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State v. Reno

Court of Criminal Appeals of Tennessee, Nashville

July 18, 2017

STATE OF TENNESSEE
v.
PAUL AVERY RENO

          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Circuit Court for Sequatchie County No. 2015-CR-50 Thomas W. Graham, Judge

          Joshua P. Weiss, Chattanooga, Tennessee, for the appellant, Paul Avery Reno.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; J. Michael Taylor, District Attorney General; and Steve Strain, Assistant District Attorney General, for the appellee, State of Tennessee.

         The Defendant, Paul Avery Reno, pleaded guilty to statutory rape, a Class E felony. See T.C.A. § 39-113-506 (2014). Pursuant to the plea agreement, the Defendant agreed to a six-year sentence as a Range III offender, with the method and manner of service to be determined by the trial court. The court ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the court erred by (1) denying judicial diversion, (2) denying alternative sentencing, and (3) ordering the Defendant to register as a sex offender. We affirm the judgment of the trial court but remand for a new sentencing hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

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

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant was indicted for aggravated statutory rape and solicitation of a minor. The Defendant pleaded guilty to one count of statutory rape. The factual basis for the Defendant's plea was set out at the guilty plea hearing as follows:

[B]etween April 1, 2013, and June 30, 2013, [the Defendant] did sexually penetrate the victim in this case. . . . She was between the ages of13 and 18 years old, and actually at the time these events occurred [the Defendant] was 10 years older than the child.
The complaint was made, and not much happened on it. The victim's mother contacted law enforcement. They were able to initiate contact with [the Defendant]. There [were] several text messages exchanged. [The Defendant] made statements consistent with having sexually penetrated the child. [The Defendant] was subsequently arrested by law enforcement. . . . In the course of the interview [the Defendant] did admit that he had sexually penetrated the victim in this case[.]

         Upon questioning by the trial court, the prosecutor stated that the victim was age fourteen at the time of the incident. The prosecutor noted that the Defendant was entering a guilty plea with an out-of-range sentence as a Range III offender and that the agreed sentence was six years. The prosecutor also noted that the Defendant was eligible for alternative sentencing and that his release eligibility was 45%. The trial court questioned the Defendant under oath about his understanding of the terms of the plea agreement and his rights to a jury trial, to confront witnesses, to remain silent, to testify, and to appeal. The Defendant stated that the factual basis for the plea was true, that he understood his rights, and that he wished to plead guilty. The court found that the Defendant was competent to plead guilty, that he understood the consequences of pleading guilty, and that he was entering his guilty plea freely, voluntarily, and understandingly.

         The presentence report reflected that the Defendant was age forty-three and had an eleventh-grade education. The Defendant's criminal record consisted of convictions for traffic-related offenses. The Defendant submitted the following statement during the presentence investigation: "To be honest with you I don't remember much about it. All I do remember [is that] my aunt passed away and [the victim's] mother gave me a K8 [and] told me it was a nerve pill. That's all I remember." The report noted that the Defendant admitted to Detective Lockhart that he had oral sex and sexual intercourse with the victim. The Defendant reported having had two strokes in 2010 and a stroke and a "light" heart attack in January 2016. He denied taking prescription or illegal drugs and drinking alcohol. The report stated that the Defendant passed a drug screen in May 2016. The Defendant reported suffering from untreated "major depression disorder" and anxiety. He reported having spent two weeks at a mental health facility around the time of his mother's death in 1997 or 1998. The report listed women who were mothers to the Defendant's children, and the Defendant's minor children as follows:

1. K.C., [1] age thirty-nine, mother to S.C., age twenty-five
2.Breanna Baugh, age twenty-six, mother to A.M. [2], [3] and S.R., ages six and four
3.B.B., age thirty-three, mother to A.R., age fourteen
4.Terri Diederich, the Defendant's fiancée, age forty-one, mother to B.D.[4], age twelve
5.K.R., the Defendant's wife, age twenty-eight, mother to Ad.R. and R.R.[5], ages three and four
6.S.S., age forty, mother to Z.R., age eight[6]

         The report stated that the Defendant did not provide verification of employment, that he reported working for himself "doing demolition services, " and that he had stopped working because he had not received payment after a month of work. The Defendant reported working for a construction company as a painter between May 2014 and May 2016. The Defendant reported a child support obligation relative to one of his children, and the report reflects he was behind on his payments. Counsel noted at the sentencing hearing that any arrearage was recent and that the Defendant was having difficulty maintaining employment due to the charges in this case.

         At the sentencing hearing, Sequatchie County Sheriff's Detective Jody Lockhart testified that on September 24, 2014, the victim's mother came to the sheriff's department to check on the status of a complaint she had filed on June 6, 2013. Detective Lockhart said that the case had been assigned to different investigators due to personnel changes and that eventually, the case was assigned to him. He said that the complaint alleged that the Defendant had sexual contact with a child. He stated that the victim's mother gave him a cell phone belonging to the victim and that the Defendant had sent the victim text messages. Detective Lockhart said that the Defendant was a friend of the victim's mother and that the victim and her mother identified the Defendant's telephone number as the number from which the text messages came. Detective Lockhart noted that the Defendant also acknowledged the text messages during his police interview, although the Defendant initially denied that the telephone number belonged to him.

         Detective Lockhart testified that he obtained permission from the victim and her mother to pose as the victim and to respond to the text messages. He said the messages the Defendant sent to the victim were sexual in nature, and he read two messages aloud that referred to giving and receiving oral sex. He agreed that the messages were sent about one year after the Defendant was alleged to have had sexual intercourse with the victim.

          Upon examination by the trial court, Detective Lockhart testified that the Defendant visited the victim's family and that he became friendly with the victim. Detective Lockhart denied that the Defendant was an authority figure to the victim.

         On cross-examination, Detective Lockhart testified that the deputy who initially investigated the case had been demoted for multiple reasons, including "being inappropriate" with the county mayor, whom the deputy wanted to fight, and another employee. Detective Lockhart said that the deputy filed a formal report about the Defendant but that Detective Lockhart did not know if the deputy investigated further. Detective Lockhart stated that he did not know if the second deputy to receive the case investigated further. Detective Lockhart said that the second deputy was promoted and that when the victim's mother came to the justice center, Detective Lockhart explained the situation and reviewed the file with the victim and her mother. He said that he interviewed the victim, that the interview was not recorded, and that the victim described incidents occurring one year previously in which she and the Defendant engaged in sexual intercourse at his and the victim's houses. The victim told him that the Defendant never threatened her and that she initially told him no, although she described the encounters as consensual. Due to the amount of time that had passed, Detective Lockhart did not order a forensic examination of the victim.

         Detective Lockhart testified that he did not interview the victim's mother and that he later asked the victim to return to the sheriff's department because, during Detective Lockhart's text message conversations with the Defendant, the Defendant asked certain questions to which only the victim knew the answers. Detective Lockhart said that the Defendant expressed doubt that he was conversing with the victim. Detective Lockhart stated that he retrieved text messages from the victim's cell phone, although he did not subpoena the victim's or the Defendant's cell phone provider records.

         Detective Lockhart testified that during the Defendant's police interview, the Defendant repeatedly denied penetrating the victim, although Detective Lockhart noted that the Defendant "gave signs of deception when he told me no." Detective Lockhart said that during the latter part of the interview, the Defendant admitted to penetrating the victim. Detective Lockhart denied that he or anyone from his office had contacted the victim or her parents after the Defendant entered his guilty plea. Upon examination by the trial court, Detective Lockhart stated that the victim and her family still lived in the area.

         Breanna Baugh, the mother of one of the Defendant's children, testified that she had two children, A.M. and S.R. She said that she had previously had a romantic relationship with the Defendant, that S.R. was the Defendant's biological child, and that the Defendant "took responsibility" for A.M., whom the Defendant met when A.M. was three months old. She stated that S.R. was age four, that A.M. was age six, and that both children lived with the Defendant. She said that the Defendant had a parental relationship with A.M. and treated both children equally.

         Upon examination by the trial court, Ms. Baugh testified that her relationship with the Defendant began in August 2010 when she was age nineteen and that it ended in 2013. She said that she had a good relationship with the Defendant and that he did not owe her child support. She stated that she "went through a rough time" years previously, that she surrendered her children into foster care to "get back on track, " and that after one year, she and the Defendant agreed that he would have legal custody of both children. She said that the children were never in harm's way but that she thought the stated reason for the custody transfer was neglect "according to the paperwork."

         Ms. Baugh testified that she knew the Defendant well, that he was a good person, and that he was caring and dedicated to his children. She said that the Defendant usually worked and that when he was unemployed, he sought work. She stated that she did not live with the Defendant and did not know how many hours per week he worked. She noted that she was aware of a situation in which the Defendant was ordered to pay child support for a child that was not his. She denied that the Defendant was ever violent toward her, drank alcohol, or used drugs. She stated that her initial reaction to the allegations against the Defendant was that they were not true. She said that the behavior described would be out of character for the Defendant and that she knew the Defendant would never do anything to hurt a child. She stated that even after the proceedings in this case, she did not have any hesitation about her children living with and being around the Defendant.

         Relative to the manner of service of the Defendant's sentence, Ms. Baugh testified that she did not think prison was "the best thing, " that the Defendant was a "decent guy" who cared about his children and his family, and that she did not think the Defendant would "do anything like that to anyone." She did not think it was necessary to place the Defendant on the sex offender registry. She stated that if the Defendant were ordered to register as a sex offender, A.M. could not live with him and would probably have to live with her. She said that the Defendant followed instructions well and that he would abide by the rules of probation.

         On cross-examination, Ms. Baugh testified that a decent person would not send text messages to a fourteen-year-old girl soliciting sex. She did not know if a decent person would have sexual intercourse with a fourteen-year-old girl. She acknowledged that the Defendant admitted to Detective Lockhart that he had sexual intercourse with the victim and that he sent the text messages, although she did not believe the encounters with the victim occurred.

         Upon examination by the trial court, Ms. Baugh testified that the Defendant was raising her children. She said that she would like to obtain joint custody of the children in the future, although she had to "meet certain guidelines" and report to court in Hamilton County before that was possible. She stated that she was not aware of the Defendant's having relationships with children or young women.

         Ms. Baugh testified that she had previously been convicted of forgery and theft of property, that her convictions had nothing to do with her losing custody of her children, and that she placed her children in foster care because she was not taking her medication. She acknowledged that when she met the Defendant, he was in his late thirties. She said that at the time of the sentencing hearing, the Defendant was married, divorce proceedings were pending, and he also had a fiancée. She stated that A.M. and S.R. lived with the Defendant and his fiancée. Ms. Baugh said that she knew some of the Defendant's previous employers and that the Defendant worked in construction, although she did not know for whom he worked at the time of the hearing. She said that in a meeting, the Defendant's attorney told her about an incident in which the Defendant took a "nerve pill" and did not remember certain events that occurred with a child.

         Terri Diederich, the Defendant's fiancée, testified that she lived with the Defendant, A.M., S.R., and her three children. She said that she was a stay-at-home mother, that she did not have family or friends in the area, and that she met the Defendant online. She stated that she and the Defendant had been in a romantic relationship for two years and had cohabitated for one and one-half years. She said that the first time she met the Defendant in person, she was accompanied by her daughter, B.D., who was age twelve at the time of the sentencing hearing. Ms. Diederich stated that she was a widow, that B.D. had never known her father, and that the "connection between my daughter and [the Defendant] ...


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