State v. Schiefelbein

• Citation: 230 S.W.3d 88
• Decision Date: 08 February 2007
• Docket Number: No. M2005-02370-CCA-R10-CO.,No. M2005-00166-CCA-R3-CD.,M2005-00166-CCA-R3-CD.,M2005-02370-CCA-R10-CO.
• Parties: STATE of Tennessee v. Mark A. SCHIEFELBEIN.
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

230 S.W.3d 88

STATE of Tennessee v. Mark A. SCHIEFELBEIN.

No. M2005-00166-CCA-R3-CD.

No. M2005-02370-CCA-R10-CO.

Court of Criminal Appeals of Tennessee, at Nashville.

February 14, 2006 Session.

February 8, 2007.

Order on Rehearing March 7, 2007.

Application for Permission to Appeal Denied by Supreme Court June 18, 2007.

David L. Raybin, Nashville, Tennessee (on motion for new trial and on appeal); and Patrick Johnson, Nashville, Tennessee (at trial), for the Appellant, Mark A. Schiefelbein.

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the Appellee, State of Tennessee.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER, J., joined. GARY W. WADE, P.J., not participating.

OPINION

A Williamson County Circuit Court jury convicted the defendant, Mark A. Schiefelbein, of seven counts of aggravated sexual battery and one count of especially aggravated sexual exploitation of a minor. The trial court imposed a 12-year sentence for each conviction and ordered consecutive service, thereby yielding an effective sentence of 96 years. Aggrieved of the convictions and sentences, the defendant appeals and raises the following issues: (1) the trial court erred by failing to require the State to furnish discovery materials to the defendant; (2) the trial court committed reversible error by configuring court-room seating to shield the public from viewing certain exhibits; (3) the trial court improperly instructed the jury, sua sponte, to disregard certain truthful testimony of the defendant; (4) the trial court's repeated questioning of State's witnesses created an appearance of judicial bias and improperly bolstered the State's case; (5) the trial court committed reversible error in excluding defense-proffered medical testimony that a physical examination of the victim rebutted the occurrence of sexual penetration, contact, or injury; (6) the trial court permitted the introduction of inadmissible and highly prejudicial hearsay and opinion testimony; (7) the trial court erroneously permitted the State to examine the defendant about his knowledge that a "voice stress analysis" could detect stress in an individual's voice; (8) the trial court erroneously instructed the jury that the defendant could be guilty of aggravated sexual battery if he acted intentionally, knowingly, or "recklessly"; (9) the trial court erroneously instructed the jury that the State could prove the mental state for aggravated sexual battery in the disjunctive by showing that the defendant acted intentionally, knowingly, "or" recklessly; (10) the trial judge should be disqualified from further involvement in the case; and (11) the defendant's effective sentence is excessive, illegal, and unconstitutional. As an adjunct to the issues raised on direct appeal, the defendant also pursues Appellate Procedure Rule 10 interlocutory review to bar future prosecution of three related child-rape charges that were severed, over his objection, from trial of the aggravated sexual battery and especially aggravated sexual exploitation of a minor offenses. After thorough review of the record and careful consideration of the parties briefs, their oral arguments, and the applicable law, we hold that none of the errors require reversal of the defendant's convictions for aggravated sexual battery or for aggravated sexual exploitation of a minor. However, we hold that the incarcerative 96-years' sentence is inconsistent with the purposes and principles of sentencing and does not provide a fair sense of predictability of the criminal law and its sanctions; therefore, we modify the defendant's effective sentence from 96 years to 36 years. We order that the trial judge who presided at trial is disqualified from conducting any further proceedings in this cause. Finally, we dismiss the child-rape offenses, as improperly severed, and hold that further prosecution on such charges is barred by principles of double jeopardy.¹

On November 12, 2002, the Williamson County Grand Jury indicted the defendant on three counts of child rape, see T.C.A.² § 39-13-522 (2006) ("Rape of a child is the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age."), seven counts of aggravated sexual battery, see id. § 39-13-504(a)(4) ("Aggravated sexual battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances: . . . (4) The victim is less than thirteen (13) years of age."), and one count of especially aggravated sexual exploitation of a minor,³ see id. § 39-17-1005 ("It is unlawful for a person to knowingly promote, employ, use, assist, transport or permit a minor to participate in the performance or in the production of material which includes the minor engaging in: (1) Sexual activity; or (2) Simulated sexual activity that is patently offensive."). All charged offenses involved the same victim.

On July 7, 2003, the first day of trial, the State moved to sever the three child rape counts. The trial court granted the motion, over defense objection, and five days later, the jury convicted the defendant of the remaining charges. Following the sentencing hearing, the trial court sentenced the defendant to an effective incarcerative sentence of 96 years. The defendant filed a timely notice of appeal.

Viewed in the light most favorable to the State, the proof at trial showed that B.R.,⁴ born June 15, 1990, practiced gymnastics at Let It Shine Gymnastics in Franklin, Tennessee, where she was coached by the defendant. When the defendant opened his own gymnasium, Esprit Gymnastics,⁵ in late 2000, B.R. and five other female students left Let It Shine Gymnastics to continue under the defendant's tutelage. The defendant referred to these 6 students as his "six pack."

B.R. testified that she was the defendant's "favorite" student, and he developed a close social relationship with B.R.'s family. He regularly joined them for dinner, movies, hockey games, holidays, and church services. The defendant received Christmas and birthday presents from the victim's family, and he bought presents for B.R., her mother, and her younger sister. B.R. testified that she had received other gifts from the defendant, and her fellow students "start[ed] not liking [her] and it made [her] sad."

During the summer of 2001, B.R. practiced gymnastics five days a week, and the following school year, she practiced four days a week. Typically, B.R. would wake at 6:15 a.m., and she would attend school from 8:30 a.m. until 3:15 p.m. Afterwards, she would practice gymnastics for approximately five hours, until approximately 9:00 p.m. when she would go home, complete her homework, and retire to sleep at 11:00 p.m.

The State's evidence showed that all of the charged offenses occurred during B.R.'s practice sessions at the gymnasium between the summer of 2001 and September of 2002. Evidence described Esprit Gymnastics's gymnasium and office layouts. The victim testified that the defendant touched her vagina while she was stretching on the "regular" floor⁶ and on the rod floor, and he touched her breasts and made her touch his penis while they were in his office. B.R. explained that the majority of the touching took place on the rod floor. The rod floor is approximately one foot higher than the concrete regular floor, and carpet separates it from the concrete. B.R. said, "[I]t's . . . a strip of floor[,] and it is very bouncy and easier to tumble on." B.R. and other State witnesses testified that a cabinet stood in an opening in the office wall.⁷ From the parent-viewing area, individuals could see into the office through this opening if they leaned over the cabinet. The office also had a door.

B.R. stated that six to seven other students were present without their parents when the defendant touched her. The defendant stretched the students in a certain order, and he stretched them behind a purple and white mat. In the beginning, the defendant stretched B.R. first, but then he started stretching her last. She explained that on some occasions, he would stretch her twice, before and after the other students. She stated that the defendant would touch her after he stretched the other students and while the other students performed exercises on the bars and the trampolines.

B.R. recounted that the defendant first touched her vagina, over her leotard, while she was doing a frog stretch.⁸ He pressed his hand onto her buttocks during the stretch and placed his fingers between her legs, onto her vagina. B.R. gave various estimates of the number of times she was touched. At trial she testified that the defendant touched her in this fashion over her leotard eight to 10 times. B.R. also stated that he touched her under her leotard during this stretch "a bunch of times." She recalled telling Brentwood Police Department Detective Adrian Breedlove, the case's lead detective, that the defendant had touched her vagina under her leotard approximately 30 times. She explained at trial that she was "distraught" during the interview with Detective Breedlove, and the defendant touched her under her leotard 15 to 17 times.

The defendant also touched B.R.'s vagina and had her pull aside her leotard during the straddle stretch⁹ while she was training for level seven¹⁰ competitions. She testified that the defendant told her that he needed to see her vagina so he would know where not to touch her. B.R. complied because the defendant "gets really mad very easily." After she would pull her leotard aside, he then asked to touch her vagina to determine how it felt, so he would not touch her again. B.R. stated that she allowed him to touch her "[b]ecause he would get angry and [she] was his...