State of Tennessee v. Joshua R. Key

11/03/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 20, 2026 Session STATE OF TENNESSEE v. JOSHUA R. KEY Appeal from the Criminal Court for Sumner County No. 2020-CR-469 Jennifer S. Nichols, Judge ___________________________________ No. M2025-01326-CCA-R3-CD ___________________________________ Defendant, Joshua R. Key, entered open guilty pleas to two counts of rape. Following a sentencing hearing, the trial court imposed concurrent twelve-year sentences to be served in confinement. On appeal, Defendant argues the trial court erred in its application of two enhancement factors and its failure to give appropriate weight to mitigating evidence, which he claims resulted in an excessive sentence and precluded consideration of alternative sentencing. Following our review of the record, the briefs and arguments of the parties, and the applicable law, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed JILL BARTEE AYERS, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and JOHN W. CAMPBELL, SR., JJ., joined. Peter J. Strianse, Nashville, Tennessee, for the appellant, Joshua R. Key. Jonathan Skrmetti, Attorney General and Reporter; Elizabeth Evan, Assistant Attorney General; Thomas B. Dean, District Attorney General; and Nathan S. Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Factual and Procedural Background In September 2020, a Sumner County grand jury indicted Defendant on two counts of rape for the digital and penile penetration of D.T. 1 on February 29, 2020. Defendant entered open guilty pleas to both counts on March 14, 2025, leaving the length 1 We will follow this court’s policy in sexual assault cases of referring to the victim by her initials. and manner of service of the sentences to the trial court. The parties agreed that the sentences for the two counts would run concurrently. The relevant facts underlying the plea, as provided by the State at the plea submission hearing, are as follows: [H]ad this case proceeded to trial, the State would have proven that during the early morning hours of February 29th, 2020, D.T., a whi[t]e female, older than 18 years of age, who is more particularly identified within the indictment[,] was consuming alcoholic beverages with friends at Keller’s Bar. While at the bar, D.T. became intoxicated and was taken by her sister and another individual to the home of the defendant, Joshua R. Key, located on Lindale Drive here in Sumner County, because they believed it was a safe place for her to rest. The defendant, who is the significant other of one of the friends who had accompanied D.T. to the bar that night, was home when D.T. was brought to the residence. D.T.’s sister laid her down on a couch located in the living room of the home and returned to the bar. As D.T. la[y] on the couch intoxicated and unable to defend herself, the defendant entered the living room and, without her consent, digitally penetrated her vagina. After digitally penetrating D.T., the defendant left the room, retrieved a condom, and returned to the living room whereupon he got on top of D.T. and penetrated her vagina with his penis, also without her consent. She was awake during these incidents and realized what was happening to her, but was unable to defend herself. D.T. was able to summon law enforcement help and they arrived shortly thereafter. During an interview with then detective, now Sheriff Eric Craddock, the defendant admitted to digitally penetrating Ms. D.T.’s vagina and also admitted to quote, “getting on top of her and wiggling around,” but claimed he did not know the female on the couch was D.T., stating that he believed that she was actually his girlfriend of 13 years. The defendant said he did not realize D.T. was the female on the couch until after the penetration had taken place, claiming it was so dark in the room that he could not tell the difference between the two women. -2-  During the course of this investigation, Sheriff Craddock seized the defendant’s cellular phone and an extraction of that phone was completed by the TBI, pursuant to a lawfully issued search warrant. As the State was preparing this case for trial, we reviewed the defendant’s cellular phone download and discovered within the images portion of the extraction report numerous thumbnail artifacts featuring images of a female lying facedown on the defendant’s living room couch. The female appeared to be unconscious and unaware she was being photographed. The room in which the photographs were taken is well lit and the female’s clothing, hair, and body are fully visible. Following the initial images of the unconscious female, two images of a female’s vagina were also found. The location of these images indicate[s] that they were created on February 29th, 2020. D.T. later identified the clothing worn by the woman in these photographs as being the clothing she was wearing on the night of her rape and also identified the explicit photographs as being of her. The angle of one of the explicit photographs indicates the female was turned over onto her back when it was made. At the July 29, 2025 sentencing hearing, the court reviewed Defendant’s sentencing memorandum and character letters submitted on Defendant’s behalf before proceeding. The State introduced Defendant’s presentence investigative report, including the STRONG-R assessment and a psychosexual evaluation. The State also introduced certified copies of Defendant’s Sumner County DUI convictions from 2010 and April 2024 2 and seven Macon County convictions for public intoxication and disorderly conduct in 2001, passing worthless checks in 2003 and 2006, leaving the scene of an accident in 2005, and simple possession of marijuana and possession of drug paraphernalia in 2007. D.T. attended the hearing but elected to have the prosecutor read her signed victim impact statement, which was admitted as an exhibit. D.T. knew Defendant as the boyfriend of Leslie Cunningham, who was a friend of her sister’s, and had seen him only a few times in passing. On the night of the offenses, she met her sister and Ms. Cunningham at Keller’s, became dizzy, passed out, and vomited. Her sister and a male companion took her to the home Defendant shared with Ms. Cunningham because they believed it would be a safe place for her to rest. 2 The April 2024 DUI conviction occurred while Defendant was on bond in the present case. -3-  D.T. described being awakened by Defendant’s digital penetration. When she tried to move and look at him, he forced her head back by her neck. She stated that she could neither move nor speak and lay crying while Defendant held her down and then penetrated her with his penis. She was afraid he would kill her. After Defendant stopped and went outside, she searched the home for her cell phone and asked other people in the home for help. When Defendant returned, he gave her the cell phone and said it had been on the porch. She immediately called her sister and sought assistance. D.T. said the rape had affected her relationships, ability to work, and enjoyment of activities. She described daily fear and anxiety, recurring nightmares, and an inability to sleep through the night or for more than four hours at a time since the assaults. She could not afford the treatment she believed she needed and described the strain of the case remaining unresolved for five years. She asked the court to impose the maximum sentence. In its argument, the State emphasized Defendant’s conduct while on bond, including a positive cocaine screen and two DUI charges. Defendant’s bond had initially been increased and ultimately revoked based on his subsequent DUI charges. The State also noted Defendant’s admitted marijuana use since his teenage years and argued that his criminal history and inability to comply with bond conditions warranted the maximum sentence in confinement. Defendant relied on his sentencing memorandum, character letters, family support, employment prospects, health, and asserted remorse. Defendant presented proof of his participation in Celebrate Recovery, a program conducted in the jail by Joshua Woodlief of Northfield Church. Mr. Woodlief noted that Defendant was a productive participant who was humble and teachable. Defendant said he had been candid during the psychosexual evaluation and that he had been offered a construction job upon release. Deborah Hite, Defendant’s mother, testified that Defendant was forty-eight years old and her only child. She and Defendant’s stepfather lived in a two-bedroom trailer in Bethpage, where Defendant could reside if granted an alternative sentence. She worked three days a week, and her husband, who had been disabled since 2009, was generally at home. Her husband was willing to serve as a custodian for Defendant and would do whatever he could to help Defendant comply with the law. Ms. Hite testified that Defendant’s father died in a vehicle accident when Defendant was eight months old and that the loss had affected him throughout his life. She described Defendant as caring and generous, citing occasions when he purchased clothing or gave money to people who had lost their homes or needed food or gasoline. She confirmed Defendant’s offer to work in construction if released. Ms. Hite also -4- described Defendant’s heart problems, pneumonia, respiratory infections, and high blood pressure, including a trip from the jail to an emergency room for pneumonia and heart issues. She believed Defendant’s remorse was sincere because he had broken down and cried to her multiple times. On cross-examination, Ms. Hite acknowledged that Defendant moved into her home after he was charged in this case and had to leave Ms. Cunningham’s home. During his release on bond, he also lived with James Keller. Defendant was living with Ms. Hite when he incurred the DUI charges; she did not know where he was living when he failed the cocaine screen. She acknowledged Defendant’s alcohol problem and past drug use. When asked what she could do to control his conduct that she had not done before, she said she would have rules in her home and believed he wanted to get his life back on track. She also admitted that Defendant’s potential employer was aware of the rape allegations but did not know about the photographs Defendant had taken of the victim. James Keller, a longtime friend of Defendant and the operations manager of his parents’ restaurant, testified that Defendant had lived with him on two occasions after Defendant’s relationship with Ms. Cunningham ended. Mr. Keller described Defendant’s construction skills, explaining that Defendant built the home he had shared with Ms. Cunningham from the ground up. He also described Defendant’s relationship with Ms. Cunningham’s children, including his regular attendance at the younger child’s baseball games and practices. Mr. Keller considered Defendant one of his best friends and described him as an outstanding person who would help others. Mr. Keller visited Defendant in jail weekly and believed he had become more remorseful during the preceding forty-five to sixty days. Defendant had told him that, if placed on probation, he would straighten up and “do the right thing.” Mr. Keller believed Defendant could succeed but would need support such as that available from his mother. He testified that Defendant’s drinking had increased over the last seven years and attributed that change to problems in Defendant’s relationship with Ms. Cunningham. On cross-examination, Mr. Keller confirmed that Defendant lived with him while on bond, but he could not identify the dates or say whether the failed cocaine screen occurred during that period. He acknowledged that Defendant’s drinking had become problematic. In response to the court’s questions, Mr. Keller stated that Defendant frequently visited the restaurant while on bond and sometimes drank there. He had seen the victim at the restaurant the night of the rape and had also reviewed video of her departure; he acknowledged that the victim was very intoxicated when she left. -5-  Defendant made an unsworn allocution. He apologized to the victim and her family and described his feelings of pain, guilt, and shame. He said he wished he could undo his actions and told the victim, “You didn’t deserve it.” He asked for forgiveness and expressed a desire to make amends. Based on Defendant’s criminal history and drug use, the victim’s intoxication and lasting trauma, and the decision to leave the victim at Defendant’s home because those accompanying her trusted him, the State argued for the application of enhancement factors (1): previous criminal convictions or behavior beyond that necessary to establish the range; (4): the victim’s particular vulnerability; (6): particularly great personal injuries; (7): gratification of Defendant’s desire for pleasure or excitement; and (14): abuse of a position of private trust. See T.C.A. § 40-35-114. The State also argued that Defendant did not acknowledge the photographs until they were discovered shortly before trial, which undermined his claimed candor and remorse. The State noted that Defendant’s STRONG-R assessment placed Defendant in a high-risk category in attitudes and behaviors and in friends, associates, and residential circumstances; it identified moderate concerns in aggression and partner, family, and children, and lower concerns in mental health, alcohol and drug use, and education and employment. The psychosexual evaluation put Defendant at a high risk based on dynamic factors, an average risk based on static factors, and a moderate risk associated with sexual interests. The State also pointed out that Defendant gave different accounts of the assault in responding to the psychosexual evaluation and argued that these inconsistencies showed minimization rather than an unreserved acceptance of responsibility. The State also argued that Defendant’s proposed support network consisted of the same people available to him when he violated his bond conditions. It requested a sentence of twelve years in confinement to be served consecutively to Defendant’s DUI sentence. Defendant disputed the application of enhancement factors (7) and (14) and argued that the absence of another motive did not itself establish that Defendant acted for pleasure or excitement. As to private trust, Defendant maintained that no relationship of trust had been established because Defendant did not know the victim would be brought to his home and had not agreed to care for her. Defendant again emphasized his work history, health, family contributions, candor, and remorse and asked the court to consider an alternative sentence. After a recess to review the materials and arguments, the trial court stated that it had considered the presentence investigative report, including the STRONG-R assessment and psychosexual evaluation, Defendant’s criminal history, character letters, -6- sentencing memorandum, witness testimony, Defendant’s allocution, and counsel’s arguments. The court rejected the suggestion that Defendant was unaware the victim had been brought to the home, citing his own description of her placement on the couch while he was in the recliner. It expressed concern that the psychosexual evaluation identified high risk in key areas and moderate risk in others, and that the separate STRONG-R assessment also identified high risk in significant areas. The court addressed mitigating factors pursuant to Tennessee Code Annotated section 40-35-113(13). It found Ms. Hite credible and devoted to Defendant but concluded that neither she nor Defendant’s disabled stepfather could be expected to control the conduct of a forty-eight-year-old man. The court noted that Defendant had already failed to comply with the law while on bond and living with his family. It acknowledged Defendant’s strong work history and health concerns but found that neither had prevented the offenses nor subsequent unlawful conduct. Based on these factors, the court assigned “some weight” to the catchall mitigating factor, noting Defendant had a “family that loves [him]” and there were “people that would hire [him].” Nevertheless, the court questioned what he would do with those opportunities. The court applied enhancement factor (1) based on Defendant’s DUI convictions and the seven Macon County convictions. It applied factor (4) because the victim had been incapacitated and unable to defend herself. The court declined to apply factor (6), finding the victim’s account credible but concluding that the injuries she described, although serious, were those expected from a rape rather than injuries particularly great for the offense. The court applied factor (7) based in part on Defendant’s description of rubbing the victim, obtaining a condom, and his sexual conduct. It found no indication that he acted out of revenge or to demonstrate power over the victim and concluded that he acted because of his sexual desire. The court also applied factor (14), finding that Ms. Cunningham and the victim’s sister trusted that the victim would be safe in the home and that Defendant abused that trust. The court rejected the suggestion that the trust had to be expressly given and accepted, reasoning that the victim had been taken to a familiar home, rather than a stranger’s home, to sleep safely. After weighing the enhancement and mitigating factors, the court imposed twelve-year sentences for each count, to be served concurrently pursuant to the plea agreement. In determining the manner of service, the court found confinement necessary to protect society in light of Defendant’s long history of criminal conduct, including his admitted drug use and use of cocaine while on bond. The court acknowledged the positive character letters filed on Defendant’s behalf and Defendant’s participation in the recovery program. However, the court contrasted Defendant’s potential for rehabilitation -7- with his decision to commit and photograph the assaults, his violations while on bond, the risk assessments, and his inconsistent descriptions of the assault which the court found reflected a continuing failure to accept responsibility. The court also found confinement necessary to avoid depreciating the seriousness of the offenses. It considered Defendant’s conduct while on bond an indication of his behavior if released. It ordered the twelve-year sentences to be served in confinement but permitted the separate DUI sentence to run concurrently in recognition of the character letters and the testimony of Ms. Hite and Mr. Keller. The court reiterated the plea provisions requiring sex offender registration, community supervision for life, a $1,000 sex offender tax per count, and no contact with the victim or her family. Defendant timely appealed. Analysis I. Length of Sentence Defendant argues that the trial court improperly applied enhancement factors (7) and (14), failed to give adequate weight to mitigating circumstances, and imposed an excessive maximum sentence. The State responds that the trial court acted within its discretion and that any error in the challenged enhancement factors does not invalidate a within-range sentence supported by the remaining factors. We agree with the State. On appeal, the party challenging the sentence bears the burden of establishing that the sentence is improper. State v. Branham, 501 S.W.3d 577, 595 (Tenn. Crim. App. 2016). This court reviews sentencing decisions under an “abuse of discretion standard of review, granting a presumption of reasonableness to within-range sentencing decisions that reflect a proper application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “A trial court abuses its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010) (citing State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010)). Once a trial court determines the appropriate range of punishment, the trial court must consider: (1) the evidence received at trial and the sentencing hearing; (2) the presentence report; (3) any arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct; (5) any applicable mitigating and enhancement factors; (6) statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement the defendant -8- makes on his behalf; and (8) results of the validated risk and needs assessment. T.C.A. § 40-35-210(a), (b). Additionally, the sentence imposed should be “no greater than that deserved for the offense committed” and “the least severe measure necessary to achieve the purposes for which the sentence was imposed.” Id. at § 40-35-103(2), (4). When adjusting the length of a sentence within the appropriate range, a trial court is guided by, but not bound by, any applicable mitigating and enhancement factors. State v. Mosley, No. W2022-01424-CCA-R3-CD, 2024 WL 1406156, at *21 (Tenn. Crim. App. Apr. 2, 2024) (quoting Bise, 380 S.W.3d at 706), perm. app. denied (Tenn. July 17, 2024). It is within the trial court’s sound discretion to weigh any applicable mitigating or enhancement factors. State v. Nelson, No. M2023-00176-CCA-R3-CD, 2024 WL 1192985, at *15 (Tenn. Crim. App. Mar. 20, 2024) (quoting State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2007)), no perm. app. filed. Thus, “a trial court’s misapplication of an enhancement or mitigating factor does not invalidate the sentence imposed unless the trial court wholly departed” from the sentencing act. Bise, 380 S.W.3d at 706. As a Range I offender convicted of Class B felonies, Defendant faced eight to twelve years for each conviction. T.C.A. § 40-35-112(a)(2). The sentences imposed by the trial court fall within that range. Contrary to Defendant’s suggestion that the minimum term is presumptive, the 2005 amendments to Tennessee Code Annotated section 40-35-210 eliminated the former presumptive minimum sentence and made the factors advisory. Bise, 380 S.W.3d at 698, 704-06. Under enhancement factor (7), a sentence may be enhanced when the offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement. T.C.A. § 40-35-114(7). This factor may apply to rape, but sexual penetration alone does not establish the required motive. State v. Kissinger, 922 S.W.2d 482, 489-91 (Tenn. 1996). The State must present objective evidence of the defendant’s motivation beyond an inference drawn solely from the nature of the offense. State v. Arnett, 49 S.W.3d 250, 261-62 (Tenn. 2001). Such evidence may include sexually explicit remarks or conduct, including fondling or kissing. Id. at 262. Here, the trial court relied on Defendant’s description of rubbing D.T., retrieving a condom, and his statements about sexual arousal, together with the photographs he took of D.T.’s intimate anatomy. These circumstances supplied objective evidence of gratification beyond the elements of rape. The trial court did not abuse its discretion in applying factor (7). Defendant next challenges factor (14), arguing that he did not occupy a position of private trust with D.T. See T.C.A. § 40-35-114(14). A position of private trust depends on the nature of the relationship and whether it promoted confidence, reliability, or faith in the defendant; the position must facilitate the offense. Kissinger, 922 S.W.2d at 488- 89. For an adult victim, the nature of the relationship must cause the victim to be -9- particularly vulnerable. State v. Gutierrez, 5 S.W.3d 641, 645-46 (Tenn. 1999). “It is the exploitation of this vulnerability to achieve criminal purposes which is deemed more blameworthy and thus justifies application of the enhancement factor.” Id. at 646. Mere cohabitation by competent adults does not suffice. Id. at 645. The trial court found trust in D.T.’s sister’s and Defendant’s partner’s decision to leave D.T. at the home in Defendant’s presence. Their expectation that she would be safe was understandable, but D.T. had seen Defendant only a few times and was already severely intoxicated before she arrived. The State identifies no relationship between Defendant and D.T. that produced her vulnerability. We therefore conclude that the record does not support application of factor (14). See State v. Canada, No. M2025-00397-CCA-R3-CD, 2026 WL 796360, at *14 (Tenn. Crim. App. Mar. 23, 2026) (concluding that the trial court erred in finding the defendant abused a position of private trust when the victim was merely a neighbor and had never been alone in the house with the defendant before the offenses occurred). However, misapplication of one enhancement factor does not require resentencing when the within-range decision otherwise complies with the purposes and principles of sentencing. Bise, 380 S.W.3d at 709. Here, Defendant does not challenge two of the factors applied by the trial court, and we have concluded that his challenge to the application of enhancement factor (7) was not an abuse of discretion. See State v. Ambrose, No. M2023-00097-CCA-R3-CD, 2024 WL 3596231, at *10 (Tenn. Crim. App. July 31, 2024) (citing State v. Dotson, 450 S.W.3d 1, 103 (Tenn. 2014)) (noting that “the application of a single enhancement factor supports an enhanced sentence”), perm. app. denied (Tenn. Feb. 20, 2025). Next, Defendant asserts that his employment prospects, stable home, family and church support, participation in Celebrate Recovery, and remorse establish substantial mitigation and rehabilitative potential. The court expressly considered these factors, credited the support available to Defendant, and assigned the catchall mitigating factor “some weight.” “[W]hile the trial court should consider mitigating evidence put forth by a defendant, it is within the trial court’s discretion to determine what weight, if any, it assigns to such mitigating evidence.” State v. Hatchett, No. E2023-01587-CCA-R3-CD, 2024 WL 4892511, at *7 (Tenn. Crim. App. Nov. 26, 2024), perm. app. denied (Tenn. Apr. 17, 2025). The court also explained that Defendant’s behavior while on bond, high risk assessments, and inconsistent accounts of the offenses far outweighed any mitigating factors. The appellate court cannot substitute its preferred weight for that of the trial court. See Carter, 254 S.W.3d at 345-46. The trial court did not abuse its discretion in imposing within-range sentences of twelve years for each count. - 10 -  II. Alternative Sentencing Defendant argues that if his sentences are reduced to ten years or less, as he argues they should be, this court should then consider probation or split confinement. The State contends that this is a separate issue which was omitted from Defendant’s statement of issues. See Tenn. R. App. P. 27(a)(4). Defendant’s statement of the issues broadly challenges the excessive sentence, and his brief separately argues for alternative sentencing upon a reduction. We need not decide the extent of any waiver, however, because the conditional request fails on its own terms. Because we affirm the twelve- year sentences, Defendant is ineligible for probation under Tennessee Code Annotated section 40-35-303(a) because each sentence exceeds ten years. Defendant correctly observes that rape is not categorically excluded from probation and that a one hundred percent release eligibility classification does not itself resolve probation eligibility. See State v. Trent, 533 S.W.3d 282, 291-92 (Tenn. 2017). But those arguments do not overcome the ten-year limit applicable to the sentences actually imposed. Having concluded that the twelve-year sentences are proper, we decline Defendant’s request to reduce them to permit consideration of probation. See State v. Potts, No. M2020-01623- CCA-R3-CD, 2022 WL 2348233, at *32 (Tenn. Crim. App. June 29, 2022) (affirming the sentence length of twelve years and declining the defendant’s request to reduce his sentence to ten years). CONCLUSION Based on the foregoing reasons, the judgments of the trial court are affirmed. s/Jill Bartee Ayers JILL BARTEE AYERS, JUDGE - 11 -