told that story, knowing it
to be a lie, because he was overwhelmed with a desire to have his children returned and to
get them away from wife’s parents, who were neglecting and abusing them.

       Conversely, Agent Elrod testified that defendant executed a written Miranda waiver
expressly waiving his right to counsel prior to making his statement. In addition, Agent
Elrod testified that the defendant never asserted his right to counsel and never made so much
as an ambiguous reference to an attorney. Agent Elrod testified that had the defendant
requested a lawyer, he would have ceased all questioning. Agent Elrod denied making any
promises to the defendant concerning his treatment or the possibility of seeing his children

                                              -33-
if he confessed. Investigator Seals also testified that the defendant executed a written
Miranda waiver prior to speaking to him. He further testified that he never heard the
defendant assert his right to counsel and that the defendant never indicated to him that his
confession was the result of any understanding between himself and Agent Elrod concerning
his treatment or the return of his children.

         The trial court assessed the credibility and demeanor of these conflicting witnesses
and found as factual matters that: (1) the defendant never asserted his right to counsel; (2)
Agent Elrod did not help the defendant fabricate his confession; and (3) the defendant’s
confession was not coerced by any promises made by Agent Elrod. These were
quintessential factual determinations, and we afford them great deference on appeal. The
defendant urges that the trial court’s findings are unsupported by the facts; that “the
defendant’s position [that he was innocent] did not magically change when he went to the
jail to be polygraphed.” However, the defendant’s act of failing the polygraph (whether by
one question, as he claimed in his testimony, or by three, as attested to by Agent Elrod)
provides strong motive for his subsequent confession. Moreover, as the trial court observed,
by this stage of the investigation, the defendant was well aware of the severity of the victim’s
injuries. It simply strains credulity to conclude that the defendant could have possibly
believed that giving a confession at this point would allow him to regain custody of his
daughter or avoid serving any jail time. Consequently, we will not overturn the trial court’s
factual findings pertaining to the suppression issue.

       Absent any assertion by the defendant of his right to counsel or any promises made
by Agent Elrod, there is simply no factual basis on which this court might predicate a holding
of constitutional error. Accordingly, the defendant is entitled to no relief on this issue.

                                               III.

       The defendant claims that the trial court erred by refusing to allow him to question his
ex-wife regarding the “new man” in her life. “Admission of evidence is entrusted to the
sound discretion of the trial court, and a trial court’s ruling on evidence will be disturbed only
upon a clear showing of abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn.
2004). A trial court’s exercise of discretion will not be reversed unless the court “applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused
an injustice to the party complaining.” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669
(Tenn. 1997)). The defendant has failed to established that the trial court abused its
discretion by refusing to allow him to question her regarding her “new man.”

       As a general rule, all relevant evidence is admissible unless a particular constitutional
provision, statute, or rule excludes it. Tenn. R. Evid. 402. However, relevant evidence may

                                              -34-
be excluded if “its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. The
defendant had failed to establish that the trial court acted illogically or misapplied these rules
when it sustained the State’s objection to his question.

       While the defendant is generally correct in his assertion that a party may offer
evidence that a witness is “biased in favor of or prejudiced against the party or another
witness,” the defendant has failed to show how questions regarding his ex-wife’s current love
life would be relevant to the issue of her bias. The witness could quite easily be currently
seeing other people and still be biased in favor of defendant, or be alone and still be biased
against him. The defendant has not shown that the witness had any motive to alter her
testimony based solely on her then-present relationship status. Consequently, the trial court
did not defy all logic and reasoning by determining that, on the facts of this case, this
question delved into a subject that had no discernable tendency to “make the existence of any
[bias] more probable or less probable than it would be without the evidence,” as required to
establish relevance under Tennessee Rule of Evidence 401.

        More importantly, the defendant’s counsel had just asked his ex-wife whether she still
loved the defendant, and she admitted that she did not. Consequently, any further
questioning that was intended solely to establish that the witness no longer loved the
defendant, and was therefore biased against him, could fairly be considered needlessly
cumulative under Rule 403. Moreover, allowing the defendant to parade details of his ex-
wife’s current love life in front of the jury posed a realistic danger of confusing the jury and
distracting them from the relevant issues. Rule 403 expressly permits trial courts to preclude
questioning on these grounds. Lastly, to the extent the defendant sought to establish through
this question that his ex-wife was biased against him, a host of other, more direct questions
were available to accomplish this task. The defendant could have asked his ex-wife directly
if she was biased, and whether she hated the defendant, wanted to see him suffer, or would
lie to see him punished. These would have been fair, relevant questions that would have
allowed the jury to assess his ex-wife’s credibility with respect to the issue of bias without
distracting the jury with irrelevant details concerning her love life.

        That many of these questions, and others like them, were not asked by defense counsel
is glaring omission. The defendant states that the right to explore a witness for bias is a
fundamental right and insinuates (without directly asserting) that the restriction of this right
– created by the trial court’s sustaining of the State’s objection to his question – violated his
right to confrontation under the Sixth Amendment of the United States Constitution and
Article I, section 9 of the Tennessee Constitution. See State v. Sayles, 49 S.W.3d 275, 279
(2001). However, in light of his failure to make any meaningful effort to establish bias by

                                               -35-
more direct and proper questions, we will not hold that the defendant’s right to confrontation
was unconstitutionally curtailed.

                                               IV.

        Lastly, the defendant claims that his conviction should be reversed because, during
closing rebuttal argument, the State’s attorney “thanked” the defendant’s counsel for “doing
an excellent job in this case because he does what he gets paid to do and that’s . . . to get [his
client] off.” While our supreme court has observed that “closing argument is a valuable
privilege that should not be unduly restricted,” it has also made clear that a prosecutor should
not engage in “derogatory remarks.” State v. Reid, 164 S.W.3d 286, 321 (Tenn. 2005).
However, “prosecutorial misconduct does not amount to reversible error absent a showing
that it has affected the outcome of the case to the prejudice of the defendant.” Id.

       We agree with the defendant that the prosecutor’s comments were inappropriate. The
defendant is correct that it is the job of defense counsel, just as much as the prosecutor, to
ensure that the defendant receives a fair trial, that his constitutional rights are protected, and
that the finder of fact is presented with all of the relevant evidence in an honest and fair
manner. Quite simply, the prosecutor should not have stated that it was the job of the
defendant’s counsel to “get” him “off”; the sarcasm of his ostensible expression of gratitude
toward opposing counsel virtually oozes off the pages of the transcript. Whether this
inappropriate remark reaches the level of full-blown legally-cognizable prosecutorial
misconduct, however, is an issue that we need not reach, because the defendant has not
established prejudice on the facts of this case.

        In conducting our assessment of whether a defendant has established prejudice, “we
must consider: (1) the conduct complained of viewed in light of the facts and circumstances
of the case; (2) the curative measures undertaken by the court and the prosecution; (3) the
intent of the prosecutor in making the improper arguments; (4) the cumulative effect of the
improper conduct and any other errors in the record; and (5) the relative strength and
weakness of the case.” Id. Two of these five factors weigh in the defendant’s favor. The
prosecutor’s intent in making the improper comment cannot have been benign; at best, it was
intended to belittle opposing counsel, and, at worst, it was meant to distract the jury from the
matters properly before it by focusing the jury’s attention on the defense counsel’s credibility
instead of the credibility of the witnesses. Moreover, the trial court missed an opportunity
to take a curative step when it overruled the defendant’s objection rather than sustaining it
(although the prosecutor did modestly mitigate the damage done by immediately switching
the discussion to proper topics after the objection was interposed).

       However, the remaining three factors weigh against a finding of prejudice and

                                               -36-
strongly outweigh the two factors discussed above. The conduct complained of constituted
but a single sentence uttered over the course of a three-day trial. There do not appear to
have been any other instances of arguable prosecutorial misconduct or other such errors (that
might have created a “cumulative effect” when combined with this single remark)
committed over the course of the three-day trial. Most importantly, the case against this
defendant was extremely strong. This defendant confessed, and his confession was
supported by the testimony of numerous witnesses who established that (1) the victim had
been sexually assaulted and (2) the defendant was the only one who was alone with the
victim during the time period in which that assault must have occurred. In light of this
evidence, we conclude that the defendant cannot establish that the prosecutor’s inappropriate
remark affected the jury’s verdict to his prejudice. The defendant’s claim is therefore denied.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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