Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs May 30, 2019
from the Criminal Court for Sullivan County No. S65,419 James
F. Goodwin, Jr., Judge
Defendant, Wayne Leonard Yelton, appeals his convictions of
rape of a child, three counts of aggravated sexual battery,
incest, and attempted incest and his effective sentence of
forty-one years. On appeal, the Defendant asserts that the
evidence is insufficient to support his convictions and that
his sentence is excessive. Upon reviewing the record and the
applicable law, we affirm the trial court's judgments.
However, we remand to the trial court for entry of corrected
judgments to reflect that the trial court imposed an
eleven-year sentence for each aggravated sexual battery
conviction in counts three and four and a three-year sentence
for the attempted incest conviction in count five.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed; Case Remanded
J. Gibbons, District Public Defender, and Lesley A. Tiller,
Assistant Public Defender (on appeal), and Kyle Vaughan,
Kingsport, Tennessee (at trial), for the appellant, Wayne
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Barry P.
Staubus, District Attorney General; and William Harper and
Emily Smith, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Everett Williams, P.J., delivered the opinion of the court,
in which Robert W. Wedemeyer and Robert L. Holloway, Jr.,
EVERETT WILLIAMS, PRESIDING JUDGE
AND PROCEDURAL BACKGROUND
Defendant was indicted on two counts each of rape of a child,
aggravated sexual battery, and incest as a result of sexually
abusing his eight-year-old granddaughter on two separate
occasions in 2015. The victim, who was ten years old at the
time of the trial, testified that when she was eight years
old, she visited her grandparents often and spent the night
at their home. On July 29, 2015, she and the Defendant were
in his bedroom watching television when the Defendant closed
the bedroom door and instructed the victim to remove her
clothes. The victim removed all of her clothing, including
her underwear. The victim testified that the Defendant
touched her breasts and buttocks. She stated that the
Defendant touched her "biscuit" and put his finger
inside her and that "it kind of tickled."
victim said the Defendant was acting "different"
and "had a different look on his face." He warned
the victim that if she told anyone, "something bad"
would happen to her mother. The Defendant's wife, who was
also the victim's grandmother, walked into the room and
caught the Defendant. She instructed the victim to put on her
clothes and go into the living room. The Defendant's wife
closed the bedroom door, and the victim could hear her and
the Defendant talking but did not understand them.
victim testified to another instance of sexual abuse by the
Defendant that occurred "[m]aybe a month or so"
before July 2015 before she was out of school for the summer.
She stated that while she was in the Defendant's bedroom,
he touched her on the "same spots." She did not
recall whether the Defendant put his hand inside her but said
he "moved his finger around."
cross-examination, the victim agreed that the first instance
occurred before school let out for the summer, and she
believed it may have occurred in May or June of 2015. She
agreed that when she said the Defendant moved his finger
around, she meant that his finger was inside of her. She
first reported the abuse to her mother on July 29th while at
the Defendant's home.
the Defendant's wife found the victim and the Defendant
in the bedroom on July 29th, the Defendant grabbed a gun and
threatened to kill himself. Officer Roger Antone of the
Sullivan County Sheriff's Office went to the
Defendant's apartment in response to a call regarding an
attempted suicide. Another officer secured the
gun prior to Officer Antone's arrival. Officer Antone
testified that when he asked the Defendant why he wanted to
commit suicide, the Defendant replied that "he did a bad
thing, [that] he will not be forgiven[,] and that he should
have shot [himself] when he had the chance." Officer
Antone attempted to speak to the Defendant further, but
"communication stopped at that point." Detective
Tracy Haraz with the Sullivan County Sheriff's Office
spoke to the Defendant's wife, who refused to cooperate
or give a statement.
Defendant was transported to a hospital for an evaluation.
Officer Antone stated that the victim was present at the
apartment and that a child abuse investigation commenced once
her parents arrived. On cross-examination, Officer Antone
testified that the Defendant never said he was "accused
of doing a bad thing" and never stated what the
"bad thing" was.
victim's mother testified at trial and acknowledged that
she had a prior misdemeanor conviction for the unauthorized
use of a motor vehicle. She stated that in July 2015, the
victim often spent time with the Defendant and his wife at
their apartment, and the victim had a good relationship with
the Defendant. The victim was often there with her brothers,
but her brothers did not accompany her on July 29th.
victim's mother testified that on July 29th, she and her
husband went to the Defendant's apartment after she was
notified of the Defendant's threat of suicide. Police
officers were there when she arrived. She walked into the
apartment where she saw the victim crying while with the
Defendant's wife. The victim's mother asked the
wife what had occurred. The victim started to speak to her
mother but stopped, and the Defendant's wife instructed
the victim's mother to take the victim into the bedroom.
Once they were in the bedroom, the victim told her mother
information that led her mother to speak to the police. The
victim's mother told the Defendant's wife what the
victim had stated, and the Defendant's wife became
"upset." Prior to July 29th, the victim's
mother was unaware of any abuse against the victim by the
Defendant. On cross-examination, the victim's mother
acknowledged "issues" between her husband and the
Defendant and stated that the source of the
"issues" was financial.
Karen Fleenor, a licensed clinical social worker at Wellmont
Rescue Pavillion in Bristol, Virginia, was assigned to the
Defendant's case on July 31st following his threat of
suicide. The Defendant admitted to Ms. Fleenor that he had
touched the victim and fondled her breasts. He stated that he
and the victim were lying on a bed and watching television
when the victim disrobed and the contact occurred. Ms.
Fleenor reported the Defendant's statements to social
services by calling the child abuse hotline. She stated that
she had a mandatory duty to report child abuse and that she
advised the Defendant that she would be reporting it. On
cross-examination, Ms. Fleenor testified that she did not
recall the Defendant ...