Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 17, 2018
from the Criminal Court for Putnam County No. 14-CR-843 David
A. Patterson, Judge
Lewis Sisco, the Defendant, was convicted by a jury of one
count of rape of a child and four counts of rape and was
sentenced to twenty-five years for rape of a child and to
twelve years on each of the rape convictions. The four
twelve-year sentences were ordered to be served concurrently
with each other but consecutively to the twenty-five-year
sentence, for a total effective sentence of thirty-seven
years. On appeal, the Defendant claims that: (1) the trial
court erred in denying the motion to suppress his statement;
(2) the trial court erred in denying his motion for the
recusal of the 13th Judicial District Attorney
General and his staff; (3) the trial court abused its
discretion in sentencing; and (4) there was insufficient
evidence to sustain the convictions. Discerning no error, we
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
P. Fickling, District Public Defender: L. Scott Grissom and
Jennifer Kolstadt, Assistant Public Defenders, Cookeville,
Tennessee, for the appellant, Perry Lewis Sisco.
Herbert H. Slatery III, Attorney General and Reporter; Ruth
Anne Thompson, Senior Counsel; Bryant C. Dunaway, District
Attorney General; and Beth Willis and Bret T. Gunn, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Timothy L. Easter, J.,
L. HOLLOWAY, JR., JUDGE.
and Procedural Background
August 11, 2014, one day before her sixteenth birthday,
disclosed to an assistant principal at Cookeville High School
that her father had been molesting her since she was eight
years old and that her mother was aware of the molestation
and did nothing to prevent it.
October 6, 2014, a Putnam County grand jury issued a
ten-count indictment charging the Defendant with three counts
of rape of a child (Counts 1, 2, and 3) and seven counts of
rape and jointly charging Kathy Ann Sisco ("K.S.'s
mother") with rape in Counts 5, 6, 7, and 8. On May 6,
2016, a grand jury issued a superseding ten-count indictment.
Other than the date of issuance, the only differences between
the original indictment and the superseding indictment were
that K.S.'s mother was charged with rape in Counts 5, 6,
and 7 in the superseding indictment and the dates between
which the offenses were alleged to have occurred. The
superseding indictment for Counts 1, 2, and 3 alleged that
"between August 12, 2006, through August 11, 2011,
" the Defendant "did unlawfully and intentionally
or knowingly sexually penetrate [K.S.] . . . a person less
than thirteen (13) years of age, in violation of T.C.A.
§ 39-13-522[.]" For Counts 4, 5, and 6, the
superseding indictment alleged that "between August 12,
2011, through August 11, 2013, " the Defendant "did
intentionally and knowingly by force or coercion sexually
penetrate [K.S.] in violation of T.C.A. §
39-13-503[.]" For Counts 7, 8, 9, and 10, the
superseding indictment alleged that "between August 12,
2013, through August 31, 2014, " the Defendant "did
intentionally, knowingly, or recklessly sexually penetrate
[K.S.], without her consent and the [D]efendant . . ., knew
or had reason to know that [K.S.], did not consent to said
sexual penetration, in violation of T.C.A. §
Defendant filed a motion to sever his case from his
wife's case, a motion to suppress his statement, a motion
for bond reduction, a motion for in camera
inspection of the record of the Department of Children's
Services (DCS), and a motion for the District Attorney
General's (D.A.'s) Office to be removed from the
prosecution of the case.
19, 2015 Motion Hearing
beginning of the hearing, the trial court granted the motion
for severance and allowed the Defendant and the State full
access to the DCS records. Investigator Terry Hembree of the
D.A.'s Office testified that he met Putnam County
Sheriff's Department (PCSD) Detective Roger Cooper at
Cookeville High School at approximately 6:00 p.m. on August
11, 2014. The Defendant and K.S.'s mother were
already at the school when Investigator Hembree arrived. The
Defendant agreed to go with him to the D.A.'s Office for
an interview. Investigator Hembree explained that he wanted
to conduct the interview at the D.A.'s Office because the
office had an interview room equipped for audio and video
recording. Investigator Hembree advised the Defendant that he
was not under arrest, and he did not handcuff the Defendant.
The Defendant agreed to ride in a patrol car to the
Hembree began the interview at approximately 8:00 p.m. by
obtaining the Defendant's oral consent to be interviewed.
The digital video disc (DVD) of the interview was entered as
Exhibit 2 to the motion hearing. Investigator Hembree then
read aloud the "Advice of Rights/Waiver of Rights"
form, and the Defendant executed a written waiver of his
Miranda rights. According to Investigator Hembree,
the Defendant admitted that he had sexual contact with K.S.
when she was approximately thirteen years of age and that he
had "penile/vaginal penetration and oral sex between the
two of them" approximately twenty times. On
cross-examination, Investigator Hembree agreed that the
Defendant and K.S.'s mother went to the school to look
for their daughter after she did not return home and that
they had been at the school for approximately three hours
when he arrived.
following dialogue from the direct examination of the
Defendant's mother, Barbara Sisco, was the only proof
offered by the Defendant on the motion to disqualify the D.A.
and his staff:
[Trial Counsel:] And are you familiar, w[ith] Mr. E.J.
Mackie, did he at one point in time represent [the Defendant]
in a matter in Cumberland County?
[Barbara Sisco:] I think so.
[Trial Counsel]: So you were familiar that, with regarding
something in DCS, regarding a different daughter of [the
[Barbara Sisco:] Yes, I just, I don't remember that much
about the case.
[Trial Counsel]: But you do believe he retained Mr. E.J.
[Barbara Sisco:] Yes.
At the conclusion of the hearing, the following dialogue
[Trial Court:] Now[, ] I don't know of anything that
causes me to think that the [S]tate should be recused from
the case. I didn't hear definitively that the [D]efendant
was represented by E.J. Mackie and I don't know how the
[S]tate would have difficulty if E.J. Mackie had been
retained in a case having to do with child support or some
civil action, was it, [trial counsel]? Is that what you
[Trial Counsel:] Your Honor, it was something regarding a DCS
[Trial Court:] So what is the argument then that the
[S]tate's attorney should be removed from this case?
[Trial Counsel:] Your Honor, [the Defendant] requested I file
this motion. He does not---
[Trial Court:] Okay. What is the thought process behind it? I
understand that he's asking you to, where are we?
[Trial Counsel:] Your Honor, [the Defendant] just didn't
feel that since Mr. Mackie had been his attorney that he
would have, that their office would have access to maybe
information that he had shared with Mr. Mackie previously and
that he didn't feel comfortable with this particular
District Attorney's Office prosecuting this matter since
Mr. Mackie has been hired onto their staff.
[Trial Court:] Okay. Now I see what you're saying.
[Trial Counsel:] Yes.
[Trial Court:] All right. We had to make that connection.
General, do you see any difficulty?
[State:] No, sir, I've had no connection, no conversation
with Mr. Mackie about this case.
[Trial Court:] And do you plan to do that?
[Trial Court:] And can you keep from having any conversation
with him that would have to do with anything that he would
know with [the Defendant]?
[State:] Yes, sir. I rarely ever see Mr. Mackie.
[Trial Court:] Okay. You've had none with him on this
case, [Mr.] Mackie has had nothing to do to touch the case?
[State:] And General Gunn, who will be trying the case, has
[Trial Court:] Okay. At this time I see no reason for the
[S]tate to be recused from hearing the case, the
[S]tate's attorneys in the 13th Judicial District. I
would suggest to the [S]tate that Mr. Mackie not touch the
case in any way. If you think that would cause some
difficulty with it, put up your Chinese Wall or whatever
it's called and keep Mr. Mackie away from anything that
would happen. Nothing has happened at this point and so that
motion to cause the District Attorney's [O]ffice to be
recused from hearing the case is denied.
conclusion of the hearing, the trial court denied the motion
to suppress, finding that the Defendant voluntarily waived
his rights and provided the statement to the investigator.
The trial court also denied the motion for recusal, finding
no reason for the D.A.'s Office to be recused from the
testified that she was eighteen years of age and a senior in
high school. She said that she had been living in a foster
home for two years. She identified her father, the Defendant,
seated in the courtroom. She said that she lived with her
father and mother on Sheep Bluff Road from the time she was
born until she was removed and placed in foster care. She
said that her brother, who was three years older than her,
also lived there until he turned eighteen. She said that she
lived in two different trailers on Sheep Bluff Road and that
in 2012, when she was thirteen years old, her parents got rid
of the first trailer and bought a new trailer.
identified a spreadsheet with a column containing a cell for
years 2006 through 2016, and corresponding columns containing
cells for her grade in school, her age, and the school she
attended for each year. The spreadsheet also noted the date
of "disclosure" as August 11, 2014. The
spreadsheet, which was admitted as Exhibit 1 and published to
the jury, provided:
OFBIRTH: August 12, 1998
testified that the Defendant "raped [her] from the age
of eight until [she] was released to foster care." She
said that he penetrated her vaginally with his penis and his
fingers, that he penetrated her anally with his penis, and
that they had oral sex. She estimated that he raped her at
least twenty times and that the first rape occurred when she
was eight years old, attending elementary school at Cane
Creek School, and living in the "old trailer." The
Defendant told her to come into his bedroom and lie down on
the bed. K.S. said that she did what he told her to do
"[bec]ause [she] trusted him." She said that the
Defendant covered her face with a towel and removed her
shorts. She asked "what was going on, " and the
Defendant told her "to trust him." He then
penetrated her vaginally with his penis. She said the
incident was painful and that she was crying. She said that
she did not tell anyone because she did not know who to
said that her family moved into a new trailer in 2012 and
that she "believed" she was thirteen years old when
they moved into the new trailer. She described an incident
that occurred in the new trailer in which she was told to
come into her parent's bedroom. She said that her mother
was lying on the bed, and the Defendant was sitting in a
chair. She said that they "asked [her] to lie down with
them." She said that she lay down beside her mother and
that the Defendant got up from the chair, removed his shirt,
and lay down on the other side of her mother. She said that
the Defendant took off her mother's nightgown and had sex
with her mother. She said that the Defendant took her shorts
off and then penetrated her first with his fingers. She said
that she "was asking for them to stop and let me go[,
]" but "he forced her to do the same thing with him
as he was doing to her [mother]." She explained that he
forced her "to have sex with him" and that he
penetrated her vaginally with his penis. She said that she
kept asking him to stop but that he would not. She said that
he told her "[j]ust not to tell anyone, not to say
anything." She said that she believed the incident
involving her mother happened when she was thirteen or
fourteen years of age in middle school.
recalled another incident in which the Defendant told her to
come into his bedroom and sit down on his bed. She said that
he "asked [her] to turn over to lie on [her]
stomach" on the edge of the bed. She stated that the
Defendant removed her shorts and penetrated her anally. She
said that she was crying because it hurt and that she asked
him to stop and to leave her alone. She stated that the
Defendant stopped. She did not tell anyone because she was
scared and because she did not trust her mother.
following dialogue is from the direct examination of K.S.
concerning when the incident described above occurred:
[State:] That incident, [K.S.], where your dad put his penis
in your bottom, where were you attending school at that time?
[K.S.:] I was in the middle school.
[State:] And the chart shows that you were thirteen or
fourteen years old at that time, correct?
K.S. described another occasion when the Defendant came into
her bedroom while she was sleeping. She "remember[ed]
being woken up to him taking [her] bed shorts off and . . .
he continued to take his shorts off. And he told [her] to be
still, lie still as he would use his penis to put into [her]
vagina." The following dialogue from the direct
examination concerned the above incident:
[State:] Did that feel good?
[State:] Did you want it to ...