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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
June 20, 2006 Session STATE OF TENNESSEE v. LEROY SEXTON
Direct Appeal from the Criminal Court for Fentress County No. 7977 Shayne Sexton, Judge

No. M2004-03076-CCA-R3-CD - Filed January 12, 2007

Following a jury trial, Defendant, Leroy Sexton, was convicted of rape of a child and was sentenced to serve twenty-five years confinement in the Department of Correction. Defendant subsequently filed a motion for new trial which was denied by the trial court. He now appeals arguing that he is entitled to a new trial because (1) he received ineffective assistance of counsel at trial, and (2) the trial court committed reversible error by allowing the prosecutor to make improper statements during closing argument. After a thorough review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA MCGEE OGLE, JJ., joined. Mark E. Blakely, Huntsville, Tennessee; (on appeal), John E. Appman, Jamestown, Tennessee, (at trial), for the appellant, Leroy Sexton. Robert E. Cooper, Jr., Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General, William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District Attorney General, for the appellee, the State of Tennessee. OPINION I. Background The minor victim, T.C., will be referred to by his initials. Gerthie Faye and Willard Crabtree lived with their son, Timmy Crabtree, and their grandson, T.C. Ms. Crabtree testified that T.C. was born on May 15, 1995, and was five years old at the time of the incident. Ms. Crabtree said that Defendant and her daughter, Christy Sexton, visited the family on June 28, 2000. During the afternoon, Defendant, with T.C. as an observer, engaged in shooting a pellet gun at a tree while the rest of the family sat on the front porch. T.C. returned to the front porch at some point and asked Willard Crabtree for a knife so that Defendant could pick out some of the pellets that were stuck in

the tree. Ms. Crabtree said that she next heard her son, Timmy, yelling, and Williard Crabtree and Ms. Sexton went to investigate. Ms. Crabtree said that she later accompanied T.C. and Timmy Crabtree to the Fentress County Sheriff's Department. Ms. Crabtree said that T.C. told her that Defendant had put his "pee-pee" in T.C.'s mouth. Ms. Crabtree said that Timmy Crabtree had been home all day and that to her knowledge, he was not under the influence of drugs or alcohol on the afternoon of the incident. Timmy Crabtree testified that he looked towards the backyard during the afternoon of June 28, 2000, and saw Defendant standing by an outbuilding with his back turned toward Mr. Crabtree. Mr. Crabtree walked around the side of the building and saw Defendant standing in front of T.C. with his penis in T.C.'s mouth. Defendant had his hand on T.C.'s left shoulder. Mr. Crabtree said that he and Defendant had an altercation as a result of the incident. Mr. Crabtree acknowledged that he was on probation at the time of the trial, and that he had various prior convictions for forgery, driving under the influence, public drunkenness and drug-related charges. Mr. Crabtree denied that he had drunk any alcohol or smoked any marijuana the afternoon of the incident. On cross-examination, Mr. Crabtree acknowledged that he pulled out a knife during his altercation with Defendant. Mr. Crabtree said that when he saw what was happening, he yelled, and Defendant jumped back. Defendant's penis slid out of T.C.'s mouth, and Defendant zipped up his pants before the others arrived. Mr. Crabtree said he had previously lived with Defendant and Christy Sexton for awhile, and that he gave Defendant's address to the Social Security Administration in order to receive his disability checks. Mr. Crabtree said that he recorded $300.00 as his rental expense on his application for disability, but he acknowledged that he only paid $100.00 in rent to the Sextons. Mr. Crabtree acknowledged that Defendant and Ms. Sexton reported the discrepancy to the social security office in Cookeville. Mr. Crabtree said that he "got aggravated [with Defendant and Ms. Sexton,] but not that bad." Willard Crabtree testified that he told Timmy Crabtree that Defendant and T.C. were in the backyard picking pellets out of a tree on the afternoon of the incident. Willard Crabtree said that Timmy Crabtree then walked into the yard. Willard Crabtree said that he heard "cussing," and he and Ms. Sexton went to investigate. Willard Crabtree asked T.C. to tell him what happened, and T.C. told Willard Crabtree that Defendant put his penis in T.C.'s mouth. T.C. was shown a diagram of a nude male figure during his testimony. T.C. identified the figure's penis and said that he called it a "wee-wee." T.C. testified that Defendant's "wee-wee" went inside T.C.'s mouth. Wendall Reagan, who was chief deputy with the Fentress County Sheriff's Department at the time of the incident, testified that Gerthie Crabtree, Timmy Crabtree, and T.C. came to his office on June 28, 2000. Deputy Reagan said that Timmy Crabtree was angry and very upset, but he did not appear to be under the influence of drugs or alcohol. Deputy Reagan secured a warrant for Defendant's arrest based on the information provided by Timmy Crabtree and T.C. Defendant was not home, and Ms. Sexton told Deputy Reagan that Defendant had gone to Knoxville to check on -2-

a job. Deputy Reagan said he later found Defendant in Judy Ecret's backyard in Jamestown and arrested him. The State rested its case-in-chief. Christy Sexton testified that she and Defendant arrived at her parents' house between 4:00 p.m. and 4:30 p.m. on June 28, 2000. Ms. Sexton said she heard a commotion by an outbuilding on her parents' property. Ms. Sexton said she grabbed Timmy Crabtree by the shirt and asked what was going on. Ms. Sexton said that Timmy Crabtree told T.C. to say that Defendant had put his penis in T.C.'s mouth. Ms. Sexton said that she asked T.C. if Defendant had done anything to him, and T.C. told her "no." Ms. Sexton said that T.C. told her that Defendant had been urinating, and Ms. Sexton said that she observed that the side of the outbuilding was wet. Ms. Sexton said that she saw Timmy Crabtree smoking marijuana in his vehicle before her parents arrived. Ms. Sexton questioned T.C. about the incident a second time a few days later when T.C. was visiting her apartment. T.C. again told her that nothing had happened and Defendant did not touch him. Ms. Sexton said that Ledena Durham was present during both of these conversations. On cross-examination, Ms. Sexton acknowledged that she brought T.C. to her apartment a few days after the incident in order to record her conversation with the child. Ms. Sexton denied telling her mother that she would give Timmy Crabtree a Ford Bronco and $200.00 if he would change his story about what he witnessed. Ms. Sexton said that T.C. had visited her and Defendant when they lived in Knoxville. Ledena Durham said she was present in Ms. Sexton's apartment when Ms. Sexton recorded her conversation with T.C. Ms. Durham said that T.C. told Ms. Sexton twice that Defendant had not engaged in any inappropriate behavior with him. On cross-examination Ms. Durham denied that recording T.C.'s conversations was Defendant's idea. The State recalled Willard Crabtree as a rebuttal witness. Mr. Crabtree stated that "they" said Defendant had urinated on the outbuilding. Mr. Crabtree said that he went down to check the outbuilding a few minutes after the family left for the sheriff's department and the side of the outbuilding was not wet. Gerthie Crabtree, testifying as a rebuttal witness, said that Ms. Sexton told Ms. Crabtree that she was taking T.C. to her apartment to swim. Ms. Sexton did not tell Ms. Crabtree that she planned to record Ms. Sexton's conversation with T.C. Ms. Crabtree said that T.C. never told her that Defendant did not put his penis in T.C.'s mouth. Ms. Crabtree said that Ms. Sexton told her that she would give Timmy Crabtree $200.00 and the Sextons' Bronco if he would change his story. Ms. Crabtree said that Timmy Crabtree refused to change his story.

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II. Analysis A. Ineffective Assistance of Counsel Trial counsel was relieved of representing Defendant following the trial and sentencing hearing. Defendant filed a motion for new trial and was appointed new counsel. Defendant's new counsel filed an amended motion for new trial and presented and argued the amended motion to the trial court. This appeal followed. In his first issue, Defendant contends that he received ineffective assistance of counsel because (1) counsel allowed the victim to testify about prior bad acts and sex crimes committed by Defendant during counsel's cross-examination of the victim, and (2) counsel failed to object to the prosecutor's improper statements during closing arguments. Defendant included his claim for ineffective assistance of counsel in his motion for new trial. This Court has consistently "warned defendants and their counsel of the dangers of raising the issue of ineffective assistance of trial counsel on direct appeal because of the significant amount of development and fact finding such an issue entails." Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999). Raising the issue of ineffective assistance of counsel on direct appeal is "a practice fraught with peril." State v. Thompson, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). This peril is two-fold. First, ineffective assistance can rarely be established without an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 689-90, 694, 104 S. Ct. 2052, 2065, 2067, 80 L. Ed.2d 674 (1984). Post-conviction procedures afford an evidentiary hearing to a Defendant with colorable claims. See T.C.A.

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