Assigned on Briefs June 24, 2014 at Knoxville
Appeal from the Circuit Court for Weakley County No. 2013-CR55 William B. Acree, Jr., Judge
Joseph P. Atnip, District Public Defender; and Noel H. Riley, Assistant Public Defender, for the appellant, Mark Elihu Cooper.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which and Robert W. Wedemeyer, J., joined. Joseph M. Tipton, P.J., concurred in results only.
D. KELLY THOMAS, JR., JUDGE
On May 6, 2013, a Weakley County grand jury indicted the Defendant for sexual battery by an authority figure (Count 1); statutory rape by an authority figure (Count 2); incest (Count 3); and rape (Count 4); all counts involving his minor, biological daughter A.T. See Tenn. Code Ann. §§ 39-13-503, -13-527, -13-532, & -15-302. The Defendant pled guilty as charged.
At the guilty plea hearing, the trial court received testimony from the Dresden Chief of Police Randal Walker, who worked on this case as a police officer for the City of Martin. The trial court gave the following reason for prompting this testimony: "Before he came in, Chief Walker was telling me something about this case, and I told him I would go ahead and put that on the record under oath so there won't be any communications outside. It concerns some other situations involving the same [victim]." The trial court then questioned Chief Walker. Chief Walker testified that the victim had previously been sexually abused by her mother's boyfriend while living in South Carolina; that the Defendant brought the victim back to Tennessee after learning of that abuse; that the Defendant and his daughter then co-habitated with a roommate (his sister's boyfriend); that the roommate began to sexually abuse the victim; that the Defendant was present at the trial against the roommate; and that, after that trial, the Defendant began to have sexual relations with the victim. Chief Walker opined, "This poor girl has problems. Her whole life has been messed up by people that just don't care about her." Defense counsel declined to ask any questions of Chief Walker.
After appropriate questioning of the Defendant's waiver of his various rights, the trial court accepted the Defendant's pleas. The trial court made the following reservation: "Determination will be made at a later date as to whether or not you can be sentenced separately for these crimes or whether or not they have to be merged into one." The Defendant affirmed that he understood.
A sentencing hearing was held on October 17, 2013. The presentence report was entered into evidence. The report showed that the thirty-three-year-old Defendant was divorced; had one child, the victim; dropped out of high school in the tenth grade but later obtained his General Equivalency Diploma; attended some college courses; and had been employed by several different companies as a laborer or a driver. Regarding his criminal history, the Defendant had one February 14, 2013 conviction for passing a worthless check up to $100, with the sentence of eleven months and twenty-nine days suspended to probation following re-payment of the check.
The Defendant provided the following version in the personal questionnaire:
My version is it should not have occurred at all. She was causing it to happen by coming in a[nd] dropping towels and grabbing me. But I pray everyday about what happened and have to deal with the pain this has caused everyone. I just pray to God for her and anyone else. I just want her to grow up happy and healthy and blessed.
Information from an investigative report was also included in the agency statement portion of the presentence report. In the Defendant's statement detailed therein, the Defendant admitted to his knowledge of prior sexual abuse of the victim by other mem. An interview of the victim was also included therein, wherein she recounted previous incidents of sexual abuse at the hands of two other men besides the Defendant. The victim further described multiple instances of sexual abuse by her father, including one occurrence in late November 2012 and another one around Christmas of that year. The victim was fourteen years old during this time period.
At the sentencing hearing, the prosecutor stated that he was relying on these two occurrences described in the victim's statement as the basis for the Defendant's pleas: the Christmas incident for Count 1 (sexual battery by an authority figure); and the November incident for Counts 2, 3, and 4 (statutory rape by an authority figure, incest, and rape, respectively).
The Defendant testified on his own behalf at the sentencing hearing. According to the Defendant, the victim's mother and he were no longer together. The Defendant was aware that, while the victim lived with her mother and when the victim was about eight or nine years old, a boyfriend of the victim's mother was accused of sexual abuse against the victim, although the Defendant did not believe that official charges were ever pursued against that individual. The victim was removed from her mother's care sometime between 2005 and 2006 according to the Defendant. The Defendant was present during the 2010 or 2011 trial of his sister's boyfriend for sexually abusing the victim; he was a potential witness in that case because the victim had told him about the abuse, although he never testified. The Defendant admitted that he sexually abused his daughter during the time they lived together, which followed both of the instances of prior abuse. He clarified his prior statements in the presentence questionnaire about the abuse being the victim's fault: "I was just trying to state part of it, but it is not her fault. I just want her to be happy and blessed and go on having a full life." The Defendant reported that the victim now lived with her aunt.
In rendering its sentencing decision, the trial court relied upon the facts submitted by the State—two occurrences, one in November of 2012 (supporting Counts 2, 3, and 4) and the other around Christmas of 2012 (supporting Count 1). The trial court imposed sentences of six years for Counts 1, 2, and 3, and a sentence of twelve years for Count 4. The trial court ordered partial consecutive sentencing, ordering Counts 2, 3, and 4 to be served concurrently with one another but consecutively to Count 1,  for a total effective sentence of eighteen years in the Department of Correction. The Defendant perfected a timely appeal.
On appeal, the Defendant contends that the trial court erred by enhancing the length of his various sentences, by imposing consecutive sentences, and by considering Chief Walker's ex parte communications and subsequent testimony. The State responds that the trial court imposed an effective ...