Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 28, 2017
from the Circuit Court for Stewart County No. 2014-CR-51
Larry J. Wallace, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
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
Ross Dyer, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
ROSS DYER, JUDGE
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. The jury heard testimony that the
defendant picked up the victim, B.E., 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.
AND PROCEDURAL BACKGROUND
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.
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.
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. 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.
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
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, "
The victim: Correct.
Defense Counsel: And then he got up and went and smoked a
The victim: (Nods head).
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
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.
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.
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