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State v. Wise

Court of Criminal Appeals of Tennessee, Knoxville

June 4, 2015


Session Date: January 21, 2015

Appeal from the Criminal Court for Sullivan County No. S61337 R. Jerry Beck, Judge

Mark D. Harris, Kingsport, Tennessee, for the appellant, Michael Wise.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Barry P. Staubus, District Attorney General; and Julie Canter, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.


Robert H. Montgomery, Jr., J.

On February 24, 2014, the Defendant entered a best interest guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to sexual battery by an authority figure. At the guilty plea hearing, the State summarized the basis for the plea: Bristol police officers responded to Windsor Avenue on August 16, 2012, regarding a reported sexual assault. The victim, the Defendant's stepdaughter, told police that four to six months earlier, the Defendant entered her bedroom, slipped his hand down her pants, and touched her. She told officers that a few days after this incident, the Defendant again entered her bedroom and touched her similarly. The victim told her mother of the incident, but her mother told her that the Defendant was taking medications and could not recall the incident.

The victim told the police that she and the Defendant previously were in a vehicle together and that he told her that one of his sexual fantasies was to "sleep with a virgin" and that he wanted her to "finger herself." She refused.

The Defendant told the police that the victim had recently confided in him that she was having "issues with her sexuality." The Defendant was taking antidepressant and anxiety medications and was having odd dreams, thoughts, and hallucinations. The Defendant told the police that one night around February 1, he awoke and that while walking around his house, he accidentally went into the victim's bedroom. The Defendant lay down on the victim's bed, positioned himself against the victim, and put his hand down her pants, touching the bare skin of her vagina.

The Defendant stipulated to the factual basis for the guilty plea, and the trial court accepted the plea and imposed the agreed three-year sentence.

At the sentencing hearing on April 11, 2014, a presentence report, a sex offender risk assessment report, and a victim impact statement were received as exhibits. The Defendant did not testify.

The presentence report contained information relating to the incident and the Defendant's background. The investigating officer's initial version of the incident showed that the Defendant could not remember the incident due to the medications he was taking. The Defendant explained that the victim had recently "come out about being a lesbian" and admitted to him that she and her girlfriend touched each other sexually while in a restroom at school. The victim also said a boy at school told her about his fantasy of sleeping with a virgin. The Defendant said every man had the same dream. He then told his wife about the victim's statements and informed the victim that he would alert the school about the victim's sexual acts. The victim said she would call the police.

In the Defendant's statement provided to the police on August 22, 2012, and included in the report, the Defendant said that his doctor began changing his medications in January 2012. He explained that the reason he touched the victim's vagina was because he thought he was in his own bedroom. Once the Defendant realized the victim was not his wife, he left the victim's bedroom. A few days later, the Defendant's wife asked the Defendant about the incident, and out of embarrassment, he replied that he did not remember the incident but that if it occurred, it was due to his medications. The Defendant told the police that he was sorry for what he did, that he did not mean to touch the victim's vagina, and that he did not ask the victim to touch herself sexually in front of him.

The report showed the thirty-seven-year-old Defendant had previous convictions for petit larceny in Virginia at age eighteen and for traffic offenses that occurred between ages twenty-two and thirty-seven. The Defendant completed the tenth grade but did not graduate or obtain a high school equivalency certificate.

The report showed the Defendant's mental health was fair while his physical health was good. The Defendant took Paxil for anxiety and depression. The Defendant suffered from knee pain, hypertension, high triglycerides, arthritis, and degenerative disk disease. As a juvenile, the Defendant received treatment for behavioral problems. The Defendant reported that his only use of alcohol occurred when he and his wife celebrated their anniversary, ...

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