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State v. Earhart

Court of Criminal Appeals of Tennessee, Nashville

February 27, 2018


          Assigned on Briefs November 28, 2017

         Appeal from the Circuit Court for Stewart County No. 2014-CR-51 Larry J. Wallace, Judge

         A Stewart County jury convicted the defendant, Toby Shane Earhart, of two counts of child abuse. On appeal, the defendant contends there was insufficient evidence to support the jury's verdict; the trial court erred by admitting a videotaped forensic interview of the victim; the trial court erred by excluding the defendant's expert witness; and the trial court erred when imposing consecutive sentences. Based upon our thorough review of the record, we agree the trial court erred when admitting the forensic interview; however, this error was harmless. Additionally, we conclude the evidence was sufficient to support the jury's verdict, the trial court did not abuse its discretion when excluding the defendant's expert witness, and the trial court properly ordered consecutive sentences. We affirm the judgments of the trial court.

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

          Elizabeth A. Fendley, Clarksville, Tennessee, for the appellant, Toby Shane Earhart.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ray Crouch, District Attorney General; and Sarah Wojnarowski and Brooke Orgain, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.


          J. ROSS DYER, JUDGE

         This appeal arises as a result of the defendant's abuse of the twelve-year-old victim. The defendant was charged with one count of rape of a child and one count of aggravated sexual battery due to events occurring on October 26, 2011.[1] The jury heard testimony that the defendant picked up the victim, B.E.[2], from school on October 26, 2011. Upon taking the victim home, the defendant proceeded to sexually abuse her. The jury convicted the defendant of two counts of the lesser-included offense of child abuse for which he received consecutive sentences of eleven months and twenty-nine days on each count.


         I. Pretrial Hearings

         Prior to trial, the defendant challenged the admissibility of a videotaped forensic interview conducted with the victim. The defendant argued the video was inadmissible because the interviewer, Ms. Stringfield-Davis, did not meet the requirements of Tennessee Code Annotated section 24-7-123. While possessing all the necessary training, Ms. Stringfield-Davis's degree was in business, a degree not listed under the requirements for a forensic interviewer. Furthermore, the defendant argued the tape was incomplete because the camera lost power near the conclusion of the interview. The trial court denied the defendant's motion and allowed the tape to be played at trial. The trial court ruled, based on extensive interviews, the information discussed after the camera stopped recording was ultimately cumulative and contained no exculpatory information. The trial court also noted Ms. Stringfield-Davis's qualifications were sufficient to satisfy the statute.

         Additionally, the State moved to exclude the defendant's expert witness, Dr. B. Charles Ihrig. Dr. Ihrig would have testified to the errors in the interview and the unreliability of child witnesses. Based upon applicable case law and his conclusion that Dr. Ihrig's testimony would "invade the province of the jury and would not substantially assist the jury, " the trial court granted the State's motion.

         II. Trial

         The victim was born on February 18, 1999, and was twelve years old at the time of the abuse. Her parents were divorced, and in October 2011, she was living with the defendant and her stepmother, K.E.[3] The victim identified the defendant at trial and testified she was present in court because the defendant "raped" her. She testified the defendant unexpectedly took her out of school early on October 26 claiming she had a doctor's appointment; however, she had no doctor's appointments that day. When further questioned about the reason the defendant checked her out of school that day, the victim responded, "[h]e took me out of school to molest me." The victim also testified the defendant told her that he learned about sex from his parents and that he would do the same for her.

         After bringing the victim home from school, the defendant removed a condom from a drawer and made her place the condom over his penis. After the victim placed the condom on the defendant, he took her to the bedroom where he proceeded to abuse her. The victim admitted her memory of the incident was not perfect, as she was trying to "block it out, " but was able to testify to the specific clothing she was wearing when the incident took place. When describing the abuse, the victim testified as follows:

Defense Counsel: Okay. When you described -- all you said was "[the defendant] put [his penis] in me and then you said it just felt like something was in [your vagina];" is that right?
The victim: That's what I said.
Defense Counsel: Okay. And you didn't know whether his [penis] was hard or soft and you said, "I don't know exactly how it felt. I just tried to block it out, " right?
The victim: Correct.
Defense Counsel: And then he got up and went and smoked a cigarette?
The victim: (Nods head).

         The victim stated that after the abuse, but prior to smoking the cigarette, the defendant cleaned himself up with a towel. Finally, the victim confirmed she had been unable to use tampons because they were too uncomfortable. After reporting the abuse to her mother, the victim was interviewed as part of the investigation. A videotaped forensic interview was conducted by Ms. Stringfield-Davis. The forensic interview added additional details to the victim's account and was played for the jury after the victim's initial direct examination.

         During the forensic interview, the victim's testimony was similar to that rendered in court. She added further details, such as the subjects she had been studying in school the day at issue. She also added that prior to making her put the condom on his penis the defendant watched a pornographic movie in her presence, and he stripped her naked before removing his own clothes. The victim stated the defendant penetrated her vagina, but she was unable to give any details as to whether the defendant's penis was turgid or flaccid or whether he ejaculated. Towards the end of the interview, the tape ended abruptly because the camera lost power.

         The victim testified that the defendant told her not to tell anyone about the incident; however, she decided to tell her mother and sister about a month later. This initiated the investigation. The victim noted she struggled with the defendant's actions and continued to undergo counseling to cope with the event.

         The jury also heard testimony from Denise Alexander, a social worker for Our Kids Clinic in Middle Tennessee. Ms. Alexander also conducted an interview with the victim. When Ms. Alexander asked the victim why she was there, the victim told her ...

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