State of Tennessee v. Brandon Lee Clymer, M2016-01124-CCA-R3-CD

Background

Victim (born 2007) alleged two incidents of inappropriate touching by family friend Brandon Clymer in December 2013; forensic interview recorded January 10, 2014.
Forensic interview: child described the defendant “digging in” her “pee pee,” indicated fingers went into/around the “two parts” and moved side-to-side; also described touching near the back/top of pants in a bedroom incident.
At trial the recorded interview was played and the victim testified consistent with the recorded statements; defense called a patrol officer with limited recollection.
Jury convicted Clymer of rape of a child (sexual penetration); trial court sentenced him to 26 years (Range II).
On appeal Clymer raised: insufficiency (penetration), admissibility of the forensic interview, admission of his pretrial statement (alleged officer opinion), prosecutor’s rebuttal comments, cumulative error, and excess/unconstitutional sentencing. The Court of Criminal Appeals affirmed.

Issues

Issue	State's Argument	Clymer's Argument	Held
Sufficiency of evidence (penetration element)	Victim’s recorded & trial statements and drawing suffice to show intrusion of vulva/labia.	Victim sometimes denied finger entering the “hole” and trial testimony was uncertain — no proof of penetration.	Evidence sufficient; child’s descriptions ("inside the two parts," "line," side-to-side movement) legally establish penetration.
Admissibility of forensic interview (Tenn. Code §24‑7‑123 qualifications)	Interviewer Kennedy met statutory qualifications (education, training, experience including comparable child-work).	Kennedy lacked 3 years of qualifying full‑time experience; work at Vanderbilt not within listed categories.	Trial court did not abuse discretion; Vanderbilt role was comparable work with children and interview admissible.
Admission of defendant’s recorded pretrial statement (officer opinion)	Statements by officers were admissible for context and the court gave limiting instructions; not substantive evidence.	Officers’ opinion statements improperly bolstered victim’s credibility and should have been redacted under Rule 701/608.	No abuse of discretion; limiting instructions given and jurors presumed to follow them.
Prosecutor’s rebuttal comments (failure to call witnesses / burden shifting)	Remarks responded to defense attack on State’s proof and were not an impermissible missing‑witness inference.	Rebuttal improperly shifted burden and commented on defense’s failure to call certain witnesses.	No due process violation; comments were responsive, not a Hodge‑style missing‑witness argument, and not prejudicial.
Cumulative error	N/A	Multiple alleged errors require new trial.	No cumulative error: individual claims lacked merit.
Sentencing — constitutional challenge & length	Mandatory minimum (Range II floor) constitutional; 26‑year within-range sentence supported by abuse-of-trust enhancement.	Mandatory 25+ year floor is cruel and unusual; court erred in imposing 26 years instead of minimum 25.	Mandatory floor not grossly disproportionate; no abuse of discretion in applying enhancement and imposing 26 years.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency review)
State v. Vasques, 221 S.W.3d 514 (Tenn. 2007) (appellate standard of review; view evidence in light most favorable to prosecution)
State v. Bowles, 52 S.W.3d 69 (Tenn. 2001) (legal penetration can include entry of vulva/labia; hymen need not be ruptured)
State v. McCoy, 459 S.W.3d 1 (Tenn. 2014) (statutory framework for admitting child forensic interviews)
State v. Bise, 380 S.W.3d 682 (Tenn. 2012) (standard of review and presumption of reasonableness for within‑range sentencing)
State v. Goltz, 111 S.W.3d 1 (Tenn. Crim. App. 2003) (categories of prosecutorial misconduct and analysis for prejudice)