Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville December 18, 2013
Direct Appeal from the Circuit Court for Robertson County No. 2011-CR-659 Michael R. Jones, Judge
Roger E. Nell (on appeal), Clarksville, Tennessee, and Timothy Richter (at trial), Springfield, Tennessee, for the appellant, Gabriel Torres.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason White, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Joseph M. Tipton, PJ., and Roger A. Page, J., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
In November 2011, the Robertson County Grand Jury indicted the appellant for three counts of rape of a child. Count 1 alleged that the appellant raped the victim at the victim's mother's house in the victim's brother's bedroom; count 2 alleged that the appellant raped the victim at his house in his bedroom; and count 3 alleged that the appellant raped the victim at her grandmother's house while the victim was "outside on a big caterpillar bungee yard toy." According to the original indictment, count 1 occurred between August 1, 2008, and May 31, 2009. The indictment did not provide dates for counts 2 and 3. However, on the morning of trial, the trial court allowed the State to amend the indictment for all three counts, alleging that the offenses occurred between May 1, 2007, and August 31, 2009. Shortly thereafter, the State elected to dismiss count 3.
The then eleven-year-old victim testified at trial that she was born on April 10, 2001, and was in the sixth grade. She said that the appellant was her uncle and that she had known him "[s]ince [she] was little." The State showed the victim an anatomically-correct picture of a girl, and she identified the "chest, " "crotch, " and "butt" as a girl's "private parts." The State showed the victim an anatomically-correct picture of a boy, and she identified the "penis" and "butt" as a boy's "private parts." She acknowledged that touching a person's private parts constituted a "bad touch."
The victim testified that the first incident with the appellant occurred at her home in Springfield during a first communion party for her brother and sisters. The State asked the victim how old she was at the time, and she answered, "Like six." The victim said that everyone was outside and that she went inside the house with the appellant to show him the bathroom. Instead of going into the bathroom, the appellant told the victim to pull down her pants, and he pulled down his pants. The victim said that she saw the appellant's private part and that it was "long" and "round." She said that the appellant put his private part inside her private and that it did not feel good. The victim acknowledged that the appellant put his private into her crotch. She said that the appellant's penis "felt gooey" and that she could not remember if she felt pain.
The victim testified that the incident happened in the hallway outside the bathroom and that she and the appellant were standing. She was leaning against the wall, and he was facing her. The appellant pulled his penis out of her crotch, told her to pull up her pants, and told her not to say anything to anyone. He then went into the bathroom, and the victim went outside to her mother. She said she did not tell anyone because she was scared "he might do something."
The victim testified that the second incident occurred at the appellant's trailer. Prior to the incident, the victim had been playing outside at her home. The appellant approached the victim and asked if she wanted to go to the store with him. The victim told him that she would have to ask her mother. The appellant went inside the house, came outside, and told the victim that her mother had said she could go with him. The appellant took the victim to the store and bought a bag of candy for her and a bottle of beer for himself. They left the store, and the appellant told the victim that he had to stop by his house. When they got there, the victim went inside the trailer with him. The appellant told the victim to come into his bedroom and lie on his bed. The victim did as she was told.
The victim testified that the appellant went into the bathroom and came out holding a piece of toilet paper. He told the victim to pull down her pants, and he pulled down his pants. She said that she saw his private part and that it was "long, round and wrinkly." The appellant put his private part into her crotch. She described his private part as "squishy" and said that it hurt. The appellant took his penis out of her crotch, and something white came out of his penis. She said that the appellant wiped his penis with the toilet paper, that he put his penis back into her crotch, and that "[i]t [felt] wet." Someone knocked on the front door of the trailer, so the appellant took his penis out of the victim, pulled up his pants, and left the bedroom to answer the door. The victim said that she heard the appellant talking with someone and that the person left. The appellant returned to the bedroom, told the victim to pull up her pants, and told her not to tell anyone. Then he took her home. She said that the second incident may have happened one year after the first incident.
The victim testified that she was bilingual and that the appellant spoke to her in Spanish. She said that when she was in the fifth grade, her guidance counselor taught her class about cyberbullying and "good touches and bad touches." The victim ...