Assigned on Briefs June 3, 2014
Appeal from the Criminal Court for Shelby County No. 1107054 Honorable Paula L. Skahan, Judge
Marvin Ballin and Richard S. Townley, Memphis, Tennessee, for the Defendant-Appellant, Tan Vo.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General, Amy P. Weirich, District Attorney General; and Eric Christensen and Eugene C. Ostner, Assistant District Attorneys General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Jeffrey S. Bivins, J., Not Participating.
CAMILLE R. McMULLEN, JUDGE
On November 8, 2011, the Shelby County Grand Jury indicted the Defendant with two counts of rape and one count of incest for an incident involving his nineteen year-old daughter. The case was tried by jury on July 10-12, 2013, at which the following proof was presented.
Trial. In the last week in June 2011, the victim, C.K., moved out of her adoptive parents' home in Nashville and came to Memphis to live with and get to know her biological father, the Defendant. She was nineteen years old at the time. The victim stayed with her paternal grandmother when she first arrived in Memphis because the Defendant, who was married and had another daughter, did not have sufficient room in his house. However, the victim spent each evening with the Defendant and his family before returning to her grandmother's home to sleep.
On July 2, 2011, after being in Memphis for less than a week, the victim went to dinner with her uncle and then went to the Defendant's home around 10:30 or 11:00 p.m. When she arrived, the Defendant and several friends were sitting around drinking and listening to music. The Defendant's wife and other daughter were not at the house that evening. The victim joined the Defendant and his friends in drinking and consumed four or five beers. The Defendant's friends left around 12:00 a.m., and the Defendant's brother and roommate went to bed soon after. The Defendant told the victim that she could sleep in his room with him rather than on the couch. The victim did not "think anything of" the Defendant's offer because she knew that the Defendant's other daughter regularly slept in the bed with the Defendant and his wife.
The victim entered the Defendant's bedroom, climbed into bed, and laid down on her side. The Defendant followed the victim into his bedroom and locked the bedroom door before getting in bed. Once in bed, the Defendant gave the victim what she described as a "fatherly hug." He then started to rub her back and kiss her neck. She felt "awkward" and did not know what to do. The Defendant turned the victim over on her back, removed her shorts, and started performing oral sex on her. After a few minutes, the Defendant got out of bed and removed the rest of his clothing. He got back in bed and penetrated the victim vaginally with his penis. The Defendant attempted to kiss the victim on the mouth, but she would move her head to avoid the kiss. The victim testified that she did not move or speak during the incident. At one point, the Defendant asked, "Is this okay, " and the victim did not respond because she was scared. She testified that she had "tears rolling down [her] face." She noted that the Defendant was not wearing a condom.
After the incident, the victim told the Defendant she needed to use the bathroom. She put on her clothes and went into the bathroom where she called her adoptive mother and told her the Defendant had raped her. While she was on the phone, the Defendant knocked on the bathroom door and asked her if she was okay. The victim hung up the phone and told the Defendant that she was fine. Her adoptive mother and father called 911 in Memphis to report the incident. When the victim exited the bathroom, the Defendant asked her if she wanted to smoke a cigarette in the den. She agreed "because [she] didn't want to go back in the bedroom." After the Defendant finished his cigarette, he went back to bed and the victim called her boyfriend. She then exited to house to find the Memphis Police arriving on the scene.
The victim spoke with officers on the scene and then was transported to the Rape Crisis Center where a "rape kit" was performed on her. The Defendant was arrested and transported to the sex crimes division of the Memphis Police Department where swabs were taken from his mouth and genitals. As the Defendant was being transported to the jail for processing, he told Sergeant Melvin Amerson, "[s]he's my daughter. When I got on her, she did not tell me to stop. So I had sex with her. I asked her was it wrong."
The victim's "rape kit" and the swabs taken from the Defendant were transported to the Tennessee Bureau of Investigation ("TBI") crime lab for testing. Special Agent Lawrence James, a forensic scientist with the TBI, testified as an expert in forensic DNA analysis. He testified that semen was found in the victim's underwear, and the semen found matched the Defendant's DNA profile. Following deliberations, the jury convicted the Defendant of sexual battery as a lesser-included offense of rape and incest as charged in the indictment.
Sentencing Hearing. At the August 23, 2013 sentencing hearing, the Defendant's ex-wife, Lilly Nguyn, testified that the Defendant was "very sorry" about the incident and "ashamed of himself." She testified that he was a good husband who took care of his family, and although she divorced the Defendant for other reasons, she ...