State of Tennessee v. Fred Chad Clark, II
Lower court summary:
The Defendant, Fred Chad Clark, II, was found guilty by a Davidson County Criminal Court jury of seven counts of rape of a child and two counts of aggravated sexual battery. See T.C.A. §§ 39-13-522 (Supp. 2005, 2006) (amended 2007, 2011) (rape of a child), -504 (2006) (aggravated sexual battery). He was sentenced as a Range I offender to seventeen years for each rape of a child conviction and to ten years for each aggravated sexual battery conviction, to be served at 100% as a child rapist. The trial court ordered partial consecutive sentencing, for an effective thirty-four year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions because the State failed to establish the corpus delicti; (2) there was a material variance between the proof and the State’s election of offenses; (3) the trial court erred in admitting surreptitiously recorded conversations he had with his wife on January 18, 2007; (4) the trial court erred in admitting evidence of the Defendant’s use of pornography; (5) the trial court erred in allowing a detective to offer opinion testimony about the Defendant’s truthfulness; (6) the trial court erred in instructing the jury on the mental state of recklessness for the counts involving rape of a child; and (7) the trial court erred in sentencing by using an inapplicable enhancement factor and in imposing consecutive sentences. We affirm the judgments of the trial court in Counts V, VI, VII, IX, and X. Due to deficiencies in the election of offenses relative to Counts I, II, III, and IV, we reverse those convictions and remand the case for a new trial for those counts.