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State v. Clymer

Court of Criminal Appeals of Tennessee, Nashville

November 9, 2017

STATE OF TENNESSEE
v.
BRANDON LEE CLYMER

          Session May 10, 2017

         Appeal from the Criminal Court for Davidson County No. 2015-A-314 Steve R. Dozier, Judge.

         The Defendant, Brandon Lee Clymer, was convicted of rape of a child by a Davidson County Criminal Court jury. He is serving a twenty-six-year, Range II sentence. On appeal, he contends that: (1) the evidence is insufficient to support his conviction, (2) the trial court erred in admitting evidence of the victim's forensic interview, (3) the trial court erred in admitting the Defendant's pretrial statement without redacting opinions expressed by police officers, (4) the trial court erred in overruling the Defendant's objection to the State's rebuttal closing argument, (5) he is entitled to a new trial due to cumulative trial error, and (6) the trial court imposed an unconstitutional and excessive sentence. We affirm the judgment of the trial court.

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

          Dawn Deaner, District Public Defender; Jeffrey A. Devasher (on appeal), Georgia Simms (at trial), and Kevin Griffith (at trial), Assistant District Public Defenders; for the appellant, Brandon Lee Clymer.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; Chad Butler, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Norma McGee Ogle, J., concurred in the results.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         The Defendant's conviction relates to the December 2013 digital-vaginal penetration of the then-six-year-old victim. The Defendant was a family friend at the time of the offense.

         At the trial, the victim testified that her birthdate was July 25, 2007. She said that two years earlier, in 2014, the Defendant "digged in" her "pee pee." She identified her pee pee as her private area. She said the incident occurred next to the computer in the kitchen of her aunt's house. She said she had been standing and playing games on the computer. She said that she wore a dress and that the Defendant touched her skin. She did not recall how long the incident lasted or how it ended. She said that she told her mother, her aunt, and her uncle what happened. The victim said her mother called the police. The victim did not know if she talked to the police but said she was interviewed by "Ms. Lillie" at the Nashville Children's Alliance. She said that before she came to court, she watched a video recording of her interview.

         The video recording of the victim's January 10, 2014 interview was played for the jury. It reflects the following: The victim lived with her mother, aunt, and two cousins. The victim pointed to parts of her body that were "private places, " and she identified them on a drawing. She identified them as "nipple, " "pee pee, " and "butt." She said "Brandon" touched her pee pee more than once on one date. She said the touchings occurred while she used a computer in the kitchen and while she watched "Panda Bears Christmas." She said that he touched her pee pee on her skin and clothes and that he touched her pee pee inside and outside. When asked how it felt when Brandon touched the inside of her pee pee, the victim stated it felt like "nothing." When asked how it felt when he touched the outside of her pee pee, the victim stated, "It feeled [sic] like he wasn't touching me." The victim stated that the incident at the computer occurred first, that Brandon sat in a chair, that he put one of her legs on a chair as she stood, that Brandon did not speak, that she wore a dress and panties, and that he moved her panties and "started digging in" her pee pee. She said it felt like Brandon was not doing anything. When asked what digging meant, the victim stated, "It means you're digging in the dirt looking for stuff." She said he moved his hand from side to side. When asked if she had said Brandon's fingers went inside her, she said, "Mmm hmm, " and nodded. When shown a drawing and asked if he put his fingers inside the hole, she said he did not. When shown the drawing and asked if he put his fingers "inside the two parts over here, " the victim nodded affirmatively. The victim added that the Defendant touched "the line on your pee pee" and was "swinging that around." She said three people were in the living room and another person was upstairs. The victim said that Brandon stopped when her mother walked in and that her mother did not see anything.

         In the recorded statement, the victim said that the second incident occurred as she and Brandon lay on the bed in the room she and her mother shared. The victim said that others were in the living room and that her brother was in the bedroom lying on the bed with Brandon and her. She said Brandon put her under the covers. The victim said, "He did this, " and made a motion with her hand, but what she demonstrated is not visible on the recording. She made a motion with her hand a second time, the details of which are not visible on the recording, and the interviewer asked if Brandon stuck his hand in the victim's pants. The victim responded by making a motion, which again is not visible on the recording, and stated, "Just like this." When the interviewer asked if the victim meant the back of her pants, the victim nodded. When asked how this felt, the victim responded with a statement that is unintelligible on the recording. The victim said the Defendant did not touch her pee pee and agreed that he touched around the back of her pants. When asked to clarify if she meant he touched around the top part of her pants or her butt, the victim stated he touched her skin at the top part of her pants. She said he did not speak during the incident. The victim stated that Brandon did not do anything to himself and that he remained clothed during the incidents. She said Brandon's actions made her feel "weird." The victim stated that no one other than Brandon had ever touched her inappropriately. The victim stated that after Brandon left, she told her mother what happened and that her mother told other family members. The victim first said the incidents occurred after Christmas but then said she thought it was "about to be Christmas."

         The victim testified that she remembered everything and that her recorded statement was true. She agreed that the statement had been given two years earlier and that she had been six years old when the incident occurred. She agreed the Defendant touched her twice: once when she was at the computer and once when she was upstairs watching "Panda Christmas." She said the incident at the computer occurred first. When asked to reenact how she had demonstrated in the interview that the Defendant had touched her, she said she did not remember. She agreed that she said in the interview that the Defendant touched the outside and the inside of her pee pee. When asked to demonstrate where the Defendant's finger had been relative to "outside" and "inside, " she stated that she could not remember.

         The victim testified that she understood the importance of telling the truth and that she was truthful in her testimony. She identified the Defendant in the courtroom. The victim said that the Defendant was her uncle's friend, that she and her mother lived with her aunt and uncle for one to two months, and that the Defendant visited at their house.

         During cross-examination, defense counsel drew a diagram of the home in which the incidents occurred based upon the victim's descriptions. She agreed that her mother, two grandmothers, an aunt, an uncle, her brother, and two cousins had been at the house on the date of the incidents. The victim said the Defendant's visiting the house was normal.

         The victim agreed that the only time the Defendant touched her pee pee was when she stood at the computer. She agreed that the adults, other than the Defendant, watched a movie in the living room and that she was not home alone with the Defendant when this occurred. She said that she was never home alone with the Defendant that day and that she had never been home alone with him. She agreed that the Defendant touched her skin but that his finger did not go inside the hole on her pee pee. She agreed that her mother walked in the kitchen and that her mother did not see what the Defendant had done to her. She said that the Defendant touched her a second time in the kitchen and that she told her mother after the second time.

         The victim agreed that the Defendant did not touch her pee pee in the bedroom. She agreed that her brother was in the bedroom with the Defendant and her when the Defendant touched her on her back. She said he did not touch her between her legs.

         The victim agreed that she knew it was important to tell her mother what happened. She said at first that she did not think her mother had talked to her about what to do if an adult touched her inappropriately, but she later conceded her mother might have. The victim said that after she told her mother, her mother told her aunt and uncle about what happened. The victim said her aunt talked to her about what happened. She agreed that she heard her whole family discussing the matter and that it was upsetting. The victim said her mother called the police quickly. She did not remember talking to Officer Earle or other officers. She remembered talking to Ms. Lillie, the interviewer on the video recording, but she did not remember talking to Ms. Tamika on the day of the recorded interview or at her school. She agreed that she talked to Ms. Lillie shortly after the incidents and that the incidents occurred when "it was about to be Christmas."

         The victim testified that she did not know whether she had talked to her mother, her uncle, and her aunt after her interview with Ms. Lillie. The victim did not know whether she had seen a doctor or a counselor since the interview. She said she had watched the recording of the interview the previous day in Ms. Tamika's office but said she did not know Ms. Tamika. She agreed that watching the recording helped her remember things.

         The victim's mother testified that she, the victim, and the victim's brother moved to Tennessee in 2013. The victim's mother said they moved into the home of her sister, her sister's husband, and her two nieces.

         The victim's mother identified the Defendant. She said the Defendant and her sister's husband had been best friends in 2013. She described the Defendant as being "like a family member."

         The victim's mother testified that on December 21, 2013, everyone was home and that the Defendant arrived around 11:00 a.m. or noon. She thought he arrived while she and her sister were away from the home running errands. The victim's mother said she and her sister returned around 4:00 to 5:00 p.m. She later said they might have returned around 3:00 p.m. She said she would disagree if a police report said they were only gone from about 1:00 to 1:15 p.m. She did not recall telling a detective that the Defendant had been present when she left and that she asked the Defendant to watch the victim. She said she "would never say that" and stated that her sister's husband watched the children. The victim's mother said that her mother and grandmother arrived while she was away and that they stayed until 6:00 or 7:00 p.m. She said the adults socialized, ate pizza, and watched a movie in the living room, and the children played, ate pizza, and watched a movie upstairs. She said the Defendant and her sister's husband went upstairs to take pizza to the children, that her sister's husband returned first, and that the Defendant did not return for another fifteen to twenty minutes. She said the Defendant was the only adult upstairs during this time. She said that after the Defendant returned, the adults socialized and that the victim came downstairs to use a computer in the kitchen. The victim's mother stated that as she went outside to smoke, the victim asked to speak to her. The victim's mother said that she could tell the matter was serious by the look on the victim's face, that the victim told her the Defendant had touched the victim's pee pee and felt the victim's butt, and that the victim's mother got her sister and had the victim repeat her statement to the victim's mother's sister. The victim's mother said that her sister got her sister's husband, that they had the victim repeat her account to the sister's husband, and that the sister's husband asked the Defendant to leave without giving the Defendant an explanation. The victim's mother said the Defendant left quietly, which was unusual because he was normally argumentative and confrontational. She said that she called the police and that they arrived after the Defendant's departure.

         The victim's mother testified that before December 21, 2013, she had told her children not to talk to strangers and to run away if a stranger tried to talk to them. She said she told them to tell her if someone touched them in a way that made them feel uncomfortable. She agreed that she was a single mother and that she was protective of her children, in part, because she had been sexually abused as a child. She said she had never spoken to her children, either before or after December 21, 2013, about the sexual abuse she suffered.

         The victim's mother testified that she had not seen the Defendant since December 21, 2013. She said this was unusual because until that date, he came to her sister's house daily and that her sister was annoyed by the frequency of his visits.

         The victim's mother testified that a detective came to the house and talked to "us, " although she said the detective did not talk to the victim. The victim's mother said she told the detective that the victim had been sexually abused, although she did not recall if she told the detective about multiple instances of abuse. She was unsure if the victim had revealed the extent of the abuse to her at this point. She did not recall if the police told her family to avoid further contact with the Defendant. The victim's mother said that during the course of the investigation, a succession of detectives was assigned to the case and that she talked to several detectives. She said she spoke with Department of Children's Services (DCS) employee Tamika Drennan but did not recall telling Ms. Drennan that she did not think a medical examination was necessary because the victim had not been penetrated. The victim's mother said the victim met with DCS personnel "[a]t the forensic interview." The victim's mother agreed that the victim had met with the forensic interviewer, the prosecutors, and a victim/witness coordinator and that the victim had been to court "a few times." The victim's mother said the victim had not attended therapy.

         The victim's mother did not recall if she told Detective Mike Bennett that the Defendant had been upstairs alone with the children for about fifteen minutes. She said she met with Ms. Drennan once and did not recall if she told Ms. Drennan that the Defendant had been alone with the children. The victim's mother said she saw the victim and the Defendant in the kitchen together on December 21, 2013. She said she saw the victim straddling the Defendant's knee when the victim and the Defendant were in the kitchen at the computer and did not recall if she reported this to a detective or a DCS employee. The victim's mother said she never had a real opportunity to talk to anyone and said that when she did speak with a detective, they merely asked her questions. She said she thought she had done what she was supposed to do. She agreed that she did not see the Defendant touch the victim's vagina.

         The victim's uncle testified that on December 21, 2013, he lived with his wife and his children. He said that the victim's mother, the victim, and the victim's brother were living with them temporarily and that his mother-in-law and his wife's grandmother were visiting on that date. The victim's uncle did not recall if his brother was at the home on December 21. The victim's uncle identified the Defendant, whom he said was "basically a brother to us." The victim's uncle said his sister and the Defendant's cousin were married. The victim's uncle said that he and the Defendant would "hang out sometimes for days on end" and that on December 21, they were very close. The victim's uncle said that the Defendant and everyone in the victim's uncle's household were close and that they loved and trusted the Defendant.

         The victim's uncle testified that on December 21, 2013, his wife and the victim's mother left for most of the day, returning around 3:00 to 4:00 p.m. He said he and the Defendant "hung out" and played a video game. The victim's uncle said the Defendant was at the house most of the day, and the victim's uncle did not recall if the Defendant had stayed overnight the previous evening. The victim's uncle said that at one point, the Defendant cared for the children when the victim's uncle went to a store. The victim's uncle said that during the early evening, the Defendant had been in the kitchen using the victim's uncle's computer. The victim's uncle said that after his wife and the victim's mother returned, "We were mostly hanging out watching a movie, " and that the Defendant was in the kitchen with the victim "hanging out on the computer." The victim's uncle said the Defendant seemed attached to the children, especially the victim, that evening, which was unusual behavior for the Defendant. The victim's uncle said that he and the Defendant went upstairs together to take pizza to the children. The victim's uncle noted that at another time, the Defendant went upstairs to check on the children and lay in bed and watched a movie with them. The victim's uncle stated that at one point, he was upstairs and saw the Defendant lying in bed with the victim and one of the victim's uncle's daughters. The victim's uncle said that he asked the Defendant when the Defendant was going to come downstairs to socialize with the adults and that the Defendant responded, "I'll be down there in a little while." The victim's uncle said the Defendant returned downstairs at some point.

         The victim's uncle testified that at one point on the evening of December 21, 2013, his wife asked him to come outside. The victim's uncle said the victim's mother told him that the Defendant had touched the victim inappropriately. The victim's uncle said that he went inside, that he heard the bathroom sink running, that he saw the Defendant coming out of a bathroom drying the Defendant's hands on the Defendant's pants, and that the victim's uncle brought the victim outside. The victim's uncle said that he asked the victim what happened and that she told him. The victim's uncle said he returned to the living room and asked the Defendant to leave because they had family business to which they needed to attend. The victim's uncle said the Defendant stated, "[T]hat's okay, I will see you later." The victim's uncle said the Defendant's reaction was unusual because the Defendant could be "nosey." The victim's uncle said that he did not tell the Defendant about the sexual abuse allegations and that the Defendant did not inquire. The victim's uncle said that he had not heard from the Defendant since December 21, 2013, and that this was unusual because they had been close. The victim's uncle identified a photograph of his home, which he agreed was a duplex with his living area being about 1120 square feet.

         The victim's uncle did not recall if he told a detective about the Defendant's unusual attachment to the victim on December 21, 2013. The victim's uncle also did not recall if he told an investigator about seeing the Defendant in bed with the victim.

         The victim's uncle testified that he was "very close" to his sister's husband, who was the Defendant's cousin. The victim's uncle said he called his sister's husband on the night the allegations arose. He agreed that he spoke with a detective and a DCS employee about the allegations. He also agreed that he did not see the Defendant touch the victim.

         Lillie Kennedy, a forensic interviewer and an employee of Nashville Children's Alliance, testified that she interviewed the victim. Ms. Kennedy stated that she had received specialized training to be a neutral party in interviewing children and that she was not a member of law enforcement. She said, however, the Nashville Children's Alliance was a member of the Child Protective Investigation Team (CPIT) and acknowledged that the police department, DCS, and district attorney general's office were involved with CPIT. She said the training she received for conducting forensic interviews was not a method that was typically utilized by law enforcement. She agreed that based upon her interview of the victim, she prepared a report, which she submitted to her supervisor and the other members of CPIT. She acknowledged that on the "forensic interview disclosure information guide" she completed as part of her report, she selected the type of contact the victim reported as "fondling, " not "digital penetration."

         Ms. Kennedy testified that she began an interview of a suspected child sexual abuse victim by building rapport with the child and that she asked neutral questions before transitioning to inquiries about anatomy identification and touch. She said that this typically led to the child making a disclosure and that she asked follow-up questions. She said that she used open-ended questions initially but asked more direct questions to clarify what the child said. She agreed that responses to leading questions could yield less reliable information than open-ended questions and that when she asked more direct questions, she was focused on specific details provided by the child. She said she ended an interview when the child appeared to have given all the information the child had. She said that she typically received a DCS referral and sometimes had a police report before conducting an interview. She thought she had only a DCS referral before she interviewed the victim. Ms. Kennedy stated that she tried to limit conversation with a child's family members to an introduction before an interview. She said that although only she and a child were in a room during an interview, other members of CPIT observed the interview. She said a child's friends and relatives were not allowed to participate. She said that forensic interviews were recorded in order to avoid the child's having to discuss the allegations repeatedly and that the child's family was not given a copy of the recording.

         Ms. Kennedy testified that she had conducted approximately 677 forensic interviews in her career. She said she had an undergraduate degree in communication studies and a minor in psychology. She attended twelve hours of continuing education annually, and in the previous year, she attended an additional symposium. She said that when she interviewed the victim in 2014, she had been in Nashville for two months. She said that before she began working in Nashville, she had worked for one and one-half years as a part-time forensic interviewer in Dickson County, although she had other employment between the Dickson County job and the Nashville job.

         A portion of the victim's recorded interview was played. Ms. Kennedy testified with regard to a drawing seen in the recording on which the victim circled body parts and that Ms. Kennedy labeled them with the names the victim used for the parts. Ms. Kennedy agreed that when she discussed the drawing with the victim, she asked the victim if the Defendant's finger "went inside her hole" and that the victim said, "no." Ms. Kennedy thought that the victim had said the Defendant's finger went inside "the line" and that Ms. Kennedy had asked if the victim meant inside the "two parts." Ms. Kennedy said that Ms. Kennedy had referred to a line on the drawing representing the vaginal lips.

         Metro Nashville Police Detective Elizabeth Mills testified that she was assigned to the Defendant's case, although two other detectives had handled the case before her. She said that she and Detective Nathan Smith located the Defendant at a relative's house and interviewed the Defendant. An audio recording of the August 1, 2014 interview was played for the jury. In the interview, the Defendant stated the following: He was aware the victim's mother had called the police because the victim said the Defendant touched the victim. He first heard about the allegations in January of an unspecified year. Someone left a handwritten message at the Defendant's grandfather's house, but the Defendant did not call the number in the message. The Defendant knew the victim's mother from going to his "cousin-in-law's house and hanging out." The Defendant said he had been left alone a few times with the victim and the cousin-in-law's children. He said he was not a sexual predator and that he had been upset and thought the allegations were offensive. He recalled an occasion on which he was at his cousin-in-law's house and had been drinking and watching a movie, although he could not recall the date. He thought that at some point, he had been upstairs on the bed watching a movie with the victim and another child. He said that his cousin-in-law asked him to leave, that he heard arguments in the back of the house, that arguments were not unusual in the house, and that he did not "think anything of it." He said he had no indication why he was asked to leave. He said that about one month later, he mentioned to "Josh" that the police had looked for the Defendant at his place of employment. He then learned about the victim's allegations. The Defendant did not know why the victim would make the allegations and said that if he had touched the victim's vaginal area, it had to have been accidental. He said, "Obviously something happened that was misconstrued." He said the victim sometimes straddled his knee and that when he was tired of having her sit there but she did not want to move, he would "unclench her." He said the victim was a "huggy, touchy child" who liked to be around people. He said that he might have picked up the victim and touched her between her legs but that he was merely playing with the victim. He said he had spent the night at the house where the victim lived but that he had never dressed any of the children who lived there.

         Detective Mills testified that the Defendant had been nervous and defensive during the interview. She said that she did not collect rape kit evidence due to the passage of time between the offense and her taking over the case. She noted, as well, that at the time of the offense, "touch DNA" evidence was not widely known and used. She agreed that the Defendant never admitted he had intentionally touched the victim.

         Metro Nashville Police Officer Adam Earle was called as a defense witness and testified that based upon police records, he was dispatched on the evening of December 21, 2013, to an address that other evidence showed was the victim's residence. He had no independent recollection of the call. Based upon his report, however, he testified that he spoke with the victim's mother. He said that he did not speak to the victim and that standard operating procedure provided that he not speak to child witnesses. He said it was possible that adults other than the victim's mother had been present and that they may have provided information. Based upon the report, he stated that the victim's mother told him she had left the Defendant at the house briefly while she was away from about 1:00 to 1:15 p.m. Officer Earle did not think the victim's mother identified any other individuals she left in the Defendant's care. Officer Earle agreed that the victim's mother reported the victim's having stated after the victim's mother returned home that the Defendant had moved the victim's panties and touched the victim. Officer Earle said that if the victim's mother had stated that more than one incident occurred, he would have noted it in his report. He said that if the victim's mother had said the Defendant and the victim had been alone more than once, Officer Earle would have noted it in his report. He said he had classified the incident as "forcible fondling" but did not know if he had changed the classification at some point. Officer Earle said that his role had been to take a report and that follow-up would be done by detectives at a later date. He said he arrived at the residence at approximately 8:19 p.m. and that he completed the report at approximately 11:32 p.m. He said he might have been involved with other calls between the call at the victim's house and his completing the report. He acknowledged the possibility that he had received information that was not reflected in his report and agreed that his narrative in the report consisted of four sentences.

         After receiving the evidence, the jury found the Defendant guilty of rape of a child. This appeal followed.

         I

         Sufficiency of the Evidence

         The Defendant contends that the evidence is insufficient to support his conviction because the State failed to show the element of penetration. The State responds that the proof is sufficient. We agree with the State.

         In determining the sufficiency of the evidence, the standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The State is "afforded the strongest legitimate view of the evidence and all reasonable inferences" from that evidence. Vasques, 221 S.W.3d at 521. The appellate courts do not "reweigh or reevaluate the evidence, " and questions regarding "the credibility of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier of fact." State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

         "A crime may be established by direct evidence, circumstantial evidence, or a combination of the two." State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). "The standard of review 'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

         Rape of a child is defined as "the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is more than three (3) years of age but less than thirteen (13) years of age." T.C.A. § 39-13-522(a) (2014). Sexual penetration is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required[.]" T.C.A. § 39-13-501(7) (2014). Our supreme court has held that it is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient." State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001) (quoting Hart v. State, 21 S.W.3d 901, 905 (Tenn. 2000)).

         Viewed in the light most favorable to the State, the evidence reflects that the victim testified about an incident when she used the computer in her aunt's kitchen and the Defendant "digged in" her "pee pee, " which she identified as her private area. In the forensic interview, the victim explained relative to the term digging, "It means you're digging in the dirt looking for stuff." She also stated in the forensic interview that the Defendant's fingers had gone inside her but had not gone in the "hole" and that he moved his hand from side to side. When the victim was shown the drawing by the forensic interviewer and asked if he put his fingers "inside the two parts over here, " the victim nodded affirmatively. The victim also told the forensic interviewer that the Defendant touched "the line on your pee pee" and was "swinging that around."

         The Defendant argues that the State failed to prove the penetration element of rape of a child because the victim told the forensic interviewer that the Defendant's finger did not go inside her, that she could not recall at the trial whether his finger went inside her, and that both the forensic interviewer and Officer Earle categorized the incident reported to them as involving "fondling." As we have noted, the victim stated that the Defendant touched her private area but that his finger did not go inside her "hole." Her description of his having put his fingers inside the two parts, touching the line on her pee pee and swinging it around, "digging, " and moving his hand from side to side, combined with the drawing utilized in the forensic interview which was received as a trial exhibit, established penetration, in the legal sense, of the victim's vulva or labia. See id. The evidence is sufficient, and the Defendant is not entitled to relief on this basis.

         II

         Admission of Evidence of the Victim's Forensic Interview

         The Defendant contends that the trial court erred in admitting evidence of the victim's forensic interview because Ms. Kennedy, who conducted the interview, was not a qualified forensic interviewer pursuant to Tennessee Code Annotated section 24-7-123(b)(3) because her work experience did not fulfill the statutory criteria. The State counters that the court did not err in admitting the evidence because Ms. Kennedy was a qualified forensic interviewer pursuant to the statutory criteria and that, in any event, any error in the admission of the forensic interview was harmless in view of the victim's testimony about the offense. We conclude that the trial court did not abuse its discretion in admitting the recorded forensic interview.

         Evidence is relevant and generally admissible when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401, 402. Questions regarding the admissibility and relevancy of evidence lies within the discretion of the trial court, and the appellate courts will not "interfere with the exercise of that discretion unless a clear abuse appears on the face of the record." State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)); see State v. Justin Tyler, No. W2015-00161-CCA-R3-CD, 2016 WL ...


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