Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 23, 2014 at Knoxville
Appeal from the Circuit Court for Marshall County No. 2013-CR-55 Lee Russell, Judge
James Ronald Tucker, Jr., Shelbyville, Tennessee (on appeal) and William M. Haywood, Lewisburg, Tennessee (at trial) for the Appellant, Ricky Allen Hickman.
Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr., J., and Joe H. Walker, III, Sp.J., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from allegations of sexual abuse made against the Defendant by the victim, the Defendant's granddaughter. A Marshall County grand jury indicted the Defendant for three counts of rape of a child and three counts of aggravated sexual battery.
At the Defendant's trial, the following evidence was presented: Joey Kinder testified that he was married to Kimberly Kinder and that she had three children from a previous relationship. He stated that, in addition to his two children, Ms. Kinder's three children lived with the couple and that he was close with his step-children, who looked at him "as dad." He stated that, before August 2010, he had met Ms. Kinder's father, the Defendant, two or three times, and he recalled that the Defendant "gave Ms. [Kinder] away" at their wedding on June 5, 2010. Mr. Kinder identified the Defendant in the courtroom.
Mr. Kinder stated that the Defendant visited the Kinder's home during the period of April through August 2010. He stated that the victim, K.C., was present in the home during that time period. Mr. Kinder testified that, when the Defendant came to visit the residence at the end of April 2010, K.C. "was like [my] shadow. Everywhere I went she was right there. I call it clingy. She was very clingy. I could not get away from her any way." Mr. Kinder stated that this was "unusual" behavior for K.C.
Mr. Kinder testified that on August 13, 2010, he had a discussion with the victim. He stated that the victim climbed into his lap and began telling him about a class she had been in at school with a guidance counselor. The victim proceeded to tell him "something that [he] thought was important, " "totally unsolicited, " which prompted Mr. Kinder to speak with his wife about his conversation with the victim. After telling Ms. Kinder what the victim had said and speaking together with the victim, the couple contacted the Marshall County Sheriff's Department.
On cross-examination, Mr. Kinder recalled that, during the Defendant's visits to the family's home, Mr. Kinder had seen the other children sit on the Defendant's lap, but he had never seen the victim do the same. Mr. Kinder stated that the Defendant volunteered to keep the couple's children while they went on their honeymoon during the summer of 2010.
Kimberly Kinder, the Defendant's daughter, testified that her daughter, the victim, was born January 19, 2003, and was one of five children in the Kinder family. Ms. Kinder recalled a conversation she had with the victim on August 13, 2010. The victim told Ms. Kinder that she had been in a class at school "about not keeping secrets[.]" Ms. Kinder learned that the victim had told Mr. Kinder her "secret" and stated that the victim also told her "what her secret was[.]" Ms. Kinder stated that, after discussing the victim's "secret" with her husband, they contacted the Marshall County Sheriff's Department. Ms. Kinder testified that an investigation by the sheriff's department ensued.
Ms. Kinder testified that at some point during the time period of September 1, 2009, through October 31, 2009, there was a party at the Kinder's house and that the Defendant was in attendance. The Defendant was asked to go out and buy ice, and the victim asked to accompany him on the errand. Ms. Kinder recalled that the Defendant took the victim in his van to buy the ice. Ms. Kinder learned later during the sheriff's department's 2010 investigation that an "incident" occurred while the Defendant and the victim were in the van that day. Ms. Kinder stated that one day, when she and the victim were riding around town, they came to an old warehouse, and the victim "got upset" and told her mother what had happened there. Ms. Kinder reported to the sheriff's department what the victim said that day.
Ms. Kinder testified that during the time period of December 2, 2009, through December 11, 2009, she had surgery and the Defendant offered to take care of her children while she recovered. She stated that the Defendant had opportunities to be alone with the victim during that time.
Ms. Kinder testified that during the time period of December 1, 2009, through December 31, 2009, she moved with her children into a new house to live with Mr. Kinder, and the ...