Session October 2, 2013.
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Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed. Appeal by Permission from the Court of Criminal Appeals Criminal Court for Davidson County. No. 2007-C-2067. Mark J. Fishburn, Judge.
Peter J. Strianse, Nashville, Tennessee, for the appellant, Fred Chad Clark, II.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Brent C. Cherry, Assistant Attorney General; John H. Bledsoe, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.
WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.
WILLIAM C. KOCH, JR., JUSTICE.
This case involves the prosecution of a father in the Criminal Court for Davidson County for the sexual abuse of his children. After a jury found him guilty of seven counts of rape of a child and two counts of aggravated sexual battery, the trial court imposed an effective thirty-four-year sentence. On appeal, the defendant took issue with (1) the admissibility of recordings of his confession to his wife, (2) the adequacy of the corroboration of his confession, (3) the admissibility of evidence of his predilection for adult pornography, and (4) the propriety of a jury instruction that the mental state of " recklessness" could support a conviction for both rape of a child and aggravated sexual battery. After upholding the admission of the defendant's confession to his wife and the jury instructions, the Court of Criminal Appeals decided that the admission of the evidence of the defendant's predilection for adult pornography, while erroneous, was harmless. The Court of Criminal Appeals also determined that the record contained sufficient evidence to uphold three counts of rape of a child and the two counts of aggravated sexual battery. State v. Clark,
No. M2010-00570-CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012). We granted the defendant's Tenn. R. App. P. 11 application for permission to appeal and now affirm the judgment of the Court of Criminal Appeals.
Chad Clark, his wife, and their two daughters, H.C. (age 6) and K.C. (age 4), were at home on the evening of January 12, 2007. Mr. Clark's mother was visiting. While his wife was watching television, Mr. Clark, his mother, and his two daughters were using the computer to look at pictures and videos of a recent family trip to Disney World.
In an effort to get attention, H.C. grabbed her father's hand and moved it between her legs. When Mr. Clark pulled his hand away, H.C. announced that she had put her daddy's hand on her " coo-coo."  Ms. Clark took H.C. upstairs and
told her that her conduct was inappropriate. The rest of the evening continued without incident, but the Clarks' family life was about to change dramatically.
While bathing K.C. the following Sunday evening, Ms. Clark told her that she should never permit anyone to touch her private parts, and she asked K.C. whether anyone had ever touched her inappropriately. According to Ms. Clark, K.C. replied that her father had touched her. To demonstrate what her father had done, K.C. put her own hand near her groin and started moving it around. K.C. then told her mother that sometimes her father " goes like this, and sometimes he goes crazy." She also told her mother that this happened at night when Ms. Clark was in bed.
Disturbed by this information, Ms. Clark gathered up H.C. and K.C. and left the house. She told Mr. Clark they were going shopping, but instead, Ms. Clark drove to the home of the school guidance counselor. After K.C. told the counselor that her father had touched her private parts and had instructed her not to tell her mother about it, Ms. Clark telephoned the Tennessee Department of Children's Services and the Metropolitan Nashville Police Department.
Ms. Clark and the children spent the next few nights in a hotel. She spoke with Mr. Clark several times by telephone. Ms. Clark did not divulge K.C.'s accusations during these conversations. Instead, she told Mr. Clark that she needed some time away to deal with the stress surrounding their plans to move into a new house.
Ms. Clark met with Detective David Zoccola on January 18, 2007, at the Criminal Justice Center in Nashville. She agreed to cooperate with the investigation of her daughters' statements by making a " controlled" police-recorded telephone call to Mr. Clark using a special police department telephone. During Ms. Clark's forty-five minute conversation with Mr. Clark, Detective Zoccola wrote notes to Ms. Clark suggesting things she could say to elicit a confession from Mr. Clark.
At the outset of the conversation, Mr. Clark denied touching his daughters inappropriately and suggested that the family should seek counseling. Ms. Clark implored him to tell the truth and told him that if he did, the family could be reunited and return to normal. When Mr. Clark offered to " lie" and spin a contrived story about molesting the girls so that they could come home, Ms. Clark responded that she absolutely needed to hear " the truth." She told Mr. Clark:
Just say you did it so I know you did it and then we can get on with our lives. Just be honest with me, Chad. I don't want to deal with this anymore. I want to move on. I want to start today being a family again. I want to come home tonight. I want to bring our girls. I want us to lay down in their bed and say their prayers like we do every night and be a family again.
Mr. Clark replied that he had " touched" his daughters but that he could not remember the details. Toward the end of the conversation, Mr. Clark became suspicious that the call was being monitored because he heard static on the line. He told Ms. Clark that he would call her back soon to make arrangements for the two of them to have a conversation face-to-face.
Mr. Clark called Ms. Clark on her cellular telephone before the police could install a recording device on it. The police recorded Ms. Clark's side of the conversation. During this call, Ms. Clark made arrangements with Mr. Clark to meet him that evening in the parking lot of the Opry Mills shopping center in Nashville.
The police installed a recording device and a transmitter in Ms. Clark's automobile. At the authorities' request, Ms. Clark signed a form consenting to having her conversation with her husband monitored and recorded by the police. This form also stated, " I understand that any recording made will become evidence in a criminal case being investigated by Det. David Zoccola."
Mr. Clark was already waiting in his automobile when Ms. Clark arrived at the shopping center. Approximately eight police officers were nearby in unmarked vehicles ready to listen in on the Clarks' conversation. Mr. Clark got into his wife's automobile and immediately began divulging the details of occasions when he had touched his daughters inappropriately.
During this recorded conversation, Mr. Clark recalled the times when Ms. Clark had caught him looking at pornography at night on the Internet. Suggesting that the pornography was related to his conduct with his daughters, Mr. Clark explained that looking at pornography gave him " these thoughts . . . just, you know, thinking about sex" and that these thoughts prompted him to start looking at his daughters' private parts when they were in the bathtub and then to touch their genitals and to stick his finger in their anuses. Mr. Clark eventually told Ms. Clark that he had touched H.C. inappropriately five to seven times and K.C. two to four times. He also admitted that he had instructed the children to keep his conduct a secret.
Ms. Clark received one telephone call from the police during the conversation to tell her that she should end the discussion because they had obtained sufficient evidence against Mr. Clark. The police arrested Mr. Clark when he got out of his wife's automobile. During a subsequent two-hour interrogation, Mr. Clark retracted the incriminating statements he had made to his wife and made no further incriminating statements. On August 7, 2007, a Davidson County grand jury indicted Mr. Clark for twelve counts of rape of a child in violation of Tenn. Code Ann. § 39-13-522(a) (Supp. 2007) and two counts of aggravated sexual battery in violation of Tenn. Code Ann. § 39-13-504 (2006).
On June 6, 2008, Mr. Clark moved to suppress the conversations with his wife that had been recorded by Detective Zoccola and his team. He argued that his wife was acting as an agent of the police when he confessed and that she had coerced him into making involuntary confessions that were false. The trial court conducted a suppression hearing on July 17, 2008, at which Detective Zoccola testified.
The trial court denied Mr. Clark's motion to suppress on October 1, 2008. After noting the State's argument that Ms. Clark had been motivated to cooperate with the authorities " solely by her concern for the health, safety, and welfare of her daughters," the court found that Ms. Clark " was equally, if not primarily, motivated by her desire to gather evidence for criminal prosecution." Because the authorities had instigated and guided the recorded conversations, the court decided that Ms. Clark had been " an instrument of the State." However, the trial court decided that Mr. Clark's recorded statements to his wife were admissible because they had not been coerced. The trial court also granted Mr. Clark permission to seek an interlocutory appeal of its decision, but the appellate courts declined to hear the appeal.
On August 31, 2009, Mr. Clark filed a motion to exclude the evidence related to his possession of adult pornography. The trial court granted the motion and ordered that the recordings of Mr. Clark's conversations
with his wife be redacted to eliminate the references to his possession and enjoyment of pornography. The case proceeded to trial in September 2009, but the jury was unable to agree upon a verdict.
Prior to his second trial, Mr. Clark sought permission to call Dr. James Walker, a forensic neuropsychologist at Vanderbilt University. Dr. Walker planned to testify that Mr. Clark had an unusually high degree of " interrogative suggestibility" which made him predisposed to making false confessions when under pressure. During a hearing on November 12, 2009, Dr. Walker told the court that he had concluded that Ms. Clark dominated the marital relationship and that Mr. Clark was atypically weak-willed and compliant, especially toward Ms. Clark. Following the hearing, the trial court decided that Dr. Walker could testify. However, the court also decided that the State would be permitted to introduce evidence that Mr. Clark used pornography (knowing that his wife disapproved) in order to demonstrate that Mr. Clark did not always yield to his wife's wishes.
Mr. Clark's second trial commenced on November 16, 2009. At the outset, Mr. Clark's two daughters testified that their " dad" had touched their " private parts" but that they did not remember much about these incidents any more. In addition to the children, the State called Ms. Clark, the school guidance counselor who had first talked with the children, the teacher of the children's Bible class, the nurse practitioner who interviewed and examined the children at the Our Kids Center, Detective Chad Gish who installed the recording device in Ms. Clark's automobile and who analyzed the contents of Mr. Clark's computer, and Detective Zoccola. During Detective Zoccola's testimony, the jury heard the recordings of the three conversations between Mr. Clark and his wife -- the original controlled call, the one-sided telephone call, and the conversation in Ms. Clarks automobile.
Mr. Clark testified on his own behalf and insisted that he had falsely confessed to crimes that he had not committed. He also presented the testimony of his mother, a coworker and neighbor, and Dr. Walker. Dr. Walker described Mr. Clark as an unassertive and weak-willed man who was henpecked by his wife. He also testified that Mr. Clark's score on the Gudjonsson Suggestibility Scale was unusually high, which indicated that Mr. Clark was highly susceptible to being coerced into falsely confessing.
On November 19, 2009, the jury found Mr. Clark guilty of two counts of aggravated sexual battery and seven counts of rape of a child. On January 7, 2010, the trial court sentenced Mr. Clark to an effective sentence of thirty-four years. Mr. Clark appealed, and the Court of Criminal Appeals affirmed three of his rape convictions and his two convictions for aggravated sexual battery but reversed four of Mr. Clark's rape convictions because of problems in the State's election of offenses. The intermediate appellate court also affirmed Mr. Clark's thirty-four-year sentence. See State v. Clark,
No. M2010-00570-CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012).
We granted Mr. Clark's Tenn. R. App. P. 11 application for permission to appeal.
Later, we docketed this case with State v. Sanders,
No. M2011-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim. App. Oct. 9, 2012), perm. app. granted (Tenn. Feb. 15, 2013), another case that involved the police surreptitiously recording the defendant's incriminating statements to the victim's mother.
Mr. Clark raises four errors in this appeal. First, he asserts that the evidence is insufficient to support any of his convictions because the State failed to present independent evidence corroborating his confession. Second, he argues that the trial court erred by failing to suppress the recordings of his conversations with his wife. Third, he insists that the trial court erred by permitting the State to present evidence relating to his possession and enjoyment of pornography. Finally, Mr. Clark asserts that the trial court erred by instructing the jury that the mental state of " recklessness" could support convictions for rape of a child and aggravated sexual battery.
Mr. Clark's first challenge is to the sufficiency of the evidence. Our role with regard to this issue in a criminal case is to " determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Hawkins, 406 S.W.3d 121, 130 (Tenn. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also Tenn. R. App. P. 13(e). In conducting this analysis, " we must afford the State the strongest legitimate view of the evidence and any reasonable inferences that may be drawn from it." State v. James, 315 S.W.3d 440, 455 (Tenn. 2010). A verdict of guilty replaces the defendant's presumption of innocence with a presumption of guilt. The defendant thus bears the burden of demonstrating insufficiency of the evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011).
We apply the same standard of review to both circumstantial and direct evidence. Circumstantial evidence alone is sufficient to support a conviction, and the circumstantial evidence need not exclude every reasonable hypothesis except that of guilt.
State v. Hawkins, 406 S.W.3d at 131; State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011).
Specifically, Mr. Clark relies on the long-established common-law rule that a conviction cannot be founded solely on a defendant's confession. A conviction based on a confession cannot stand unless the jury was presented with independent corroborating evidence. See State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000).
In State v. Bishop, 431 S.W.3d 22 (Tenn. 2014), we recently clarified the corroboration rule in Tennessee. Tennessee follows the " modified trustworthiness standard" rather than the traditional corpus delicti rule. State v. Bishop, 431 S.W.3d at 59-60. We explained that under this standard:
When a defendant challenges the admission of his extrajudicial confession on lack-of-corroboration grounds, the trial court should begin by asking whether the charged offense is one that involves a tangible injury. If the answer is yes, then the State must provide substantial independent evidence tending to show that the defendant's statement is trustworthy, plus independent prima facie evidence that the injury actually occurred. If the answer is no, then the State must provide substantial independent evidence tending to show that the defendant's statement is trustworthy, and the evidence must link the defendant to the crime.
State v. Bishop, 431 S.W.3d at 60. " Prima facie" evidence is " [e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced." Black's Law Dictionary 638-39 (9th ed. 2009). " Substantial evidence" is " [e]vidence that a reasonable mind could accept as adequate to support a conclusion; evidence beyond a scintilla." Black's Law Dictionary 640 (9th ed. 2009).
The corroboration requirement is a low threshold. Its purpose is twofold: to weed out false confessions to nonexistent crimes (by requiring some independent evidence that the injury occurred) and to weed out false confessions to actual crimes (by requiring some independent evidence that implicates the accused). State v. Bishop, 431 S.W.3d at 59-60. The standard of proof required to clear this hurdle is even lower than the " preponderance of the evidence" standard. State v. Bishop, 431 S.W.3d at 60 n.33 (quoting Smith v. United States, 348 U.S. at 156).
Examples of crimes that result in no tangible injury to an identifiable victim include inchoate crimes, certain financial crimes, status crimes, and child molestations that involve no physical evidence and about which the victim is too young to testify or is unable to remember the crime. State v. Bishop, 431 S.W.3d at 59 n.27. In this case, Mr. Clark was accused of committing physical acts against identifiable victims. While the victims were young and their memories of the events were minimal, the victims were capable of testifying. Thus, this is a " tangible injury" case. To meet the corroboration requirement, the State was required to present the jury with substantial independent evidence tending to show that the defendant's statement is trustworthy, plus independent prima facie evidence that the injury actually occurred.
Aside from Mr. Clark's recorded admissions, the only substantive evidence the State offered at trial was the testimony of his two young daughters. Other witnesses, including Ms. Clark and the guidance counselor, recounted the girls' earlier statements to them that contained details of the crimes. But these prior out-of-court statements were offered as " prior consistent statements" in response to Mr. Clark's attempts to impeach the girls' credibility. The trial court instructed the jury that these statements were not offered for the proof of their content. See Tenn. R. Evid. 801.
The girls' trial testimony was brief and conveyed few details. When asked, " Why are you here today?," K.C. replied, " Because my dad did something bad." K.C. said her dad " touched a private part," and did it on " the skin" rather than over her clothes. She acknowledged the events were hard to remember because they happened so long ago. In response to the prosecutor's question, she said she had told the truth when she told her mother what happened. K.C. said she remembered her dad touching her in the bathroom at her house while H.C. was present, but otherwise she " sort of forgot a bunch of it."
H.C. also testified. When the prosecutor asked her, " what happened," H.C. responded, " we had a problem and my dad
touched me in my private area." The prosecutor asked whether it happened at her house. H.C. responded, " That I do not know." Like K.C., H.C. acknowledged that she had told the truth when she told her mom about the touching. Both children identified the " private" area using a drawing of a naked girl.
The children's testimony alone provided adequate corroborating evidence to clear the low threshold of the modified trustworthiness standard. First, their testimony provided prima facie evidence that a sex crime had occurred. Second, their testimony provided substantial independent evidence that Mr. Clark's confession was trustworthy. In State v. Bishop, we explained that " [t]o establish trustworthiness, the State's independent evidence must corroborate essential facts contained in the defendant's statement. For example, independent corroboration of one key part of an extrajudicial confession or admission may corroborate the entire statement." State v. Bishop, 431 S.W.3d at ...