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State of Tennessee v. Donald West Allen, Jr.
Citation: Not availableDocket: E2012-01773-CCA-R3-CD
Court: Court of Criminal Appeals of Tennessee; September 18, 2013; Tennessee; State Appellate Court
Original Court Document: View Document
Donald West Allen, Jr. was convicted of three counts of aggravated sexual battery after initially being charged with three counts of child rape. The trial court sentenced him to nine years for each count, with the sentences for the first two counts running consecutively and the third count concurrently, resulting in an effective eighteen-year sentence to be served at 100%. Allen raised four issues on appeal: the trial court's allowance of uncharged conduct references by the State, the sufficiency of evidence for his convictions, the trial court's questioning of a juror after the trial, and the excessiveness of his sentence. After reviewing the case, the Court of Criminal Appeals of Tennessee found no reversible error and affirmed the trial court's judgments. The factual background indicates that the defendant, who is the victim's father, had a complicated relationship with the victim's mother and had intermittent contact with the victim from her early childhood until after his deployment to Iraq. In April 2010, while on leave, the Defendant received a visit from the victim, after which the victim's attitude towards him soured, leading her to avoid communication. Despite this, the Defendant continued to send daily text messages expressing confusion about her silence and requesting photos and conversation. The victim's mother monitored these communications. An exhibit included ten messages, notably an email from May 23, 2010, in which the Defendant professed his love and expressed a desire to understand why the victim was upset. He mentioned the difficulty of his deployment in Iraq and conveyed a strong wish to reconcile, urging her to communicate any issues. A subsequent email dated May 28, 2010, raised concern for the victim's mother due to its emotional content. The Defendant's message conveyed desperation and longing, describing his feelings of loss and confusion while away. He expressed a strong need for the victim's presence, lamented their separation, and pleaded for her to maintain contact, emphasizing the emotional turmoil he felt without her. He acknowledged past mistakes and implored her not to abandon him, revealing a deep sense of attachment and distress over their communication breakdown. The document reveals a complex narrative involving personal reflections, family dynamics, and allegations of abuse. A mother expresses deep regret over past actions and a longing for connection with her daughter, emphasizing the emotional impact of distance and communication breakdown. The mother critiques a letter received from the defendant, likening it to a romantic correspondence rather than appropriate parental communication. On June 1, 2010, the mother, after receiving concerning information from her sister about the victim, contacted law enforcement. She acknowledged previous objections to the defendant's behavior regarding the children's names and shared a text from the defendant expressing his intent to change the children’s last names, framed as fulfilling the victim's wishes. During cross-examination, the mother noted similarities between the defendant's e-mail and song lyrics, which she categorized as love songs, and she conveyed that children naturally seek play over waiting for communication. Beverly Cotton, a pediatric nurse practitioner, testified about a forensic examination of the victim conducted on March 8, 2011, which yielded normal results, consistent with research indicating that most children who disclose abuse do not show physical signs. Cotton admitted uncertainty regarding the truth of the abuse claims, acknowledging that the mother had initially informed her of the allegations in April 2010. Aunt testified about an incident on June 1, 2010, when the victim displayed unusual behavior, leading to a disclosure of abuse. The victim, now ten, recounted her experiences visiting the defendant, her father, at eight years old, where he allegedly checked her for ticks inappropriately. She described him touching her inappropriately while they were in his home and vehicle, often with her clothing removed or adjusted. The victim indicated that these checks occurred in the presence of her sister, adding to the troubling context of the allegations. The victim provided testimony detailing inappropriate sexual encounters with the Defendant, asserting that he touched her inappropriately on multiple occasions while both were naked. She described feeling pain and attempting to push him away during these incidents. The Defendant allegedly warned her not to disclose these acts, threatening to hurt or kill her if she did. Despite these threats, the victim revealed that she eventually disclosed the abuse to her aunt and others, although she felt embarrassed about discussing the details. The victim communicated with the Defendant during his deployment to Iraq but became increasingly reluctant to send him pictures as he requested. She clarified her lack of desire to change her last name to his or live with him, contrary to suggestions made by others. Additional testimony was provided by her younger sister, who recounted witnessing the Defendant inappropriately touching the victim while driving, and she was also threatened by the Defendant to remain silent about what she saw. Investigator John Haynes, involved in the case, testified about the disturbing nature of the victim's emails and mentioned that the victim had not received medical attention until nine months after the allegations were reported. The State concluded its case after Inv. Haynes' testimony. The defense presented forensic interviewer Kelly Mays, who reported that the victim did not claim sexual penetration by the Defendant, only recalling seeing his penis during play. Mays noted children often withhold information in initial interviews. Wes Clark, a counselor, testified the victim recounted experiencing sexual acts about five times, including ejaculation. Forensic interviewer Jane Montgomery, who spoke with the victim later, found no description of an erect penis or ejaculation; the victim indicated that penetration caused pain but did not understand what a penis felt like. Dr. Ronald Wright, an expert in pathology, stated that if full penetration had occurred, the victim would likely have sustained hymenal tearing, which was not evident during her examination; her hymen appeared uninjured. He acknowledged that injuries could occur without hymenal rupture and might have healed by the examination date. The Defendant denied the allegations, describing his living situation with his mother and detailing visitation dates with the victim, including a visit to Camp Shelby before his Iraq deployment. Communication with the victim continued until shortly after his return to Iraq, at which point the victim stopped contacting him, despite ongoing communication with her mother, which he described as unfriendly. Arguments arose regarding the victim's potential adoption of the Defendant's last name and the Defendant's plans to seek custody after returning from Iraq, which the victim reportedly desired. The Mother opposed this, threatening the Defendant with severed contact. Subsequently, the Mother's mother-in-law intervened, demanding the Defendant cease communication, leading to the Defendant's distress due to lack of contact with the victim. Seeking advice from his chaplain, the Defendant attempted to reconnect through music, specifically songs by David Gray, which the victim enjoyed. He emphasized that his intention was not romantic but simply to communicate with his daughter, denying any inappropriate actions towards her. The Defendant acknowledged past child-support arrears but claimed they were resolved. He admitted to sending shirtless photos to the victim but maintained he did not engage in any sexual misconduct. His ex-wife testified about the romantic significance of the song "Sail Away," which they shared. The trial court instructed the jury on the specific offenses elected by the State, which included multiple counts of sexual acts in the Defendant's residence. The jury convicted the Defendant of aggravated sexual battery on all counts. Following sentencing, the Defendant received a total of eighteen years in prison, with a motion for a new trial subsequently denied by the court. The Defendant raises four issues in this direct appeal: 1) the trial court allowed the State to reference uncharged conduct in its opening statement and during trial without a jury-out hearing; 2) the evidence is insufficient to support his convictions; 3) the trial court improperly questioned a juror after the close of proof; and 4) his sentence is excessive. Regarding the uncharged conduct, the Defendant contends that the State should not have mentioned anticipated testimony from Sister about the Defendant's inappropriate touching of the victim during its opening statement. Prior to trial, the Defendant filed a motion to exclude evidence of sexual misconduct with any child other than the victim or occurring outside of Cumberland County, Tennessee. The State requested that the court delay its ruling on this motion until the trial commenced. During the opening statement, the prosecutor described the victim's testimony, detailing instances of inappropriate touching by the Defendant, including actions occurring while driving and in the presence of Sister. Following the opening, the defense moved for a mistrial, arguing that the State's references exceeded the scope of what they were prepared to defend against, violating their previous motion to exclude evidence of uncharged misconduct. The defense asserted that the State's actions prejudiced the jury and that they should be granted a mistrial. The State argued that evidence mentioned in its opening statement was admissible under State v. Rickman, which allows the introduction of evidence related to other sex crimes within the time frame specified in the indictment, even if specific dates are not charged. The trial court denied the Defendant's motion for a mistrial, stating that the bill of particulars did not restrict the evidence to only those incidents explicitly charged. Sister's testimony, which was confined to the alleged time frame of July 1, 2009, to December 1, 2009, was deemed permissible. The Defendant contended on appeal that Rickman was not applicable because specific acts were charged, and uncharged acts were introduced without a jury-out hearing, violating Tennessee Rule of Evidence 404(b). However, the court found that the Defendant waived the objection regarding the lack of a jury-out hearing since he did not request one. Even if the court had erred by not holding a jury-out hearing or by admitting Sister’s testimony, the error was considered harmless. Sister’s testimony primarily corroborated the victim's account of the Defendant's behavior, and the court concluded that it did not likely affect the outcome of the trial or prejudice the judicial process. Therefore, the Defendant was not entitled to relief on these bases. The Defendant argues that the evidence is insufficient to support his three convictions for aggravated sexual battery. The appellate review standard requires viewing the evidence favorably for the prosecution, determining if any rational trier of fact could find the crime's essential elements proven beyond a reasonable doubt. Once a jury finds a defendant guilty, the presumption of innocence is replaced with a presumption of guilt, placing the burden on the defendant to demonstrate insufficient evidence for the jury's verdict. The appellate court does not re-evaluate evidence but respects the jury’s credibility assessments and resolves conflicts in favor of the State. The Supreme Court's standard treats direct and circumstantial evidence equivalently; hence, the prosecution does not need to exclude all other reasonable hypotheses aside from the defendant's guilt, as long as guilt is proven beyond a reasonable doubt. Aggravated sexual battery involves unlawful sexual contact with a victim under thirteen, defined as intentional touching for sexual arousal or gratification. The State presented three specific incidents of unlawful contact: vaginal and anal intercourse in the Defendant's bedroom and vaginal intercourse in the victim's bedroom. The victim testified to being touched inappropriately by the Defendant in various instances, and the jury found her testimony credible over the Defendant's. The jury's accreditation of the victim's testimony was sufficient for conviction, and the Defendant is not entitled to relief based on this argument. The State requested the trial court to excuse a juror who was a first cousin of one of the defense attorneys, citing that it had just learned of this relationship. The defense attorney acknowledged the familial connection but argued there was no legal reason to disqualify the juror. During an in-chambers questioning, the juror confirmed her relationship to defense counsel but asserted it would not affect her impartiality, stating she would base her decision solely on the evidence presented. The trial court allowed the juror to remain on the panel. The Defendant contended that this interaction could have biased the juror towards the State, thereby violating his constitutional right to an impartial jury. However, the court maintained that the trial court has broad discretion in jury selection matters, which will not be disturbed unless there is an abuse of discretion. The Defendant could not demonstrate such abuse, and defense counsel had expressed satisfaction with the procedure, making no objections to the juror's continued participation. The reference to Tennessee Rule of Criminal Procedure 24(b)(2) served to support the trial court's actions, acknowledging its discretion in handling juror questioning. No abuse of discretion was found in the trial court’s decision to question a juror in chambers, with legal counsel and a court reporter present, leading to no relief for the Defendant on this issue. The trial court sentenced the Defendant as a Range I offender for aggravated sexual battery, a Class B felony, with a sentencing range of eight to twelve years. The Defendant received a mid-range sentence of nine years for each count, with the first two counts to run consecutively and the third count to run concurrently, resulting in an effective eighteen-year incarceration term. The Defendant argued that the sentence was excessively harsh. Prior to sentencing, the court considered various factors, including trial evidence, the presentence report, sentencing principles, the nature of the crime, and mitigating and enhancement factors as outlined in Tennessee law. The principles emphasized that sentences should reflect the offense's seriousness, promote rehabilitation when feasible, and be the least severe necessary to achieve sentencing purposes. The court is required to consider advisory sentencing guidelines, which suggest the minimum sentence should typically be imposed, adjusted based on mitigating or enhancing factors. Confinement considerations include the need to protect society from defendants with a significant criminal history. Confinement is deemed necessary under certain conditions: to maintain the seriousness of the offense, to deter similar crimes, or when less restrictive measures have failed with the defendant. According to Tennessee law, a trial court’s sentencing decision is reviewed under an abuse of discretion standard with a presumption of reasonableness if the sentence falls within the appropriate range and adheres to the Sentencing Act's principles. A misapplication of enhancement or mitigating factors does not negate this presumption, and the court will uphold the sentence as long as it complies with statutory purposes, even if a different outcome might have been preferred. The burden of proof lies with the appellant to demonstrate the sentence's impropriety. In this case, the trial court's sentencing was supported by the record, which included an unchallenged presentence report. The report highlighted the defendant's two prior misdemeanors and the victim’s psychological impact from the defendant's actions, including her anxiety disorder. The defendant’s mother testified about the family’s financial struggles following the convictions. The defendant requested a lighter sentence to support his family, whom he provided for as the sole provider. The trial court classified the defendant as a Range I offender and applied enhancement factors based on his criminal history, the victim’s significant injuries, and the abuse of a position of trust, giving substantial weight to the last factor. Mitigating factors considered included the defendant's military service, employment history, and family support. Consequently, the trial court sentenced the defendant to nine years for each conviction, deciding on partial consecutive service. The trial court sentenced the Defendant to a total of eighteen years in the Tennessee Department of Correction, with counts one and two served consecutively and count three running concurrently. This decision was based on several factors, including the nature and scope of the sexual acts, the impact on the victim, and the relationship between the Defendant and the victim. Tennessee Code Annotated section 40-35-115(b)(5) allows for consecutive sentences when multiple sexual offenses against a minor are involved, especially considering aggravating circumstances such as the duration of the Defendant's unreported sexual activity and the resulting physical and mental damage to the victim. The trial court adhered to the Sentencing Act's principles and appropriately applied enhancement and mitigating factors. There was no abuse of discretion in the sentencing decision, and as a result, the court affirmed the trial court’s judgments.