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State v. Yelton

Court of Criminal Appeals of Tennessee, Knoxville

June 13, 2019

STATE OF TENNESSEE
v.
WAYNE LEONARD YELTON

          Assigned on Briefs May 30, 2019

          Appeal from the Criminal Court for Sullivan County No. S65,419 James F. Goodwin, Jr., Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed; Case Remanded

          Andrew 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 Leonard Yelton.

          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.

          John Everett Williams, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE

         FACTUAL AND PROCEDURAL BACKGROUND

         The 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."

         The 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.

         The 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."

         On 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.

         After 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

         Defendant's 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.

         The 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.

         The 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.

         The 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

         Defendant's 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.

         Ms. 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 ...


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