Assigned on Briefs July 8, 2014
Appeal from the Criminal Court for Shelby County No. 1201774 Lee V. Coffee, Judge
Stephen Bush, District Public Defender and Phyllis Aluko, Assistant District Public Defender, Memphis, Tennessee, for the appellant, Dwight Gossett.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Carrie Shelton, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined. Jerry L. Smith, J., not participating.
JOHN EVERETT WILLIAMS, JUDGE
Facts and Procedural History
This case arose out of the defendant's inappropriate sexual contact with the minor victims. Between October 15, 2008, and September 2, 2010, the defendant inappropriately touched his step-granddaughters, A.R. and A.C.R.,  several times. The contact occurred at the defendant's residence, a place where the victims frequently spent time. The victims' mother often took the victims to the defendant's residence, and the victims' mother and grandmother had no issue placing the victims in the care of the defendant. At the time of the trial, A.R. was ten years old and A.C.R. was eight years old.
The first incident involved A.R. when she was eight years old and occurred on the patio of the defendant's residence. A.R. had been playing "dress-up" with her younger sister when she went to the backyard to check on the "kiddie pool" that the defendant and the victims' grandmother had recently purchased. The defendant was working on the pool, which A.R.'s mother testified was acquired in the summer of 2010, in the backyard. A.R. was wearing a "loose tank top" that belonged to her grandmother and a "dress-up tutu[.]" When A.R. was on the back patio, the defendant approached her, pulled down her tank top, and kissed one of her breasts twice. The defendant asked A.R. if she liked it and when she told him, "No, " the defendant told her "Shh[.]" A.R. took this to mean that she should not mention the incident to anyone. A.R. did not tell her mother about the incident because she thought she would get in trouble, but she did tell her younger sister, A.C.R., about the defendant's actions.
Sometime after the incident on the patio, A.R. was at the defendant's residence washing her grandmother's car with her younger sister and several friends from the neighborhood. A.R. went inside of the house alone to get popsicles, and she ran into the defendant. The defendant looked down, pointed at his penis, and asked A.R. if she wanted to touch it. A.R. said, "No, " and the defendant attempted to pull A.R.'s hand toward his penis. He managed to pull her hand to within inches of his penis, but A.R. did not touch it. Frightened, she ran back outside without the popsicles.
A third incident occurred when A.R. was playing "house" with her younger sisters in the living room of the defendant's residence. The defendant entered the room and asked for one of the girls to get him a drink, and A.R. agreed. A.R. brought the drink to the defendant in his bedroom, where the defendant was alone and seated in his desk chair. The defendant then rose and pulled his pants and underwear down to his "mid-thigh, " and A.R. saw the defendant's penis. After both of these incidents, the defendant told A.R., "Shh, " and he instructed her not to tell anyone about the incident. After the third incident, A.R. told her grandmother that the defendant was "sexy" in an attempt to convey to her grandmother that the defendant was doing sex-related things to her.
The incident with A.C.R. also occurred in the defendant's bedroom. A.C.R. brought the defendant lunch in his room, and the defendant was seated at his desk using his computer. Once A.C.R. entered the room, the defendant stood up, unbuckled his pants, grabbed A.C.R.'s hand and placed it inside of his pants. A.C.R. attempted to move her hand to the side, and she touched the defendant's skin. The defendant told her, "Shh, " and A.C.R. then pulled her hand away and exited the room. A.C.R. testified that, prior to this incident, she had never spoken to the defendant about having seen or touched someone else's penis.
In early September 2010, A.R. and A.C.R. went to dinner with their mother, younger siblings, aunt, and two cousins. A.R. and A.C.R. were at a separate table with their cousins, and A.C.R. told her cousin C.J. that she had a secret that she would not tell anyone but him. C.J. recalled that A.C.R. was very calm, which was unusual because she was typically energetic. C.J. testified that A.C.R. told him that her grandfather made her touch his private parts, although A.C.R. testified that A.R. told C.J. about the abuse. C.J. looked alarmed when he heard about the touching, prompting the victims' aunt to ask what the children were talking about. The victims then told their mother for the first time about the incidents of abuse. The victims' mother contacted the police and the victims' grandmother and made an appointment for the victims at the Child Advocacy Center. The victims' grandmother called police after speaking with her daughter, and the defendant quickly moved out of the home after the allegations were made.
At the time the allegations were made against the defendant, Lieutenant Carl Ray was a sergeant and investigator with the Memphis Police Department's Child Abuse Sex Crimes division. He was assigned to the victims' case and scheduled the victims for a forensic interview. Lieutenant Ray did not conduct these interviews, but he observed the interviews from a separate room. Lieutenant Ray personally observed A.C.R.'s interview and later went back and reviewed the tape of A.R.'s interview. As a result of the victims' interviews, Lieutenant Ray contacted the defendant and asked him to come in for an interview.
The defendant came on his own to the interview and was not shackled or handcuffed. Before speaking with the defendant, Lieutenant Ray advised the defendant of his Miranda rights. The defendant signed a rights waiver form indicating that he understood his rights and was voluntarily waiving them. The defendant told Lieutenant Ray that he was being charged with "[s]exual abuse or something." When asked to describe what occurred to result in these allegations, the defendant recalled an incident when A.C.R. entered his bedroom while he was changing his shirt and would not leave. A.C.R. began "bragging about what she had seen on other males, including full exposure of the genitals and touching." The defendant said "mean like this[?]" and touched A.C.R.'s hand to his belt buckle. A.C.R. had a "shock[ed] look on her face, " seeming surprised that the defendant "called her out on her bragging." He told Lieutenant Ray that he "never had a problem" getting A.C.R. out of his room after the incident. He recalled that his wife and A.R. were in the house during this incident.
The defendant stated that he was alone with A.R. when she was younger and recalled being outside with A.R. by the pool. When asked if he ever touched or kissed A.R.'s breast, the defendant responded, "No, I don't remember. I can't thin[k] of any thing that could have happened to make her think that." He denied ever pulling down his boxers and telling A.R. to touch his penis while A.C.R. was in the room, and he stated that he did not wear boxers. He stated that he may have rubbed the victims' breasts when "picking them up or something" because the victims were small and the defendant had large hands that covered "a lot of area." He admitted that a former girlfriend made charges with the Department of Human Services (DHS) alleging that he abused one of her daughters. He stated that he never heard from DHS and that the allegation was twenty-five or thirty years old. When asked if he ever touched or fondled the victims in an inappropriate manner, he responded, "I would say no."
At trial, the defendant testified he was in his room changing his shirt when A.C.R. told him, "I have seen all of that." He stated that he touched A.C.R.'s hand to his belt buckle "to see if she was telling the truth" about having seen the private parts of other men. He stated that he had asked her to leave his room while he changed his shirt and performed his "test" to get her to leave the room. He reiterated that he never touched either victim inappropriately.
L. testified that she began living with her mother and the defendant, who were dating at the time, when she was fourteen years old. Whenever her mother was "out selling Avon" or taking her sister to receive allergy shots, the defendant had sexual intercourse with L. in the bedroom and the garage. This occurred over a two-year period until the Department of Social Services removed L. from the home.
The defendant testified that L.'s mother made the allegations against him "as an excuse to turn [L.] over to the State when [her mother] left town." He stated that he did not find out about the allegation until years later, and he testified that he did not have sexual relations with L. He recalled that L. was fourteen to seventeen years old when she began living with him.
At the conclusion of the proof, the jury found the defendant guilty on both counts. The court sentenced the defendant as a Range I, standard offender to twelve years on each count to be served consecutively, for an effective sentence of twenty-four years.
I. Constitutionality of T.C.A. § 24-7-123
The defendant argues that Tennessee Code Annotated section 24-7-123 is unconstitutional for numerous reasons. He also argues that the trial court abused its discretion in determining that the forensic interviewers possessed the necessary criteria to warrant the admissibility of the recorded interviews of the victims and in determining that the interviews were admissible as prior consistent statements. The statute permits the admission, either as substantive evidence or as a prior consistent statement, of a video recording of an interview of a child under the age of thirteen by a forensic interviewer where the child describes any act of sexual contact performed with or on the child by another. T.C.A. § 24-7-123(a). The interview "may be considered for its bearing on any matter to which it is relevant evidence at the trial" of the defendant. Id. In order to admit the video, the child must testify, under oath, that the offered recording is an accurate recording of the events contained in the recording, and the child must be available for cross-examination. Id. at (b)(1). The trial court must be reasonably satisfied that the interview possesses particularized guarantees of trustworthiness, and the court shall consider a variety of factors in making this determination. Id. at (b)(2)(A)-(K). The forensic interviewer conducting the interview must possess specific educational, employment, and training qualifications. Id. at (b)(3)(A)-(H). The entire interview must be recorded, the recording must be both visual and oral and recorded on film, video, or a similar audio-visual means, and every voice heard on the recording must be properly identified. Id. at (b)(4)-(6). The trial court must make specific findings of fact explaining its ruling regarding the admissibility of the interview. Id. at (d). The recording shall not become a public record in any legal proceeding, and the trial court shall order the recording to be sealed and preserved at the conclusion of the trial. Id. at (e).
Prior to trial, the court held an evidentiary hearing to determine the admissibility of the victims' forensic interviews. Multiple witnesses, including the victims and their forensic interviewers, testified. At the conclusion of the hearing, the trial court found that the statute was constitutional and that all of the statutory requirements for admission were met. The court also determined that the forensic interviews would be admissible as prior consistent statements to rehabilitate the witnesses if their credibility was attacked on cross-examination.
In order for this court to address the merits of a constitutional challenge, there must be a genuine "case" or "controversy" present, and the defendant must have standing to bring the challenge. We will not pass on the constitutionality of a statute unless absolutely necessary for the determination of the case and of the rights of the parties to the litigation. County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996).
We are charged with upholding the constitutionality of a statute whenever possible. Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). "It is well-settled in Tennessee that 'courts do not decide constitutional questions unless resolution is absolutely necessary to determining the issues of the case and adjudicating the rights of the parties.'" Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn. 2002)); see Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Therefore, we begin our analysis "with the presumption that an Act of the General Assembly is constitutional[, ]" and we are required to "'indulge every presumption and resolve every doubt in favor of the statute's constitutionality.'" Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (quoting Taylor, 70 S.W.3d at 721. Issues of constitutional interpretation present questions of law, which this court reviews de novo with no presumption of correctness regarding the legal conclusions of the trial court. State v. Robinson, 29 S.W.3d 476, 480 (Tenn. 2000).
Here, the trial court admitted the forensic interviews of the victims for two reasons. First, the trial court admitted the evidence pursuant to T.C.A. § 24-7-123, and second, the trial court ruled that the evidence was admissible as a prior consistent statement for the purpose of rehabilitating a witness. Recently, a panel of this court addressed the constitutionality of § 24-7-123 and noted that if the interview was admissible at trial pursuant to another rule of evidence, it would be unnecessary to determine the constitutionality of section 24-7-123 as a method of evidentiary admission. State v. Barry D. McCoy, No. M2011-02121-CCA-R3-CD, 2012 WL 1941775, at *4 (Tenn. Crim. App. May 30, 2012), perm. app. denied (Tenn. Sept. 19, 2012). This court has repeatedly held that a prior consistent statement is admissible as an exception to the hearsay rule to rehabilitate a witness after an impeaching attack on the witness's testimony. State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993). Therefore, we must first determine whether the trial court properly admitted the interviews as prior consistent statements. If the interviews were properly admitted as an exception to the rule against hearsay, we need not address the defendant's constitutional claims because resolution of the constitutional issue is not necessary to determine the issues of the case. See Barry D. McCoy, 2012 WL 1941775, at *4.
The trial court possesses the sound discretion to determine the admissibility of evidence at trial and that determination will be upheld unless there is a showing that the trial court abused its discretion. See State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). The general rule is that prior consistent statements are inadmissible to bolster a witness's credibility in the absence of an impeaching attack on that testimony. Meeks, 867 S.W.2d at 374 (citing State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980)). However, several exceptions to this rule exist, and "prior consistent statements may be admissible, as an exception to the rule against hearsay, to rehabilitate a witness when insinuations of recent fabrication have been made, or when deliberate falsehood has been implied." State v. Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988). The impeaching attack on the witness's credibility need not be successful in order to admit the prior consistent statement, and wide latitude is given when determining whether the witness's credibility has been sufficiently assailed or attacked. State v. Albert R. Neese, No. M2005-00752-CCA-R3-CD, 2006 WL 3831387, at *6 (Tenn. Crim. App. Dec. 15, 2006), perm. app. denied (Tenn. Apr. 23, 2007). The prior consistent statement is not hearsay because it was offered to rehabilitate the witness and not to prove the truth of the matter asserted. Tenn. R. Evid. 801(c).
On cross-examination, defense counsel asked A.R. why she did not immediately tell her mother or grandmother about the abuse, with the inference being that she did not disclose the incident because the touching did not occur. Defense counsel elicited an admission from both victims that they continued to go to the defendant's residence after the abuse occurred, insinuating that they would have immediately stopped the visits if the abuse actually happened. Both victims also admitted that they had a better memory of the events at the time they disclosed the abuse than they did at the time of trial. The cross-examination challenged the credibility of the victims, as it created the insinuation that the victims were lying about being touched by the defendant. As a result, the forensic interviews were admissible to rehabilitate the credibility of the victims and to corroborate their testimony that the abuse did in fact take place. Further, the trial court provided a limiting instruction to the jury that any prior consistent statements could only be used to assess the credibility of the witness and were not to be considered as substantive evidence. We conclude that the trial court did not abuse its discretion in admitting the videos as prior consistent ...