Anthony S. Harding was convicted by a Sumner County jury on six counts of aggravated statutory rape and one count of attempted aggravated statutory rape, with the latter conviction subsequently dismissed by the trial court. Following a sentencing hearing, Harding was ordered to serve four years for each count of aggravated statutory rape consecutively, resulting in a total effective sentence of twenty-four years. On appeal, Harding raised four issues: 1) the indictment's alleged insufficiency due to lack of specific dates; 2) the sufficiency of evidence for the convictions; 3) exclusion of testimony from an alibi witness; and 4) the imposition of an excessive sentence. The Court of Criminal Appeals affirmed the convictions and sentences for aggravated statutory rape but remanded the case for correction of judgment forms to reflect the dismissal of the attempted aggravated statutory rape count. The factual background indicates that Harding was indicted on May 7, 2009, for offenses occurring between January 10 and February 18, 2009, involving a sixteen-year-old victim, F.P. The victim testified about her relationship with Harding, which developed through text messaging after being introduced by a friend.
The victim frequently exchanged text messages with the Defendant, who instructed her to erase them and was saved in her phone as 'No name.' Their relationship became sexual in late 2008, with the Defendant warning the victim that they would face consequences if she disclosed their relationship, implying he would go to jail and she would go to juvenile detention. The victim recounted a trip to Florida for New Year’s Eve in 2008, returning January 4, 2009. After the Defendant moved to Gallatin, he arranged to meet her near a boat dock, about a five-minute walk from her apartment, where they typically met at night for brief sexual encounters. The victim described instances of vaginal intercourse and oral sex, stating she had never had sex before meeting him. She expressed concern about becoming pregnant as the Defendant did not use protection, and he dismissed their actions, claiming they weren't having sex. The victim estimated they had intercourse approximately twenty times and engaged in oral sex five or six times. She revealed that the Defendant threatened her by stating she had to obey him or he would become angry and find her. All sexual incidents occurred at the boat dock except for one at the Defendant's house during the day, where he had promised a hot tub. After arriving, they went directly to the bedroom, and she performed oral sex for the first time. On February 18, 2009, while at the boat dock with the Defendant, a friend overheard them during a phone call. Following the call, the victim decided to go home, where her mother took her cell phone; initially, the victim did not disclose the situation out of fear.
The victim communicated to her mother and aunt that a background voice in her phone call with C.L. belonged to a school friend. She admitted to sending the Defendant a text indicating she believed they had convinced her. On February 19, 2009, after band practice, her mother took her to the police station where she met Detective Neal Harris, expressing her fear and desire to end the relationship with the Defendant. During her statement, she recounted that her first sexual encounter with the Defendant occurred shortly after returning from Florida on January 4, 2009, followed by two additional incidents a few days apart, all taking place at the boat dock. The first oral sex incident happened at the Defendant's house, with multiple occurrences at the boat dock thereafter. The last oral sex act occurred close to her conversation with Detective Harris, with another encounter at the boat dock on February 18, coinciding with C.L.'s call and her mother's suspicions.
Under Detective Harris's guidance, the victim texted the Defendant, who did not respond. A subsequent attempt to contact him on February 20 resulted in a phone call that was recorded for the jury. The victim noted that the Defendant's messages included topics of God and religion, and she sensed his growing suspicion. She admitted to fabricating claims of physical abuse by her mother to elicit sympathy and halt the situation with the Defendant. The victim had been receiving therapy, which she felt was beneficial.
During cross-examination, the victim provided details about her meeting with the Defendant on February 15, specifying the timing and context of their text exchanges that night. She also described the layout of the Defendant's house, detailing her entry through the garage and the setup of the bedroom.
On February 18, the victim left her house around dusk to meet the Defendant at a boat dock. She described the Defendant's penis as "large, very round, obviously, and long" but did not recall other distinctive features. C.L., a friend, had seen a text message from the Defendant requesting a meeting, which led to C.L. contacting the victim and hearing the Defendant's voice, raising suspicions. C.L. informed her mother, who subsequently told the victim’s mother. Following an interview with the police, the victim assisted Detective Harris in collecting her clothing for DNA testing; however, no DNA was found. The victim's mother later took her for a medical examination, during which the victim was diagnosed with a sexually transmitted disease.
The victim testified that she frequently met the Defendant, almost every other night. The victim's mother corroborated many of these details, noting changes in the victim's behavior after moving to a new apartment. On February 18, 2009, after receiving a call from C.L.'s mother, the victim’s mother visited their home. Following this visit, she confiscated the victim's cell phone and discovered an entry labeled "No name," which the victim initially claimed was a school friend. Eventually, the victim admitted "No name" referred to the Defendant.
The victim's mother kept the victim's cell phone at school on February 19 to monitor for further contact from the Defendant. The Defendant did text the victim, prompting her mother to respond on her behalf. Some messages alarmed the mother, particularly those inquiring about undressing in front of band members. After reviewing these messages, the victim's mother went to the police, presented the texts, and took the victim to the police station for an interview. While waiting, she noted that the victim's cell phone continued to receive messages from the Defendant. On cross-examination, the victim's mother estimated the call from C.L.'s mother occurred around 8:50 p.m., based on the timing of the television show American Idol.
Detective Harris testified regarding his interactions with the victim and her mother on February 19, 2009, following reports of a sexual relationship with the Defendant. He learned that the Defendant, born June 16, 1981, was nearly eleven years older than the victim. During the investigation, Detective Harris attempted to arrange a phone call between the Defendant and the victim but was initially unsuccessful. The victim primarily communicated with the Defendant via text messages. Detective Harris collected clothing from the victim that she believed she wore during the last incident, though she was uncertain about their accuracy. Testing revealed no semen on the clothing.
On February 20, after additional text messages from the Defendant were received overnight, Detective Harris successfully facilitated a phone call where the victim expressed her concerns about their relationship. The conversation included the victim questioning the Defendant about their intimate acts, leading to the Defendant denying that oral sex constituted intercourse and suggesting they remain friends.
Following the conversation, Detective Harris obtained arrest warrants for the Defendant, locating him at his home, which matched the victim's description. The Defendant was taken for questioning, where he confirmed his birthdate and phone number but declined to answer further questions. Detective Harris then subpoenaed the Defendant's phone records from Verizon and the victim's records from Sprint, revealing approximately 4,011 text messages exchanged between them between December 1, 2008, and February 24, 2009, including discussions about sexual activity and arrangements to meet.
The Defendant engaged in explicit conversations with the victim regarding sexual preferences and relationships, expressing a desire for a wife and girlfriend while also wanting to experiment with oral sex. The victim responded affirmatively to the Defendant's inquiries about their sexual activities and expressed a growing interest in their sexual relationship. The Defendant suggested involving another female partner, indicating a collaborative approach to their sexual dynamics.
Detective Harris testified about the exchanges between the Defendant and the victim, highlighting that the Defendant instructed the victim to delete certain messages and that the victim communicated with the Defendant about being seen by another individual regarding their interactions. There were discussions about the victim's experiences in the locker room and other girls present.
On February 19, during a conversation in Det. Harris's office, the victim expressed her desire to see the Defendant and her enjoyment of their sexual encounters, although the Defendant claimed they did not have sex. The victim noted that they typically engaged in sexual acts whenever they met. She did not identify any unique features about the Defendant's anatomy and could not recall the exact date of their first sexual encounter. However, she reported that their meetings occurred frequently at a boat dock during late-night hours, totaling approximately twenty-six sexual encounters between January 11 and February 18.
The Defendant admitted to sending text messages to the victim but denied any physical sexual contact, claiming their interactions were limited to phone sex and role-playing in texts. He stated that he never met the victim in person and that any discussions about meeting were merely for his arousal. His wife, Sarah Harding, testified that they typically went to bed between 10:00 p.m. and 11:00 p.m. and that she was a light sleeper who would have heard the Defendant leave the house at night, asserting it was impossible for him to sneak out without her noticing. She also noted he had no sexually transmitted diseases but mentioned he had bumps on his penis that could be felt during oral sex. Laura Doyka, the Defendant’s sister-in-law, who lived with them, corroborated that she would hear the garage door open due to her bedroom's location above it. She confirmed she did not recall any late-night openings of the garage door during January and February 2009, stating that if it happened more than a couple of times, she would have noticed.
During closing arguments, the prosecution outlined multiple counts of sexual offenses, detailing specific incidents of intercourse and oral sex that the victim attributed to the Defendant occurring between January 10 and February 15 of 2009, primarily near a boat dock in the woods. The State highlighted the timeline and nature of each alleged incident, connecting them to the victim's testimony and the events leading up to her report to the police.
The jury convicted the Defendant on multiple counts, including Counts One through Four, Count Six, and Count Eight, while acquitting him of Count Five. The jury also found him guilty of attempted aggravated statutory rape for Count Seven. The trial court sentenced him to a total of twenty-four years, with four years for the six aggravated statutory rape convictions and two years for the attempt, running Counts One and Seven concurrently but consecutively to the other counts. After a motion for a new trial, the court dismissed the verdict for Count Seven, deeming the jury's finding inappropriate.
On appeal, the Defendant raises several issues:
1. **Defective Indictment**: The Defendant argues that the indictment for Counts One through Six was insufficient as it lacked specific dates, hindering his ability to prepare a defense. He contends that the victim, while underage, could have provided dates during testimony and that the absence of such details amounted to trial by ambush. He cites constitutional and statutory requirements for indictments to provide clear notice of the charges.
2. **Waiver of Claim**: The State argues that the Defendant has waived his claim regarding the indictment's sufficiency due to the absence of a transcript from the motion for new trial hearing in the appellate record.
The Defendant’s motion for a new trial included claims related to the victim's inability to specify dates, which affected his ability to establish an alibi and raised concerns about the potential duplicity of Counts Three and Four.
The trial court denied the motion for a new trial, stating it had addressed all issues in detail except for the allegation of a duplicitous indictment, which it later found to lack merit. The court clarified that the issue was one of multiplicity, not duplicity, determining that Counts One, Three, and Four of the indictment represented three distinct incidents of sexual intercourse. The victim's testimony and the corresponding dates supported this conclusion. Although the Defendant claimed that the lack of specific dates hindered his ability to prepare a defense, this argument was not raised on appeal regarding duplicity or multiplicity. Instead, it focused on the need for specific dates, an issue not preserved for appeal due to the absence of a transcript from the new trial hearing. The appellate court noted that the Defendant waived his right to challenge the indictment because he did not raise the issue before trial and failed to request a bill of particulars for clarification. The court further emphasized that the indictment was not defective, as it specified the month and year of each offense, and that exact dates are not required unless they are material to the offense. Additionally, the State made an election of offenses during closing arguments, negating the grounds for the Defendant's claim. Ultimately, the Defendant was not entitled to relief based on these arguments.
The Defendant argues that the evidence was insufficient to uphold his six convictions for aggravated statutory rape. The appellate court applies a standard of review to determine if, when viewing the evidence favorably for the prosecution, a rational fact-finder could find the crime's essential elements proven beyond a reasonable doubt. The court does not reevaluate evidence but assumes the jury resolved all testimony conflicts in favor of the State. The jury's determinations regarding witness credibility and evidence weight are final, and a guilty verdict shifts the presumption from innocence to guilt, placing the burden on the Defendant to demonstrate insufficiency of the evidence.
For the aggravated statutory rape convictions, the State needed to establish unlawful sexual penetration involving a victim aged 13 to 17, with the Defendant being at least 10 years older. “Sexual penetration” includes various forms of sexual intercourse and does not require the emission of semen. The Defendant claims the jury acted irrationally, citing inconsistencies in the victim’s testimony regarding specific dates, uncertainty about ejaculation, and her prior false claim of abuse against her mother. He contends the jury's emotions were swayed by text messages, undermining rational judgment. However, the jury credited the victim's testimony, which is legally sufficient for conviction in Tennessee. Additionally, corroborating evidence from text messages and recorded calls supported her account. The victim testified to multiple instances of sexual activity with the Defendant, with estimates of approximately twenty-six encounters over two months. At all pertinent times, the victim was sixteen, and the Defendant was significantly older, aligning with the legal definitions of the alleged crimes.
The events in question were deemed to constitute sexual penetration by the Defendant, qualifying as aggravated statutory rape under applicable statutes. The Defendant argued that the text messages presented at trial were prejudicial, claiming they were inflammatory enough to hinder a rational jury verdict; however, he did not object to these messages during the trial. According to Tennessee Rule of Appellate Procedure 36(a), relief cannot be granted to a party responsible for an error or who failed to act to mitigate such an error. The text messages were relevant, supporting the claim of a sexual relationship between the Defendant and the victim, and the evidence was sufficient to uphold the Defendant's six convictions.
Regarding alibi evidence, the Defendant contended that the trial court incorrectly prevented him from calling his alibi witness, Andrew Doyka, who would testify to the Defendant's whereabouts on February 18, 2009, the date of the alleged offense. Tennessee Rule of Criminal Procedure 12.1 outlines the procedures for alibi defenses. It requires the prosecution to request notice of an alibi defense, to which the Defendant must respond with written notice stating the specific locations and names of alibi witnesses. If the Defendant fails to comply with these notice requirements, the court may exclude testimony from undisclosed witnesses. The rule can only be invoked following a written demand from the district attorney general. The record indicates that there was no such written demand when the case was previously reviewed.
The Defendant's six convictions for aggravated statutory rape were reversed and vacated due to a failure to comply with Rule 12.1's reporting requirements, which necessitate a written demand for notice of alibi defense. Plain error relief was granted because the trial court excluded testimony from an alibi witness, Mr. Doyka. The State sought a rehearing, requesting that a written "Discovery Response and Reciprocal Discovery Request" from June 12, 2009, be included in the record. During trial, defense counsel informed the prosecutor of the intent to call Mr. Doyka as a witness. The prosecutor moved to exclude his testimony, arguing that defense counsel did not provide the required notice of alibi, despite Mr. Doyka having discussed relevant details with the Defendant prior to trial. Mr. Doyka's testimony indicated he was with the Defendant for most of February 18, 2009, providing a timeline of events that included spending the night at the Defendant's house. The trial judge ruled to exclude Mr. Doyka's testimony, citing the failure to comply with Rule 12.1, despite defense counsel's claims of a lack of communication with the prosecutor over the weekend. The motion for rehearing was granted based on the supplemented record.
Potentially damaging evidence was acknowledged, but the speaker emphasized the need to comply with Rule 12.1, suggesting that the defense should have provided information about a witness earlier. This witness could provide significant alibi testimony, asserting the defendant's presence with him from 2:00 p.m. to 9:00 p.m. on February 18th, making it nearly impossible for the alleged events to have occurred during that time. The court noted that the District Attorney's Office had requested a Notice of Alibi, and although the defense's efforts to prepare were recognized, there was a deficiency in notifying the State about the witness's role in potentially disproving the events of February 18th.
The defendant did not raise this issue in his motion for a new trial, nor did he include a transcript of that motion in the appellate record, which could have clarified whether the issue was addressed at the hearing. Consequently, the State argues that the defendant has waived this issue on appeal, a view supported by Tennessee Rule of Appellate Procedure 3(e), which stipulates that issues not presented in a motion for a new trial are treated as waived. Previous case law reinforces that defendants relinquish their right to appeal issues not raised in such motions, and the defendant did not seek plain error review. Thus, the conclusion is that the defendant waived plenary review of the issue due to non-preservation for appellate review.
Regarding sentencing, the defendant contested the trial court’s decisions, particularly the maximum sentence for each count and the consecutive nature of the sentences. Before sentencing, the court must consider the trial evidence, the presentence report, the principles of sentencing, and the nature of the criminal conduct involved.
Evidence presented during the sentencing hearing included factors relevant to enhancement and mitigation as outlined in Tennessee Code Annotated sections 40-35-113 and 40-35-114. The trial court considered statistical data from the Administrative Office of the Courts regarding Tennessee sentencing practices and allowed the defendant to make a personal statement regarding sentencing. It is emphasized that trial courts must articulate their reasons for the imposed sentence to facilitate appellate review, as per Tennessee Code Annotated section 40-35-210(e) and supported by State v. Bise.
The presentence report indicated the defendant had no prior criminal record and a stable work history. Testimony from Lori Meyers, a therapist at the Sexual Assault Center, detailed the victim’s psychological struggles following the statutory rapes, including post-traumatic stress disorder, anxiety, and trust issues. Meyers noted potential long-term effects on the victim, such as chronic depression and suicidal ideations. She had communicated the victim's issues to the victim's landlord, which led to the mother being released from a lease.
Victim impact statements were provided by the victim and her mother, highlighting the deterioration of their relationship due to the victim's trust issues and the abusive role the defendant assumed. The victim tested positive for HPV, a concern raised by her mother due to its association with cervical cancer. The mother expressed the financial strain caused by the situation, including missed work, depletion of savings, and feelings of guilt for not protecting her daughter.
The victim encountered the Defendant at a grocery store, prompting her mother to express concern for their safety and request the maximum sentence for the Defendant. The victim testified that the Defendant threatened her by stating he would find her if she moved and that she belonged to him, warning her not to disclose their interactions to avoid trouble. She described feeling increasingly isolated from friends and family following her sexual relationship with the Defendant and noted ongoing trust issues and safety concerns, exacerbated by a trauma related to her loss of virginity and an HPV diagnosis.
The Defendant’s father provided testimony about the Defendant’s childhood ear surgery and academic history, highlighting his mother's death and the Defendant's missed opportunity to play college football due to missing the SATs. While the Defendant expressed remorse for his actions, he did not admit to physical contact with the victim to his father. He described his current work and academic commitments, including full-time employment and enrollment at Middle Tennessee State University, where he was recognized for leadership. The Defendant acknowledged that his text messages to the victim were inappropriate but claimed they were not representative of his typical behavior. He requested help for what he termed a sex addiction related to messaging, denied attempts to contact the victim, and acknowledged past "sexting" relationships with other women, clarifying that the victim was the only one without a physical relationship.
The trial court questioned the Defendant about his failure to mention his sex addiction during a psychosexual evaluation, to which he claimed he was not asked. The evaluation report indicated the Defendant denied fantasizing about or engaging in sexual acts with the victim, yet he later admitted to masturbating while “sexting” the victim during the trial. Dr. Donna Moore conducted the psychosexual evaluation, revealing that despite lower test scores, the Defendant scored highest on a psychopathic deviance scale, suggesting turbulent relationships and a tendency for immediate gratification without regard for others’ consequences. Dr. Moore assessed the Defendant's risk for sexual recidivism as low. The court subsequently sentenced the Defendant to four years for each of six counts, to be served consecutively. The Defendant contended that the court failed to acknowledge his low risk for future inappropriate behavior, which he argued undermined the presumption of correctness of the sentencing. The State countered that the record supported the imposed sentence. Under the 2005 amendments to the Sentencing Act, challenges to sentencing length are reviewed for abuse of discretion, with a presumption of reasonableness for within-range sentences that align with statutory purposes, including just punishment and potential for rehabilitation. The burden lies on the appealing party to show the sentence's impropriety, and the amended Sentencing Act has removed the presumptive sentence requirement.
The court is required to impose a sentence within a specified range based on the offender's classification (mitigated, standard, persistent, career, or repeat violent). While the minimum sentence in this range is mandated to reflect the seriousness of the crime, adjustments may be made based on mitigating and enhancement factors as outlined in Tennessee Code Ann. §§ 40-35-113 and 40-35-114. The amendments in 2005 rendered the application of these factors advisory, granting trial courts discretion in selecting sentences, provided they remain consistent with the sentencing principles of the Act. Misapplication of these factors does not invalidate the sentence unless it deviates entirely from the guidelines.
In this case, the Defendant, categorized as a Range I standard offender convicted of six Class D felonies, faced a potential sentence of two to four years per count. The trial court imposed the maximum sentence after identifying two enhancement factors: the offense was committed for pleasure or excitement, and the Defendant abused a position of trust. Additionally, a mitigating factor was recognized due to the Defendant's lack of prior criminal history, which was given some weight.
The trial court referenced the Carter v. State of Tennessee ruling, emphasizing that factors are merely guidelines and the court retains discretion to impose any appropriate sentence within the range, as long as it aligns with the purposes and principles of the Sentencing Act. The court articulated its considerations regarding the seriousness of the offense, the necessity of prevention and respect for the law, and the Defendant's potential for rehabilitation, indicating significant concern over this last aspect.
The individual asserts that the defendant's claimed addiction is a fabrication used to cope with personal conflicts, such as issues of trust with family and relationships. The defendant struggles with honesty, as evidenced by his inability to recall his past interactions, which raises concerns about his potential for rehabilitation. The speaker highlights the inappropriate nature of the defendant's communications with a 16-year-old girl, emphasizing the moral depravity of a married 27-year-old engaging in such conduct. References to Dr. Moore’s evaluation suggest the defendant exhibits traits associated with psychopathic deviance, including dysfunctional family relationships and exploitative interactions.
The trial court's decision to impose the maximum sentence of four years for each count is supported by the application of proper sentencing principles, as outlined in the Sentencing Act. The court reinforced that, following the Bise directive, sentencing must adhere to guidelines that allow for discretion within a defined range, irrespective of mitigating or enhancing factors. Moreover, the trial court justified consecutive sentencing based on multiple statutory offenses involving sexual abuse of a minor, noting aggravating circumstances related to the defendant's relationship with the victim, the duration of his misconduct, and the lasting harm inflicted on the victim. Only one aggravating criterion is required to validate consecutive sentencing.
Consecutive sentencing must adhere to the principles that the overall sentence should be proportional to the offense and the least severe necessary to achieve sentencing goals, as outlined in Tenn. Code Ann. 40-35-103(2) and (4). The Defendant was convicted of six sexual abuse offenses against a minor, with the trial court considering aggravating factors such as the ongoing nature of the abuse, which included both intercourse and oral sex occurring almost every other night. The victim experienced significant harm, including physical and psychological trauma, leading to PTSD and HPV. The presence of a single aggravating factor justifies consecutive sentences. The court affirms the consecutive sentencing decision and remands for correction of judgment forms to reflect the dismissal of Count Seven, the attempt conviction.
