State of Tennessee v. John Shaffighi

                                                                                            12/15/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 25, 2023 Session

                 STATE OF TENNESSEE v. JOHN SHAFFIGHI

                   Appeal from the Criminal Court for Knox County
                          No. 56097 G. Scott Green, Judge
                      ___________________________________

                            No. E2022-00525-CCA-R3-CD
                        ___________________________________


A Knox County jury found the Defendant, John Shaffighi, guilty of aggravated rape and
aggravated sexual battery from events occurring in 1992. He was sentenced to an effective
term of twenty-five years. On appeal, the Defendant challenges the legal sufficiency of the
evidence supporting his convictions. He also asserts the trial court erred by (1) denying a
motion to dismiss in light of missing evidence; (2) allowing the victim’s forensic interview
to be played at trial; (3) denying his motion for a mistrial after testimony from the victim;
(4) limiting the testimony of his expert witness; (5) instructing the jury on its deliberation
during its deadlock; and (6) imposing the maximum sentence after misapplying
enhancement factors and failing to apply mitigating factors. The State concedes that the
Defendant was not sentenced properly under the pre-2005 sentencing statutes. Upon our
review, we affirm the Defendant’s convictions but respectfully remand the case for
resentencing in accordance with Blakely v. Washington, 

 (2004).

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

TOM GREENHOLTZ, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined.

Gregory P. Isaacs (on appeal and at trial), Franklin Ammons (at trial), and Ashlee B. Mathis
(at Ferguson hearing), Knoxville, Tennessee, for the appellant, John Shaffighi.

Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Nathaniel R. Ogle,
Joanie Stewart, and Leland Price, Assistant District Attorneys General, for the appellee,
State of Tennessee.
                                          OPINION


                               FACTUAL BACKGROUND

      On August 9, 1994, the Defendant was charged by presentment with one count of
aggravated rape and one count of aggravated sexual battery. The victim of both offenses
was a child who was less than thirteen years old at the time of the offenses. After being
charged, the Defendant left the country. Almost two decades later, the Defendant was
apprehended and transported to Knox County to face the charges against him. The trial
began on November 8, 2021.

       A.     STATE’S PROOF


       The victim, whose birthday was June 19, 1981, was forty years old at the time of
trial. When she was ten, she lived with her father, stepmother, and younger siblings on
Middlebrook Pike in Knox County.

       In October 1991, she began taking group classes a few days a week at the
Defendant’s karate studio. The victim performed well in the classes and was scheduled to
participate in the Junior Olympics in July 1992. In January 1992, the Defendant offered
her extra lessons to prepare for that competition. The victim’s father agreed to the extra
lessons, but he was unaware that the Defendant and the victim would be alone together.

        The victim was initially excited to take classes from the Defendant and “looked for
his approval . . . almost like a father figure.” However, after the private lessons began, he
started asking her to sit on his lap in his office or rubbing “the outside of [her] legs and into
the inside of [her] legs and moan[ing.]” No one else was in the building when he touched
her. When she sat on his lap, her back was “to his chest, and he would rub on the outside
of [her] legs and then rub towards the inner of [her] thigh. And [she] could feel what [she]
thought was his lower private part underneath [her].” The victim estimated that she sat on
the Defendant’s lap “five or six times.”

      After the victim told the Defendant she no longer wanted to sit on his lap, the
Defendant stopped but told her she “still had to do the fruit” as part of the extra sessions.
The Defendant told her that instead of working on forms or sparring, he had something that
would make her “better and stronger and make [her] hyper, and it would give [her] more
energy for class.”

       She explained that when they got to the studio for the private lessons, the Defendant
made her sit on a cinderblock on the edge of a karate mat. The Defendant tightly
blindfolded her with “his shirt or something,” and the studio lights were off. She heard


                                              -2-
him walk across the mat to and from his office “with his pants at his feet.” Then, he inserted
the fruit inside her mouth and instructed her to “suck it” but not to chew or bite it. He
encouraged her to “take more in” as he drew the fruit in and out of her mouth and made
noises. Initially, her mouth was dry, and she gagged. Eventually, “stuff” came out of the
fruit that the Defendant explained was “juice” she needed to swallow. Afterward, the
Defendant left her sitting blindfolded on the cinderblock while he returned to his office to
“put the fruit up.” As a child, the victim thought it was real fruit. As an adult, however,
she realized that it was his penis.

       The victim recalled that occasionally, instead of going straight to the studio after
picking her up, the Defendant stopped at his apartment across the street from the studio.
The Defendant insisted that the victim accompany him inside. The Defendant told her he
could make her muscles stronger by “put[ting] some of the juices on the back of [her] legs.”
The Defendant blindfolded the victim. At the Defendant’s request, she removed her pants
but not her underwear so the Defendant could rub the fruit juice on her legs. She stood on
the couch with her “legs on the tip of the couch and ben[t] over and h[e]ld the back of the
couch.” The victim kept her legs together, and the Defendant pushed the fruit between her
legs and breathed heavily. In the end, the Defendant wiped the juice off her legs, which
the victim found odd because it was supposed to strengthen her muscles.

        The fruit the Defendant rubbed on the back of the victim’s legs felt the same shape
as the fruit he put in her mouth. After she became an adult, the victim realized the
Defendant had been rubbing his penis on her legs. The victim estimated that the Defendant
rubbed juice on her legs five times. The victim said the fruit incidents occurred “about
fifteen times.”

        The victim was afraid of the Defendant because he was a “very strict teacher, and
[she] knew [she] wasn’t supposed to say anything.” After the fruit incidents, the Defendant
was in a “[g]ood mood all day.” He once told her, “[D]on’t tell anybody about this because
I’ll know.” She purposefully missed classes and car rides with the Defendant because she
felt she could not refuse him.

        The victim’s father noticed a decline in her attitude and grades after she started extra
lessons. He threatened to take away her activities, including karate, if she did not improve.
In the fall of 1992, the Defendant relocated to a larger karate studio, and the victim’s family
also moved across town to Fountain City. As a result, the victim’s father removed her from
the karate classes, and she hid her excitement about quitting because she did not “want
[her] dad to ask questions.”

      After moving to Fountain City, the victim told a friend about “sitting on [the
Defendant’s] lap.” The victim did not realize she had told her friend about “something
bad.” However, her friend “freaked out” and advised the victim to talk to her parents.
Around November 1992, the victim told her stepmother about sitting on the Defendant’s
lap. Her stepmother “was completely shocked.”

                                             -3-
       The victim’s stepmother contacted the authorities, and Tammy Mathes Judd with
the Department of Children’s Services (“DCS”) forensically interviewed the victim on
November 17, 1992. The interview was recorded, and the recording was played for the
jury. The interview was the first time the victim revealed everything the Defendant had
done. The victim said she had no “sexual knowledge” and had “[n]o sex talks with [her]
parents” at that age.

       On February 8, 1993, Ms. Mathes Judd and Investigator Ron Humphrey interviewed
the Defendant at the Knoxville Police Department. The Defendant had no apparent trouble
understanding the waiver of rights form, the questions being asked, or the meaning of the
interview. The Defendant acknowledged he knew the victim from karate lessons, but he
denied the allegations against him.

       During the interview, the Defendant initially denied that the victim had been to his
apartment. However, he eventually conceded “that sometimes the students would sit in the
car. Then it was like maybe at the—stand at the steps, and then it went all the way to being
at the hallway with the door open to his apartment.” However, the Defendant never
admitted to taking the victim into his apartment.

       B.     DEFENDANT’S PROOF


       The Defendant presented the testimony of Dr. Deryn Mary Strange, a cognitive
psychologist. Dr. Strange testified without objection as an expert in the “field of human
memory and its effects.” She explained that a memory was not permanent. Instead, it was
“a three-step process” of encoding, storage, and retrieval. She explained that memory was
a “reconstructive phenomenon.” A memory could be imperfect because it had to be
assembled from several neuro pathways, and it could be altered by storing additional
“information [that] came after the event.” In other words, “sometimes we can record things
that we didn’t actually experience, and that storage and retrieval phase of memory is an
ongoing loop. So every time we activate the memory again, it gets restored.”

        Dr. Strange said that children were more susceptible to suggestion than adults and
that this case had several factors that could produce distorted memories. She explained
that to perform a “good interview” of a “young child,” the interviewer first had to establish
a good rapport with the child. Then, the interviewer needed to verify that the child knew
the difference between truth and lies and to ensure the child knew “I don’t know” was a
valid answer to a question. The interviewer also needed to ensure the child knew she could
correct the interviewer if the interviewer got facts wrong or misunderstood something. Dr.
Strange said it was important for an interviewer to ask open-ended questions and to avoid
asking leading questions that could distort memories.



                                            -4-
       Dr. Strange agreed that the current protocols that ensure the accuracy of child
interviews were starting to be implemented in 1992. However, she believed that the
protocols were “not at all present” during the victim’s interview. Notably, the recording of
the interview reflected that the victim and Ms. Mathes Judd had spoken before the
recording began, and Dr. Strange found the failure to start the recording at the beginning
of the conversation to be inappropriate.

      During the interview, Ms. Mathes Judd interrupted the victim and asked leading and
composite questions that were not appropriate for the victim’s “developmental stage.” Dr.
Strange could not recall whether Ms. Mathes Judd asked any open-ended questions but
opined that “there were numerous suggestive influences present in this case.” After Dr.
Strange’s testimony, the defense rested.

       C.     VERDICT, SENTENCING, AND APPEAL


       The jury found the Defendant guilty of aggravated rape and aggravated sexual
battery. The trial court sentenced the Defendant as a Range I, standard offender to
concurrent sentences of twenty-five years for the aggravated rape conviction and twelve
years for the aggravated sexual battery conviction, for an effective sentence of twenty-five
years. The trial court denied the Defendant’s motion for a new trial on April 21, 2022, and
the Defendant filed a timely notice of appeal on April 27, 2022.

                                       ANALYSIS

        On appeal, the Defendant challenges the legal sufficiency of the evidence supporting
his convictions for rape of a child and aggravated sexual battery. He also asserts that the
trial court erred by (1) denying a motion to dismiss in light of missing evidence; (2)
allowing the victim’s forensic interview to be played at trial; (3) denying his motion for a
mistrial after testimony from the victim; (4) limiting the testimony of his expert witness;
(5) instructing the jury on its deliberation during its deadlock; and (6) imposing the
maximum sentence after misapplying enhancement factors and failing to apply mitigating
factors. We address each of these issues in turn.

       A.     LEGAL SUFFICIENCY OF THE EVIDENCE


       The Defendant first challenges the legal sufficiency of the evidence supporting his
convictions. “The standard for appellate review of a claim challenging the sufficiency of
the State’s evidence is ‘whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” State v. Miller, 

, 157 (Tenn. 2021)


                                            -5-
(quoting Jackson v. Virginia, 

 (1979)). This standard of review is “highly
deferential” in favor of the jury’s verdict. See State v. Lyons, 

, 791 (Tenn.
2023). Indeed, this standard requires us to resolve all conflicts in favor of the State’s theory
and to view the credited testimony in a light most favorable to the State. State v. McKinney,

, 772 (Tenn. 2023). To that end, “[w]e do not reweigh the evidence, because
questions regarding witness credibility, the weight to be given the evidence, and factual
issues raised by the evidence are resolved by the jury, as the trier of fact.” State v.
Shackleford, 

, 250 (Tenn. 2023) (citations omitted). “The standard of
review is the same whether the conviction is based upon direct or circumstantial evidence.”
State v. Dorantes, 

 (Tenn. 2011) (internal quotation marks and citation
omitted).

       On appeal, the Defendant argues that the proof failed to show that he either
penetrated the victim or had unlawful sexual contact with the victim. He asserts he was
convicted “without a scintilla of physical evidence or corroboration by witnesses.” To
support his argument, the Defendant emphasized that the protocols for ensuring the
accuracy of child forensic interviews were not present in this case. He also maintains the
victim’s testimony was “riddled with inconsistencies” and criticizes the investigation
conducted by the Knoxville Police Department.

        In response, the State argues that the proof presented at trial was “more than
sufficient to sustain his convictions.” It also argues that the victim’s testimony was
sufficient proof to establish the elements of the charged offenses and that corroboration of
her testimony was not required. We agree with the State.

              1.      Aggravated Rape

       As charged in this case, the offense of aggravated rape required the State to prove
that the Defendant unlawfully sexually penetrated the victim by placing his penis inside
her mouth when she was less than thirteen years old. 

(a)(4),
-501(7) (1991 Repl.). Specifically, the trial court charged the jury that the State elected:

       An act of fellatio at a time between January of 1992 and August of 1992,
       while [the Defendant] had [the victim], a child under the age of thirteen (13)
       years old, alone at the karate studio, wherein [the Defendant] covered [the
       victim’s] eyes, had her sit on a cinderblock, and placed his penis, that he
       called “fruit,” into her mouth, told her to not bite it, moaned, and then had
       her suck on it until what he called “the juice” came out which he told her to
       swallow.

      In the light most favorable to the State, the proof at trial established that when the
victim was ten years old, she began taking lessons at the Defendant’s karate studio.


                                             -6-
Sometime after January 1992, but before the victim participated in the Junior Olympics in
July 1992, the Defendant convinced the victim to take extra lessons. The Defendant told
her he had something to make her “stronger” and “hyper” and give her more energy. While
alone at the studio, he made her sit blindfolded on a cinderblock on the edge of a karate
mat. She heard him walk to his office with his pants around his feet to get the fruit. As an
adult, she realized the fruit was his penis. When he returned to her, he put his penis inside
her mouth and instructed her not to “bite” or “chew” but to “suck it.” He made noises
while he moved his penis in and out of her mouth and urged her to “take more in[.]”

       The Defendant told her to swallow the “juice” that came out of his penis. The victim
did not like the incidents with the fruit but did not realize anything bad was happening until
she spoke with her friend, who encouraged her to tell her parents. After telling her parents,
the abuse was reported to the authorities. After the Defendant was charged with his sexual
abuse of the victim, he fled from the jurisdiction and did not return for more than two
decades. These facts established the essential elements of aggravated rape.

       The Defendant complains that the victim’s testimony was the only evidence against
him. He also argues that the State’s investigation of the case was inadequate, that Dr.
Strange testified that the 1992 forensic interview could have compromised the victim’s
memories of the events, and that the victim reviewed the forensic interview before her
testimony.

        In essence, the Defendant’s argument is an invitation to reweigh the evidence or to
disturb the jury’s determinations on appeal. We respectfully decline to do so, particularly
in light of the standard of appellate review. When we review the legal sufficiency of the
convicting evidence, the law requires us to look at all the evidence and to accredit the
testimony of the State’s witnesses when doing so. Shackleford, 673 S.W.3d at 250. This
standard is intentionally deferential, as it seeks to “impinge[ ] upon ‘jury’ discretion only
to the extent necessary to guarantee the fundamental protection of due process of law.”
Jackson, 

.

        Thus, in looking at the victim’s testimony in this case, we take her testimony as
being true to give “full play to the responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” 

 In so doing, we observe that “it is well-settled law in Tennessee that
the testimony of a victim, by itself, is sufficient to support a conviction.” State v. Bonds,

 (Tenn. Crim. App. 2005) (citation and internal quotation marks
omitted). Indeed, the victim’s testimony requires no corroboration to sustain a conviction.
State v. Collier, 

 (Tenn. 2013) (“[I]t has long been the rule in our state
that the uncorroborated testimony of a minor victim may be sufficient to sustain a
conviction for forcible or coercive sex offenses such as simple rape.”). As such, it is not
part of our role, properly conceived, to “reevaluate the credibility of the witnesses or to
revisit inconsistencies in the testimony[,]” should there be any. State v. Murray, No.


                                               -7-
M2021-00688-CCA-R3-CD, 

, at *5 (Tenn. Crim. App. Nov. 30, 2022),
perm. app. denied (Tenn. Mar. 8, 2023). We conclude that the evidence was legally
sufficient to sustain the Defendant’s conviction of aggravated rape.

              2.     Aggravated Sexual Battery

        As charged in this case, the offense of aggravated sexual battery required the State
to prove that the Defendant had unlawful sexual contact with the victim when the victim
was less than thirteen years old. 

, -502(a) (1991 Repl.).
Sexual contact is defined as “[t]he intentional touching of the victim’s . . . intimate
parts . . . if that intentional touching can be reasonably construed as being for the purpose
of sexual arousal or gratification[.]” 

(6) (1991 Repl.).
Intimate parts are defined as “the primary genital area, groin, inner thigh, buttock or breast
of a human being[.]” 

 § 39-13-501(2). Specifically, the trial court charged the jury that
the State elected:

       at a time between January of 1992 and August of 1992, while [the Defendant]
       had [the victim], a child under the age of thirteen (13) years old, alone at his
       apartment, when [the Defendant] told [the victim] to lean over the couch with
       her pants removed and her eyes covered, while he rubbed what he called “the
       fruit” on her inner thighs while moaning until what he called “the juice” went
       on her legs and then he wiped it off.

       In the light most favorable to the State, the proof established that while the ten-year-
old victim was taking extra lessons, the Defendant occasionally picked her up from her
grandparents’ home after school. Although he was supposed to take her to the karate studio,
he took her to his apartment on approximately five occasions. On one occasion, he told
her he could strengthen her muscles by putting juice on the back of her legs. He blindfolded
her and told her to remove her pants, stand on the couch, bend over, and hold the back of
the couch. He rubbed his penis up and down the inside of her thighs and pushed it between
her legs. He began breathing heavily, and “[t]here would be juice at the end,” which the
Defendant wiped off her legs. These facts established the essential elements of aggravated
sexual battery.

       The Defendant again asserts that he cannot be convicted on the victim’s
uncorroborated testimony, especially considering the inadequacy of the State’s
investigation, the contamination of the victim’s 1992 forensic interview, and the victim’s
faulty memory. However, as we stated earlier, the standard of appellate review requires us
to look at all the evidence and to accredit the testimony of the State’s witnesses when doing
so. We conclude that the evidence was legally sufficient to sustain the Defendant’s
conviction of aggravated sexual battery.



                                             -8-
       B.     FERGUSON MOTION

       The Defendant next argues that the trial court erred in not dismissing the charges
against him due to the State’s failure to preserve the polygraph or the audio recording of
his 1993 interview with police in violation of State v. Ferguson, 

 (Tenn. 1999).
The State responds that the Defendant failed to show that the polygraph evidence ever
existed and that he had a transcript of the 1993 interview. It also argues that the trial was
not fundamentally unfair even without this evidence. We agree with the State.

              1.     Background

         As background for this issue, the Defendant sought dismissal of this case before
trial, arguing that the State lost crucial evidence. In particular, he argued that the State’s
failure to preserve a 1993 polygraph examination and an audio recording of an interview
he gave at the same time hampered his defense and violated the State’s duty to preserve
evidence. The Defendant asserted that although a transcript of the interview was preserved,
it was an inadequate substitute for the audio recording because he believed that the
transcript did not capture additional conversations that occurred during this interview.

       In response, the State asserted that it could find no evidence that a polygraph
examination was offered or administered to the Defendant, and it submitted an affidavit
from Investigator Humphrey attesting to this fact. It also stated that it searched for, but
could not locate, the audio recordings from the 1993 interview.

      Following a hearing, the trial court found that although the Defendant voluntarily
made a statement in 1993, the Defendant also voluntarily left the jurisdiction and stayed
away for twenty-three years. The court said:

       [T]here’s no way this Court is going to allow the defendant to benefit from a
       misfortune that he created for himself simply by leaving the jurisdiction and
       staying gone for so long. He is the reason there’s been such a delay. He is
       the reason evidence had [a] chance to get lost or destroyed. And he will not
       benefit from it.

Regarding the audio recording, the trial court found that the transcript gave “some idea of
what was on it,” but also concluded that the audio statement would be inadmissible hearsay
if offered by the Defendant. As such, the court denied the motion.




                                            -9-
               2.     Duty to Preserve Evidence

        On appeal, the Defendant challenges the trial court’s refusal to dismiss the charges
against him due to the State’s failure to preserve the polygraph or the audio recording of
his 1993 interview with police in violation of Ferguson. “Every criminal defendant is
guaranteed the right to a fair trial under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and the ‘Law of the Land’ Clause of Article
I, section 8 of the Tennessee Constitution.” Johnson v. State, 

 (Tenn.
2001). “To facilitate this right, a defendant has a constitutionally protected privilege to
request and obtain from the prosecution evidence that is either material to guilt or relevant
to punishment.” Ferguson, 

; see Brady v. Maryland, 

(1963).

       In Ferguson, our supreme court addressed “the factors [that] should guide the
determination of the consequences that flow from the State’s loss or destruction of evidence
which the accused contends would be exculpatory.” Ferguson, 

. First, a
reviewing court must determine whether the State had a duty to preserve the lost or
destroyed evidence. 

. “For this duty to arise, the [evidence] must be expected to
play a significant role in [the Defendant’s] defense.” State v. Merriman, 

 (Tenn. 2013). “Specifically, [the evidence] must have potential exculpatory value and
be of such a nature that [the Defendant] would be unable to obtain comparable evidence
by other reasonably available means.” Id.; State v. Crass, 

, 513 (Tenn.
Crim. App. 2022).

       “If the proof demonstrates the existence of a duty to preserve and further shows that
the State has failed in that duty, the analysis moves to a consideration of several factors
which should guide the decision regarding the consequences of the breach.” Ferguson, 

. These factors are:

       1.      The degree of negligence involved;

       2.      The significance of the destroyed evidence, considered in light of the
               probative value and reliability of secondary or substitute evidence that
               remains available; and

       3.      The sufficiency of the other evidence used at trial to support the
               conviction.

 (footnote omitted). If, after considering these factors, the trial court believes that a trial
without the missing evidence would lack fundamental fairness, it may consider several
remedies, such as dismissing the charges or providing an appropriate jury instruction. 

This Court reviews a trial court’s decision concerning the fundamental fairness of the trial


                                              - 10 -
under a de novo standard. Merriman, 

. However, we review the trial
court’s remedy under an abuse of discretion standard. Id.; Crass, 660 S.W.3d at 514.

                     a.      Polygraph

        With respect to the Defendant’s argument that the State should have preserved the
1993 polygraph examination, he has not shown that any such examination occurred in the
first instance. In the lower court, the only proof that the Defendant submitted regarding
the existence of the polygraph was his affidavit, which was attached as an exhibit to his
first motion to dismiss. In response, the State submitted the affidavit of Investigator
Humphrey, which asserted that the Defendant had never been offered a polygraph and that
one was not administered. Additionally, the Defendant acknowledged that the police were
unable to find any evidence that a polygraph had been administered, and he makes no
argument regarding this point in his appellate brief.

       The burden is on the Defendant to show that evidence alleged to have been lost or
destroyed by the State actually existed. See State v. Martin, No. W2017-01610-CCA-R3-
CD, 

, at *16 (Tenn. Crim. App. Sept. 28, 2018) (denying Ferguson relief
when “the Defendant failed to prove that a second a lineup ever existed”), no perm. app.
filed. Ferguson simply does not apply to evidence that never existed. “On the contrary,
this court has repeatedly refused to grant Ferguson relief when there was no proof that the
alleged evidence existed.” State v. Sparks, No. M2005-02436-CCA-R3-CD, 

, at *5 (Tenn. Crim. App. Aug. 4, 2006) (citing cases), no perm. app. filed; State
v. Morton, No. E2019-01755-CCA-R3-CD, 

, at *33 (Tenn. Crim. App.
June 27, 2022), perm. app. denied (Tenn. Nov. 16, 2022).

        In this case, the trial court accredited the State’s proof and found that the Defendant
failed to show that the polygraph existed. On our de novo review of the record as a whole,
we agree. See Merriman, 

 (recognizing that in conducting the de novo
review, “[d]eference should be given to the trial court’s findings of fact . . . unless the
evidence preponderates otherwise.”). Because he failed to show that the polygraph existed,
the Defendant is not entitled to relief.

                     b.      Audio Recording of Interview


      Unlike the polygraph, the parties agree that the Defendant gave an interview to law
enforcement in 1993 and that the interview was audio recorded. Because the recorded
statements of the accused are discoverable, the State had a duty to preserve this evidence.
See Tenn. R. Crim. P. 16(a)(1)(B); Merriman, 

 (“In Ferguson, we
acknowledged the State’s general duty to preserve all evidence subject to discovery and



                                            - 11 -
inspection under Rule 16 of the Tennessee Rules of Criminal Procedure[.]” (citing
Ferguson, 

)).

       Our supreme court also recognized, however, that “the State’s duty to preserve
evidence is limited to constitutionally material evidence described as ‘evidence that might
be expected to play a significant role in the suspect’s defense.’” Merriman, 

 (quoting Ferguson, 

). In Merriman, the supreme court held that to
meet this materiality standard, “the evidence must potentially possess exculpatory value
and be of such a nature that the defendant would be unable to obtain comparable evidence
by other reasonably available means.” 

 (citing Ferguson, 

).

       From the Defendant’s affidavit and his description of the interview, we doubt that
the missing audio recording possessed any potentially exculpatory value apart from his
own self-serving statements. Nevertheless, for the sake of analysis here, we presume that
the State had a duty to preserve the Defendant’s recorded statements.

       Turning then to the Ferguson considerations, the first factor is the degree of
negligence involved in the State’s failure to preserve the evidence. Ferguson, 

. In Ferguson, our supreme court recognized that when potentially exculpatory
evidence is lost or destroyed, negligence by the State is presumed. 

. In this
case, the trial court found that the audio recording was lost due to the passage of time,
which was itself due to the Defendant’s absconding from the jurisdiction, and that no
“deliberate action” existed on the State’s part. We agree. Nothing in the record supports a
finding that the State’s failure to preserve the audio recording was anything more than
simple negligence.

        The second factor considers the significance of the destroyed evidence and the
reliability of available secondary or substitute evidence. 

. The Defendant
contends that the lost audio recording was material because it consisted of statements he
voluntarily made after he waived his Miranda rights and that these statements highlighted
his cooperation and assertion of innocence. He also claims that the evidence had significant
probative value and that no reliable substitute evidence exists. We respectfully disagree.

        In his affidavit supporting his motion to dismiss, the Defendant stated that he met
with two investigators and that they discussed his “general information, [his] travels, and
[his] taekwondo school” before the investigators started recording the interview. The
recorded part of the interview was transcribed, and the Defendant possessed this
transcription at trial. The Defendant does not identify any portion of the recorded interview
that was not transcribed, nor does he assert that any “unintelligible” portions reflected in
the transcript omitted material or exculpatory information. On the contrary, he specifically
acknowledged “that the general material in the transcript of my interview is accurate as to
the topical content of our conversation that was recorded.”


                                           - 12 -
       We conclude that there was little significance to the missing audio, particularly in
light of its minimal probative value and availability of other evidence. The Defendant
argues that the principal importance of the audio recording was to show his cooperation
and assertion of innocence. However, other substitute evidence existed to establish those
objects fully, including the interview transcript itself, the Defendant’s written waiver of his
Miranda rights, and his cross-examination of Ms. Mathes Judd about the circumstances of
his police interview. See State v. McDaniel, No. E2019-01862-CCA-R3-CD, 

, at *13 (Tenn. Crim. App. Feb. 24, 2022), no perm. app. filed; State v. Sherrill, No.
M2017-00643-CCA-R3-CD, 

, at *19 (Tenn. Crim. App. Nov. 8, 2018),
no perm. app. filed. The second Ferguson factor does not weigh in favor of any remedy.

       Finally, the other evidence introduced at trial, including the victim’s testimony, was
more than sufficient to support the Defendant’s convictions because it established the
essential elements of the conviction offenses and identified the Defendant as the
perpetrator. As such, we conclude that the trial was not fundamentally unfair without the
audio recording. The Defendant is not entitled to relief.

       C.     PRIOR CONSISTENT STATEMENT


        The Defendant next challenges the trial court’s decision to admit the audio recording
of the victim’s 1992 forensic interview as a prior consistent statement. The Defendant
asserts that the interview does not qualify as a prior consistent statement and argues that its
admission deprived him of a fair trial.

        As background for this issue, we note that the Defendant highlighted inconsistencies
in the victim’s recollections during cross-examination, suggesting she could only recall
events after listening to the interview recording. The State argued that this line of
questioning by the defense, which implied faulty recollection, justified introducing the
interview as a prior consistent statement to demonstrate the victim’s consistent account of
events closer to the time they happened. The trial court agreed with the State and allowed
the interview to be admitted into evidence for those reasons.

       The Defendant’s principal issue with the court’s admission of the interview is that
the trial court erred in “determining that any exceptions for the admission of prior
consistent statements were present” in the case. Typically, we review questions involving
the admission of a prior consistent statement for an abuse of discretion. See State v. Tizard,

 (Tenn. Crim. App. 1994).

      “The Tennessee Rules of Evidence do not specifically cover rehabilitation of
impeached witnesses, but Tennessee law is well-established.” Neil P. Cohen et al.,
Tennessee Law of Evidence, § 8.05[5], n.170 (6th ed. 2011). A witness’s prior consistent


                                            - 13 -
statements “are generally not admissible to bolster the testimony of a witness.” State v.
Herron, 

 (Tenn. 2015). “However, when a defendant attacks a
witness’s credibility, the State may rehabilitate the witness by offering evidence of a prior
consistent statement.” State v. Rimmer, 

, 284 (Tenn. 2021) (appendix),
reh’g denied (May 21, 2021), cert. denied, 

 (2022). As such, “[a]dmission
of prior consistent statements is authorized in two circumstances: (1) where the statement
is offered to rebut the implication that the witness’s testimony was a recent fabrication; and
(2) when deliberate falsehood has been implied.” Id.; State v. Inlow, 

(Tenn. Crim. App. 2000).

       Notably, a prior consistent statement may be admitted “only when the witness’s
testimony has been assailed or seriously questioned to the extent that the witness’[s]
credibility needs shoring up.” Herron, 

 (citation and internal quotation
marks omitted). In other words, “if the witness is impeached by [a] suggestion of faulty
recollection, it would be relevant to prove that the witness made a consistent statement
soon after the event when the matter was fresher in the witness’ memory.” Tizard, 

.

        In the instant case, defense counsel’s cross-examination was entirely concerned with
whether the victim’s recollections were accurate, and he repeatedly questioned whether
they were faulty or fabricated. This type of attack on the victim’s credibility laid the
foundation for the State to use the victim’s prior consistent statements to rehabilitate her
testimony. See Herron, 

. The Defendant does not argue that the admission
of the interview exceeded what was necessary to rehabilitate the witness. State v. Sherrod,
No. W2015-02022-CCA-R3-CD, 

, at *11 (Tenn. Crim. App. May 9,
2017), perm. app. denied (Tenn. Sept. 22, 2017). Nor does he argue that the court’s
instructions to the jury on using these statements were deficient or improper. As such, we
conclude that the trial court acted within its discretion in admitting the audio recording of
the victim’s forensic interview as a prior consistent statement.

       D.     MOTION FOR MISTRIAL


        The Defendant next argues that the trial court erred in denying his motion for
mistrial after the victim twice infringed on his privilege against self-incrimination during
her trial testimony. As background for this issue, defense counsel repeatedly asked the
victim on cross-examination if anyone witnessed the molestation, especially in the busy
karate studio. The victim consistently responded that she and the Defendant were the only
people present when the molestation occurred. At that point, the following discussion
ensued:




                                            - 14 -
       [Trial Counsel:]     So let’s get this straight. If [the Defendant] picked you
                            up from school and gave a private lesson before
                            everything started, are you saying that the doors were
                            locked, or how can no one get in to see you in a private
                            office or room with [the Defendant] if that happened?

       [The victim:]        You’d have to ask [the Defendant] that because I know
                            I was there by myself.


Defense counsel did not object to the victim’s response as being somehow improper in any
way. Instead, he continued to press the victim about how no one else could have witnessed
the molestation. Finally, the following discussion occurred:

       [Trial Counsel:]     -- again, over 11 months and 20 times, just name one person
                            that can tell us that they saw it happen. They saw you leave or
                            exit –

       [The victim:]        [The Defendant].

       After this response from the victim, defense counsel moved for a mistrial, arguing
that the victim had twice impermissibly commented upon the Defendant’s Fifth
Amendment right not to incriminate himself. The trial court observed, “You can’t have it
both ways. You can’t ask these broad, open-ended questions and then complain when she
answers them.” Defense counsel did not request another remedy, such as a curative
instruction.

        On appeal, the Defendant argues that the trial court should have granted a mistrial
because the victim’s statements were impermissible commentary on the Defendant’s Fifth
Amendment privilege against self-incrimination. A mistrial should be declared only when
a manifest necessity exists for such an action. State v. Robinson, 

(Tenn. 2004). “A manifest necessity exists when something has occurred that would
prevent an impartial verdict, thereby resulting in a miscarriage of justice if a mistrial were
not declared, and there is ‘no feasible alternative to halting the proceedings.’” State v.
Pratt, No. M2017-01317-CCA-R3-CD, 

, at *4 (Tenn. Crim. App. Aug.
20, 2018) (quoting State v. Land, 

 (Tenn. Crim. App. 2000)), no perm.
app. filed. Stated differently, if there is a feasible and just remedy other than halting the
proceedings, no manifest necessity exists for a mistrial. See State v. Smith, 

 (Tenn. 1994).




                                            - 15 -
        While “[t]he party seeking a mistrial has the burden of establishing its necessity,”
the “decision whether to grant a mistrial lies within the discretion of the trial court.” State
v. Jones, 

 (Tenn. 2019). An abuse of discretion “occurs when the trial
court ‘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. Johnson, 

 (Tenn. 2013) (quoting State
v. Phelps, 

 (Tenn. 2010)).

       As we have recognized, “Tennessee courts do not apply ‘any exacting standard’ for
determining when a mistrial is necessary after a witness has injected improper
testimony[.]” State v. Horn, No. E2015-00715-CCA-R3-CD, 

, at *7
(Tenn. Crim. App. Feb. 12, 2016), no perm. app. filed. However, a mistrial was not
warranted in this case because the witness did not testify improperly.

       Context is important. In response to repeated questioning by defense counsel, the
victim testified that she and the Defendant were the only people present when the
molestation occurred. When pressed further to identify people who could corroborate her
testimony, the victim answered, somewhat obviously, that the Defendant could do so. This
answer, which was given in direct response to the Defendant’s repeated questions, merely
restated the victim’s earlier testimony: that the Defendant molested her only when they
were alone.

       In support of his argument on appeal, the Defendant cites State v. Jackson, 

 (Tenn. 2014) as justifying a mistrial. This case, however, offers no relief
because it concerned whether the State impermissibly commented on a defendant’s right
to remain silent during the closing argument. Jackson, 

. In contrast, not
only was the victim’s testimony a restatement that the Defendant molested her only when
they were alone—and thus not a comment on the Defendant’s right to remain silent—the
victim gave this testimony in direct response to the questions asked by defense counsel
during cross-examination. See State v. Welcome, 

 (Tenn. Crim. App.
2007). Accordingly, we conclude that the trial court acted within its discretion in denying
the Defendant’s motion for a mistrial.

       E.     DEFENSE EXPERT’S TESTIMONY


              1.     Background

        On appeal, the Defendant contends that the trial court erred in limiting the testimony
of Dr. Deryn Strange, an expert in memory and forensic interrogations. As background for
this issue, the State filed a pretrial motion to exclude or limit Dr. Strange’s testimony. In


                                            - 16 -
particular, the State questioned the relevance and reliability of the testimony and argued
that the testimony could infringe upon the jury’s role. Tenn. R. Evid. 702.

       The court held a pretrial hearing on the State’s motion on August 24, 2020. In this
hearing, Dr. Strange testified that she earned a Ph.D. in psychology and had been employed
with the John Jay College of Criminal Justice since 2008. She also said that she had more
than fifty publications “in terms of peer-reviewed . . . research” and that she had testified
over fifty times “under the banner of memory errors.”

       Consistent with her later trial testimony, Dr. Strange testified about memory
formation and the risks of false memories, particularly in children. She critiqued the 1992
forensic interview of the victim because the interviewer did not build rapport with the
victim, used leading questions, and failed to record the interview.

       Defense counsel asked Dr. Strange, “So based on your review and your knowledge
and experience of this forensic interview, do you have an opinion as to whether this would
have created a distorted memory?” She responded, “I can’t say for sure, but I would be
highly surprised if it didn’t.” Although Dr. Strange said that she could not offer an opinion
to a reasonable degree of “psychological certainty”—she stated that “[p]sychological
certainty isn’t really a thing”— she did confirm that her opinions were being offered within
a reasonable degree of scientific certainty.

       In a written order, the trial court found that Dr. Strange was properly qualified as an
expert in memory and forensic interrogations, and it allowed her to testify about her
qualifications, how human memory works, and her perceived deficiencies in the 1992
forensic interview. However, the trial court found that because Dr. Strange was “unable to
opine within a reasonable degree of certainty within her field of expertise, she may not
offer an opinion as to whether or not a ‘false memory’ exists in this case.”

       At trial, Dr. Strange offered her expert experience and opinions on how human
memory works and how to properly conduct a forensic interview to avoid distorting a
victim’s memory. She also opined “that there were numerous suggestive influences
present” with the forensic interview in this case. She further agreed that the victim’s
memory could have been influenced by others with whom she spoke, including her parents.
Finally, she confirmed that “we can never say how much suggestion there was, but we can
see here significant sources of suggestion” in the interview.

       In addition, Dr. Strange’s expert report was admitted as an exhibit. In her report,
Dr. Strange opined that “some of the factors we know can produce distorted memories
were present in this case.” She also explained, however, that it was “impossible to judge
the degree of suggestion” in this particular case:


                                            - 17 -
       It is important to note that the entire interview with the complainant is not
       audio-recorded[,] and since there is no video[,] we miss a lot of detail. Also,
       by the time the child is interviewed by police[,] she has already participated
       in other interviews with, at the very least, her parents. Together that means
       it is impossible to judge the degree of suggestion. Nonetheless, what we are
       able to hear/read is a highly suggestive interview.

        On appeal, the Defendant contends that the trial court excluded Dr. Strange’s
testimony because it could not be offered “within a reasonable degree of certainty within
her field of expertise.” Taking issue with this conclusion, he argues that the decision was
a “restriction on the ultimate issue [that] substantially limited Dr. Strange’s testimony.”
He further asserts that her complete opinion would have materially assisted the jury in
assessing the credibility of the victim’s initial statement and trial testimony. We
respectfully disagree.

              2.     Admissibility of Dr. Strange’s Testimony


       “The trial court possesses the sound discretion to determine the admissibility of
evidence, and we review a trial court’s denial of a motion in limine to restrict the admission
of evidence under an abuse of discretion standard.” State v. Cannon, 

, 437
(Tenn. Crim. App. 2021). A trial court’s decision regarding the “‘admissibility,
qualifications, relevancy and competency of expert testimony’” is subject to review under
an abuse of discretion standard. State v. Watkins, 

, 260 (Tenn. Crim. App.
2021) (quoting McDaniel v. CSX Transp., Inc., 

 (Tenn. 1997)).

       Our supreme court has emphasized that “[d]iscretionary decisions must take the
applicable law and relevant facts into account.” Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 

 (Tenn. 2008). To that end, “an abuse of discretion
occurs when a court strays beyond the applicable legal standards or when it fails to properly
consider the factors customarily used to guide the particular discretionary decision.” State
v. McCaleb, 

, 186 (Tenn. 2019) (citation and internal quotation marks
omitted). “A court abuses its discretion when it causes an injustice to the party challenging
the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the
evidence.” Moore v. Lee, 

, 63 (Tenn. 2022) (citation and internal quotation
marks omitted).

       Tennessee Rule of Evidence 702 provides that “[i]f scientific, technical, or other
specialized knowledge will substantially assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise.”

                                            - 18 -
Tennessee Rule of Evidence 703 curtails Rule 702 by providing that “[t]he court shall
disallow testimony in the form of an opinion or inference if the underlying facts or data
indicate lack of trustworthiness.”

       It is true that “there is no requirement that specific words be recited in order for
expert testimony to be admissible,” and expert testimony is not inadmissible simply
because the expert does not expressly offer an opinion within a reasonable degree of
scientific certainty. State v. Langston, No. W2015-02359-CCA-R3-CD, 

, at *11 (Tenn. Crim. App. May 12, 2017) (citations omitted), perm. app. denied
(Tenn. Sept. 22, 2017). Instead, a court must question “whether the witness’s knowledge
will substantially assist the jury in understanding the evidence or in determining a fact in
issue.” 

       But it is also true that “[c]ausation in fact . . . is a matter of probability, not
possibility.” State v. Young, No. 01C01-9605-CC-00208, 

, at *22 (Tenn.
Crim. App. May 22, 1998) (citing Kilpatrick v. Bryant, 

 (Tenn. 1993)).
This court has cautioned that “[e]xpert testimony that a certain thing is possible is no
evidence at all, and speculation by an expert is no more valid than the jury’s own
speculation as to what is or what is not possible.” 

 (citing Lindsey v. Miami Development
Corp., 

 (Tenn. 1985)).

        The Defendant argues that Dr. Strange should have been permitted to testify that a
“false memory” exists in this case or that the forensic interview distorted the victim’s
testimony. However, while Dr. Strange testified generally about how memories could be
distorted, she admitted that she could not offer an opinion specifically about whether the
victim’s memory was false or distorted.

        For example, during the pretrial hearing, Dr. Strange was asked directly if the
interview would have caused the victim’s memory to be distorted. Dr. Strange responded,
“I can’t say for sure, but I would be highly surprised if it didn’t.” Later at trial, she
identified why she could not offer an opinion on this point: she lacked the factual
foundation from which to draw an opinion. Dr. Strange testified that “we can never say
how much suggestion there was” from the interview itself because the interview was not
fully recorded and because the police had already interviewed the victim. This limitation
was also expressed in her expert report, which stated that “it is impossible to judge the
degree of suggestion” in the interview.

       The trial court certainly did not err in excluding an opinion that the Defendant’s
expert believed was “impossible” to offer. Nevertheless, the Defendant argues that the trial
court improperly excluded this opinion simply because it could not be offered “within a
reasonable degree of certainty within her field of expertise.” We respectfully disagree.


                                           - 19 -
       At trial, the court clarified that it excluded this testimony because an opinion about
what “could have been” is irrelevant. It also noted that the expert did not find “a distorted
memory in this case based on the evidence.” These were relevant considerations in
assessing the reliability of Dr. Strange’s opinion about whether the victim’s actual memory
was false or distorted. Indeed, our supreme court has required trial courts to assess “the
connection between an expert’s conclusions and the underlying data upon which those
conclusions are based” as part of its gatekeeping functions. State v. Scott, 

,
402–03 (Tenn. 2009). In this light, the trial court’s decision to exclude Dr. Strange’s
opinion was based upon her inability to offer a reliable opinion on that point, not because
she failed to incant the “magic words” of scientific certainty.

       However, even if the trial court erred in requiring the expert to opine with scientific
certainty—and it did not impose such a requirement—the error was clearly harmless. See
Rimmer, 623 S.W.3d at 287 (holding that an error in excluding expert testimony is subject
to harmless error analysis). At trial, Dr. Strange testified about the factors that could
contribute to distorted memory, both generally and in the context of a forensic examination.
She also opined that there were “significant sources of suggestion” in the victim’s interview
and that “there were numerous suggestive influences present in this case.” Through this
testimony, the Defendant placed before the jury all that his expert could reliably offer. As
such, the Defendant has not shown that the trial court’s decision to exclude unreliable
testimony “more probably than not affected the judgment” or “result[ed] in prejudice to the
judicial process.” Tenn. R. App. P. 36(b); State v. Rodriguez, 

 (Tenn.
2008). The Defendant is not entitled to relief on this issue.

       F.     JURY INSTRUCTIONS


        The Defendant next argues that the trial court erred by improperly instructing the
jury after being informed the jury was deadlocked. As background for this issue, the trial
court was notified during deliberations that the jury was “at an impasse.” The court called
the jury into the courtroom and confirmed that the jury was deadlocked. At that point, the
trial court stated:

       You’re going to get mad at me, but I’m not going to let you quit just yet. I
       want you to [go] back, and I want you to work a little bit further. And I’m
       going to ask that maybe you try something different, and that may be
       something like suggesting that one person who has been advocating one side
       is then called upon to advocate the opposite side. Same thing with the other
       side.

       The reason I’m suggesting doing that is it makes you look at it from a
       different perspective, especially if you’re advocating it. And sometimes if

                                            - 20 -
       you can get everything out there, it’s going to cause each and every one of
       you to look at this maybe through a different prism.

       I don’t know if you’re going to reach a unanimous agreement, but I want you
       to at least try. And the reason that I’m making you do this, is this case took
       about three days to try. You’ve had it for a little over two hours. I want you
       to work just a little bit more at this and let’s see where we are.

       If you just simply cannot come to a unanimous agreement, that happens
       sometimes. I understand that, but I want to work a little bit further on it.
       Let’s see where we are. If we need to address this again in an hour or so
       from now, we’ll address it again, okay? All right. Go back and work a little
       bit more.

The Defendant did not raise any objection to the trial court’s supplemental instruction until
moments before the jury read its verdict in open court.

       On appeal, the Defendant asserts that the trial court gave an unlawful “dynamite
charge” to encourage “deadlocked dissenting jurors to consider alternate viewpoints to
reach a unanimous verdict.” See Allen v. United States, 

 (1896); Simmons v.
State, 

 (Tenn. 1955). The State responds that the trial court’s instruction
was lawful. We agree with the State.

        “Whether jury instructions are sufficient is a question of law appellate courts review
de novo with no presumption of correctness.” State v. Clark, 

 (Tenn.
2014). “An instruction should be considered prejudicially erroneous only if the jury
charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as
to the applicable law.” State v. Faulkner, 

 (Tenn. 2005).

        Our supreme court has held that if a jury has reported it is deadlocked and “the trial
judge feels that further deliberations might be productive, [the judge] may give
supplemental instructions[.]” Kersey v. State, 

 (Tenn. 1975).
However, these supplemental instructions cannot effectively coerce jurors “into
surrendering views conscientiously entertained,” such as by imploring the dissenting jurors
to “listen to the views of the majority with the disposition of being convinced.” 

.
The supplemental instruction also may not require a dissenting juror to “consider whether
his [or her] doubt was a reasonable one which made no impression on the minds of so many
other [jurors], equally honest, and equally intelligent with [themselves].” 

 Instead, the
supreme court held that the following instruction would be proper to give to a deadlocked
jury:

                                            - 21 -
       The verdict must represent the considered judgment of each juror. In order
       to return a verdict, it is necessary that each juror agree thereto. Your verdict
       must be unanimous.

       It is your duty, as jurors, to consult with one another and to deliberate with a
       view to reaching an agreement, if you can do so without violence to
       individual judgment. Each of you must decide the case for yourself, but do
       so only after an impartial consideration of the evidence with your fellow
       jurors. In the course of your deliberations, do not hesitate to reexamine your
       own views and change your opinion if convinced it is erroneous. But do not
       surrender your honest conviction as to the weight or effect of evidence solely
       because of the opinion of your fellow jurors, or for the mere purpose of
       returning a verdict.

.

        In this case, the better practice would have been to give the Kersey instruction rather
than an alternative. Kersey, 

 (“Strict adherence is expected[,] and
variations will not be permissible.”). That said, nothing about the trial court’s instruction
was fashioned to coerce jurors with dissenting views. The instruction urged jurors to
reconsider their views, true, but the instruction applied to all jurors. It was not directed to
jurors with dissenting views, and it did not urge dissenting jurors to “reevaluate or to cede”
their views to those of the majority. See State v. Baxter, 

 (Tenn. Crim.
App. 1996) (“[T]he court, in effect, ordered the jury to continue deliberating. It did not
direct any of its comments to jurors in the minority, nor did it urge such jurors to reevaluate
or to cede his or her views to those of the majority.”). In this way, the instruction
encouraged all jurors to do only as Kersey instructs: “In the course of your deliberations,
do not hesitate to reexamine your own views and change your opinion if convinced it is
erroneous.” Kersey, 

.

        Moreover, the trial court did not act to compel a verdict. The trial court recognized
the possibility that the jury may not reach a unanimous verdict, and it removed the pressure
to do so by expressly acknowledging that juries sometimes “simply cannot come to a
unanimous agreement.” The court also offered to revisit the issue “[if] we need to,” making
clear that it was open to additional discussion on the point.

       “[T]he primary concern expressed by courts in rejecting the dynamite charge is that
it may impair the right to a unanimous verdict by coercing jurors holding the minority view
in deliberations to surrender their beliefs and follow the majority.” In re Est. of Link, 

 (Tenn. Ct. App. 2017). There was no such risk here. Accordingly, we
conclude that the Defendant is not entitled to relief.

                                            - 22 -
       G.     SENTENCING

       On appeal, the Defendant contends that the trial court misapplied enhancement
factors and disregarded mitigating factors in arriving at his effective twenty-five-year
sentence. He asserts that the correct sentences would have been at the bottom of the range.
The State concedes that the trial court incorrectly sentenced the Defendant but maintains it
did so by failing to apply the sentencing law in effect when the offenses were committed
and by violating Blakely v. Washington, 

 (2004). We agree with the State.

        Although the Defendant was tried in 2021, the events giving rise to this case
occurred in 1992. The Defendant did not file a waiver seeking to be sentenced under the
2005 amendments to the 1989 Sentencing Reform Act. As such, all parties agree that the
Defendant should be sentenced pursuant to the 1989 Sentencing Act in effect at the time
of his offenses. See State v. Smith, 

 (Tenn. 1994); State v. Vantilburg,
No. W2006-02475-CCA-R3-CD, 

, at *9 (Tenn. Crim. App. Feb. 12,
2008) (“Had the defendant desired sentencing under the 2005 amendment to the Sentencing
Act, he could have executed a waiver of his ex post facto protections. No waiver appears
in the record; thus, the sentence in this case was governed by the pre-2005 amendments.”
(citations omitted)), perm. app. denied (Tenn. Aug. 25, 2008).

       Both parties request that this case be remanded for a new sentencing hearing
pursuant to the pre-2005 Sentencing Act. Under the pre-2005 Sentencing Act, “[t]he
presumptive sentence shall be the minimum sentence in the range if there are no
enhancement or mitigating factors.” 

(d) (1990 Repl.). If
there are enhancement factors but no mitigating factors, “the court may set the sentence
above the minimum in that range but still within the range.” 

 § 40-35-401(d). If there
are “enhancement and mitigating factors, the court must start at the minimum sentence in
the range, enhance the sentence within the range as appropriate for the enhancement
factors, and then reduce the sentence within the range as appropriate for the mitigating
factors.” Id. § 40-35-401(e).

        Under the law in effect when the offenses were committed, the presumptive
sentences for a Class A felony and for a Class B felony were the minimum sentences in the
respective ranges. See 

(c) (1990 Repl.); State v. McClellan,
No. E2010-02338-CCA-R3-CD, 

, at *5 (Tenn. Crim. App. June 21,
2012) (“Prior to an amendment in 1995, Tennessee Code Annotated section 40-35-210
provided the presumptive sentence for a Class A felony as the minimum within the range
or fifteen years.”), perm. app. denied (Tenn. Nov. 27, 2012). For a Range I offender
convicted of a Class A felony, the range was not less than fifteen years nor more than
twenty-five years. 

 § 40-35-112(a)(1). For a Range I offender convicted of a Class B
felony, the range was not less than eight years nor more than twelve years. Id. § 40-35-


                                           - 23 -
112(a)(2). Therefore, in the absence of any enhancement factors, the presumptive
sentences—in fact, the only available sentences—were fifteen years for the Defendant’s
aggravated rape conviction and eight years for his aggravated sexual battery conviction.

         In 2007, our supreme court reexamined these sentencing statutes in light of
Apprendi v. New Jersey, 

 (2000) and Blakely v. Washington, 

(2004). In State v. Gomez, 

 (Tenn. 2007), our supreme court held that
a trial judge could not enhance a sentence above the presumptive minimum sentence—or
could not find and apply an enhancement factor—“based on judicially determined facts
other than the fact of a prior conviction[.]” Gomez, 

. Although our
sentencing statutes have since been amended to remove presumptive sentences and render
enhancement factors merely advisory, State v. Bise, 

 (Tenn. 2012), all
parties agree that the Defendant’s sentence is governed by the law as it existed before these
amendments.

       In practical terms for this case, a trial court applying the law in effect at the time of
the Defendant’s offenses may not increase the Defendant’s sentences above the
presumptive minimums unless (1) at least one enhancement factor exists; and (2) the
enhancement factor (i) consists solely of the Defendant’s prior criminal convictions; (ii) is
based on facts reflected in the jury’s verdict; or (iii) is admitted by the Defendant. See
State v. Allen, 

 (Tenn. 2008); State v. Dorantes, 

(Tenn. 2011) (“Prior criminal history, however, is an enhancement factor that does not
offend the Sixth Amendment absent submission of the issue to a jury.”). Of course, a
decision to impose consecutive sentences is not affected by Apprendi or Blakely. See Allen,

; State v. Pottebaum, No. M2007-02108-CCA-R3-CD, 

, at *18 (Tenn. Crim. App. Dec. 30, 2008), perm. app. denied (Tenn. June 1,
2009). 1

        In this case, the trial court imposed a sentence for each conviction above the
respective presumptive minimum sentences. It did so by finding facts to support various
enhancement factors, including factors focused on the Defendant’s prior criminal behavior,
his desire for pleasure or excitement, and his breach of a private trust. See 

(1), (7), (15) (1990 Repl.). However, the Defendant did not admit any
facts that would support applying any enhancement factor. And, although the trial court
found that the Defendant had committed other criminal acts against the victim, it
acknowledged that the Defendant otherwise had no history of criminal convictions.



       1
                 Because the trial court imposed the maximum sentences for each of the Defendant’s
convictions, it declined to align the sentences consecutively in that circumstance because it was “very
comfortable” with the length of the appropriate sentence.

                                                - 24 -
       At oral argument, the State asserted that enhancement factors may exist that are
based on facts reflected in the jury’s verdict, and for this reason, it specifically requested a
remand for a new sentencing hearing so that it may present these arguments. In response,
the Defendant also requested a remand for resentencing as well. We agree that these
arguments should be developed in the record and passed upon in the trial court.
Accordingly, we reverse the sentences imposed and, at the parties’ joint request, remand
for resentencing on each conviction in compliance with Blakely. See State v. Oliver, No.
M2008-01824-CCA-R3-CD, 

, at *1 (Tenn. Crim. App. Feb. 26, 2010)
(remanding for resentencing in light of Blakely), no perm. app. filed.

                                      CONCLUSION

      In summary, we affirm the Defendant’s convictions for aggravated rape and
aggravated sexual battery. However, we respectfully vacate the Defendant’s sentences and
remand this case to the trial court for resentencing in compliance with Blakely.



                                            ____________________________________
                                                   TOM GREENHOLTZ, JUDGE




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