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State v. Klein

Court of Criminal Appeals of Tennessee, Nashville

September 6, 2017

STATE OF TENNESSEE
v.
RAYMOND ARTHUR KLEIN

          Assigned on Briefs August 8, 2017

         Appeal from the Circuit Court for Montgomery County No. 41201121 William R. Goodman, III, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Jacob 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.

          J. Ross Dyer, J., delivered the opinion of the court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         A. Trial

         On June 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 abuse.[1]

         M.K., the victim's mother and the defendant's former wife, initiated the investigation of the defendant after the victim disclosed the abuse.[2] 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.

         M.K. 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 being abused.

         M.K. 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.

         On 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 marriage.

         Additionally, 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 ...

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