Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 8, 2017
from the Circuit Court for Montgomery County No. 41201121
William R. Goodman, III, Judge
defendant, Raymond Arthur Klein, appeals his convictions and
sentences for aggravated sexual battery and criminal attempt
to commit rape of a child. The defendant argues there is
insufficient evidence to support the jury's verdict.
Additionally, the defendant argues a violation of his Sixth
Amendment right to confront the witnesses against him because
he was not permitted to introduce the results of a polygraph
examination from a prior investigation. Finally, the
defendant argues his sentence was improperly ordered to be
served consecutively to a prior sexual battery conviction.
Following our review, we affirm the judgments and sentence of
the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
W. Fendley, Clarksville, Tennessee, for the appellant,
Raymond Arthur Klein.
Herbert H. Slatery III, Attorney General and Reporter; Leslie
E. Price, Assistant Attorney General; John W Carney, District
Attorney General; and David H. Findley, Assistant District
Attorney General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
ROSS DYER, JUDGE
12, 2012, a Montgomery County grand jury indicted the
defendant for three counts of sexual exploitation of a minor,
one count of rape of a child, and one count of aggravated
sexual battery. The State ultimately dismissed the three
sexual exploitation counts, and the defendant went to trial
on the rape of a child and aggravated sexual battery charges.
The victim in this case, A.K., is the defendant's
daughter and was six years old at the time of the
the victim's mother and the defendant's former wife,
initiated the investigation of the defendant after the victim
disclosed the abuse. M.K. stated that in December of 2010, she
and the defendant were in the process of getting a divorce,
despite still residing in the same house. M.K. indicated a
desire to return to New York once the divorce was finalized.
She stated that prior to the accusation the defendant was
likely to receive custody of the victim for 100 days out of
the year as part of the proposed parenting plan.
testified that the victim had diaper rash problems when she
was younger, which necessitated applying lotion to the
victim's vaginal areas. At one point the defendant had
informed M.K. that the victim had placed his hand on her
vaginal area because she was "itchy." The defendant
at this point expressed concern to M.K. that the victim was
also stated she would often see the defendant and the victim
under the bed covers together watching cartoons. She did not
see this as a concern because, "[it] was [the
victim's] father." M.K. indicated that in December
2010 the victim told her the defendant had been abusing her.
M.K. contacted the police and confronted the defendant. When
asked by M.K. "Why [the defendant] had done it, "
the defendant asked "When?" M.K. testified that she
had not instructed the victim to fabricate the allegations or
the facts surrounding them.
cross-examination, M.K. was asked about the contentious
nature of the divorce. M.K. responded that her marriage to
the defendant was not stable and that they had separated
"a few times" throughout the course of the
M.K. was questioned about a prior allegation of abuse against
the defendant concerning the victim. M.K. testified that
after this prior allegation surfaced, she contacted the
Department of Child Services ("DCS"). In response,
DCS began an investigation, and, as part of this
investigation, the defendant was given a polygraph
examination. The polygraph results did not indicate the
defendant had abused the victim, and DCS concluded the
allegations were unfounded. While M.K. was being questioned
about the DCS investigation on cross-examination, the
following exchange took place:
Defense counsel: Okay. And DCS investigated this?
Victim's mother: Yes. They did
Defense counsel: [The defendant] took a polygraph examination
and passed it?
Prosecution: Objection, your Honor
Trial court: Sustained
Defense counsel: Well, Judge, I'm just trying to get why
she stayed with him.
Trial court: Alright. Just Ask. Sustained.
Defense counsel: And you decided to stay with him after DCS
did their ...