Court of Criminal Appeals of Tennessee, Nashville
Session March 11, 2014
Direct Appeal from the Criminal Court for Davidson County No. 2012B1817 Mark J. Fishburn, Judge
W. Justin Adams (on appeal) and Gina Crawley (at trial), Nashville, Tennessee, for the appellant, Brian Caswell McGrowder.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Sara Davis and Buki Baruwa, Assistant District Attorneys General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams, J., and Jerry L. Smith, Sp. J., joined.
Norma McGee Ogle, Judge
I. Factual Background
The appellant's charges resulted from his sexual relations with the minor victim. At trial, the then twenty-year-old victim testified that she was born on November 3, 1991, and had a daughter who was born on October 16, 2009. The appellant was the father of the victim's daughter. The victim stated that in November 2008, she was seventeen years old and lived with her mother in Ashland Hills Apartments. The victim was in the eleventh grade and participated in her high school's Ombudsman program, which was designed for students with "attendance problems." The program required that its participants attend school from 7:00 a.m. to 10:30 or 11:00 a.m. and then work or perform community service from 11:00 a.m. to 2:15 p.m.
The victim testified that either the last week of November or the first week of December 2008, she began working in the call center at Market Strategies International. On her first day of training, she met the appellant, her training supervisor. During the introduction portion of the training, the trainees were required to state their names and reveal something about themselves. The victim told the group that she attended high school and that she was seventeen years old, and the appellant was present during the introductions. The victim said that because the appellant was her supervisor, she wanted to impress him and did not want to do anything in front of him that would make him think poorly of her. The victim said she thought the appellant was "in his early twenties, he told me he was like 23, in his early twenties."
The victim testified that one day during the second week of December 2008, she and a boy with whom she went to school needed a ride home and that the appellant offered to drive them. When the victim revealed where she lived, the appellant said that he also lived in Ashland Hills Apartments. Before they left work, the boy found a ride home; therefore, about 9:00 p.m., the appellant and the victim left work together and began the drive home. The appellant drove past the apartment complex and was "just riding around." As he drove back to the apartment complex, he asked the victim if she had "ever had sex with a grown man." The victim did not respond, and the appellant told her that if he was going to have a conversation with her, "[she] needed to be a grown woman, [and she] needed to respond when he [asked her] questions."
The victim testified that her relationship with her mother became strained and that her mother evicted her from their apartment sometime before Christmas. The victim told the appellant about the situation, and he said the victim could live with him, noting that he had a spare bedroom. The victim agreed and moved in with the appellant. She lived with him for approximately two and one-half weeks. During that time, they began having sexual intercourse. She thought the first time they had sex was during "the last two weeks of December, the first week of January." They had vaginal intercourse less than ten times, and the appellant did not wear a condom. The victim said she did not worry about not using protection because "I wasn't really having sex so I didn't think I could get pregnant." The victim's mother occasionally telephoned to ask where she was, and the victim told her mother that she was at a friend's house.
The victim testified that about the first week of January 2009, the police came to Market Strategies, took her into the office, and told her that she was being taken into custody because her mother had reported her as a runaway. The victim telephoned the appellant and told him about the arrest, but he had no reaction. Thereafter, the victim returned to the appellant's apartment and stayed there for a few days; however, they did not resume their sexual relationship. The victim thought the appellant was fired shortly after she was taken into custody.
The victim testified that on February 14, 2009, she learned she was pregnant. The victim told her mother that she was pregnant and that the appellant was the father. The victim also told the appellant that she was pregnant, but he accused her of lying and demanded proof of the pregnancy. The victim showed him paperwork from her doctor, but he did not believe her, stating that she could have falsified the records. Afterward, the victim's relationship with the appellant ended, and she did not see him again.
The victim testified that she was afraid to have an abortion. Nevertheless, she worried about how she was going to support herself and the baby. She worked until the end of her pregnancy and continued going to school. After the baby was born, she went to the Department of Human Services (DHS) to obtain assistance for daycare. In order to authorize payment, DHS required that she identify the baby's father. However, the appellant had begged the victim not to seek child support and promised to help her financially with the baby's care, so she lied to DHS and claimed the baby's father was "Shawn Jones or somebody Jones." When the appellant did not provide the support, the victim identified the appellant as the baby's father, and DHS initiated child support proceedings against him. At first, the victim did not want the matter reported to the police because she thought the appellant was only twenty-three years old. However, a DHS worker informed the victim that the appellant was "[i]n his thirties, 34, 35" and that the relationship had to be reported because the victim was a minor and the difference between their ages was more than three years.
The victim testified that a paternity test confirmed the appellant as the baby's father and that she obtained a child support order against him. At some point, the police became involved, and the victim spoke with Detective Robert Carrigan. She said she was upset because the appellant was "old enough to be [her] dad." The victim again asserted that the appellant knew she was seventeen years old when they were having sex. She stated,
I was trying to move out [of] my mom's house and I was trying to get another job, so he wrote me a resume and he like at the bottom it said graduating class of -- or I was going to graduate in 2010, and he couldn't wait until I was 18 so we could be together . . . in public.
The appellant also drove her to high school occasionally.
The State asked the victim if the appellant ever told her not to tell anyone his age, and the victim responded, "Yes. He told me I should keep my mouth shut." The victim said that the appellant was not threatening her but that he was warning her that he could get in trouble. The State also asked, "[W]hen you were talking to him about helping you financially with the baby, did he ever threaten that he might even leave the country if you told anyone how old he was?" The victim answered that the appellant claimed he would "do what he had to do not to get in trouble." The victim said that she did not want to testify against the appellant and that she would not have reported their relationship to the police without DHS's intervention.
On cross-examination, the victim testified that she started working for Market Strategies the last week of November or the first week of December 2008 and that she had a two-week training period. The victim denied developing an interest in the appellant or leading him to believe she was eighteen years old. The victim said that when the appellant took her home the first time, he made inappropriate sexual comments to her. She did not go to the appellant's apartment at that time but did later when she did not have anywhere else to go. The appellant drove her home from work on two additional occasions. The victim said, "He wasn't acting strange, I just thought the questions that he [was] asking [were] weird."
The victim testified that after her mother "kicked [her] out, " she did not contact the police or family members for help. She said she and the appellant occasionally slept in the same bed, stating, "I didn't want to sleep with him, it just happened." She asserted that the appellant did not force her to sleep with him.
The victim testified that after she began staying with the appellant, he allowed her to drive his truck and gave her money to buy food for both of them. She estimated that at least thirty people worked in the call center and could have seen her and the appellant together; however, they did not eat together at work and did not pass notes to each other.
The victim acknowledged that she did not like high school and was frequently tardy or absent. She also acknowledged that she missed days during December 2008 and January 2009 and that other days she served in-school or out-of-school suspension. Nevertheless, she maintained that the appellant drove her to school occasionally.
Regarding her relationship with the appellant, the victim testified that "I wouldn't say I liked it" and that she was not upset when it ended. She said that the appellant's employment was terminated but that she was not the reason he was fired. She denied that the appellant confronted her about misleading him about her age. She also denied trying to rekindle the relationship after it ended. The appellant did not express interest in coming to the hospital when the baby was born, and he did not offer to help financially until the victim told him that she was going to seek child support. The appellant gave her money for the baby once and gave her Walmart gift cards twice. The victim acknowledged that while a parenting order was being negotiated, she told the mediator that the appellant "had fully supported the baby since birth." She explained that the appellant had asked her to lie so that he could avoid paying "back" child support.
The victim testified that she had occasionally left the baby with the appellant. One time when she picked up the baby, a woman was with the appellant. The victim became upset because the appellant had not seen the baby previously and because she did not want other women around the baby. The victim said that she saw the woman when the appellant opened the door "with the chain, " that she cursed the appellant and the woman, and that she had to call the police in order to get the baby back because the appellant would not open the door. She acknowledged that when the police arrived, she took the baby and left "in a rage." She also acknowledged that she may have sent him a text message after the incident and said that she probably told him that she was "going to kill him . . . because [she] was upset about him not taking care of the baby." She denied wanting a relationship with the appellant but asserted that she wanted him to help support their child.
The victim testified that she did not know the appellant's age until she was informed by someone from DHS. She acknowledged that the appellant had shown her two identification cards in the past but said that she did not look at anything on the cards except the appellant's name and address. When she started staying at his apartment, she learned he had a child.
On redirect examination, the victim testified that she trusted the appellant when he became her training supervisor. When her mother evicted her, she did not think that any family members were viable options for help and believed that the appellant was her only option. The victim and the appellant did not publicize their relationship at work and deliberately did not eat lunch together.
On recross-examination, the victim testified that when she went to live with the appellant, she "didn't consider him a stranger." However, he had acted inappropriately toward her, and she had no romantic interest in him.
Maria Levinson, the Training and Quality Director at Market Strategies International, testified that in November 2008, the appellant was responsible for training newly hired employees and monitoring quality control. During the "icebreaker" portion of the training, new employees were required to share their names and other information, which could include their ages. She said the training supervisors were always present during the introductory phase. The company required employees to be at least sixteen years old and frequently employed high school students.
Levinson testified that trainers were responsible for evaluating trainees to ensure they were meeting company standards. After one week, the trainers had to prepare progress reports, and another evaluation was performed at the end of the two-week training period. After the trainee "ma[d]e it to the floor, " the trainer retained some authority over the trainee and could recommend that the trainee's employment be terminated. The victim began working at Market Strategies as an interviewer in late 2008. At that time, the appellant and Tammy Townsend were the only evening trainers.
On cross-examination, Levinson testified that as an employee, the appellant was "[a]lways positive, upbeat, always with a smile on his face." The victim began working on December 8, and her last day of training was about December 22. According to a form from Market Strategies, Juilo Mohanna was the victim's supervisor. On redirect examination, Levinson testified that an employee could have more than one supervisor with disciplinary authority over the employee.
Angela Booker, an eligibility counselor with DHS, testified that she was responsible for deciding whether an applicant was eligible for benefits, namely Medicaid, food stamps, or Families First. In order to qualify for the Families First program, an applicant was not required to receive child support but was required to reveal the name of the other parent so DHS could pursue child support actions. If the applicant refused to name the other parent, the applicant could not receive benefits.
Booker testified that in late August 2009, the victim applied for Medicaid and was approved. On November 3, 2009, the victim applied for Families First. Three days later, the victim reported to DHS that the father's first name was Shawn and that she did not know his last name. Because she failed to provide the father's name, she was deemed uncooperative and denied benefits. The next day, the victim revealed that the appellant was the father, and she was approved for Families First benefits.
Metro Nashville Police Detective Robert Carrigan testified that in December 2008, the victim's mother reported that the victim was a runaway. On December 30, the victim was arrested. In January 2010, Lee Ann Thornton, a child support employee, suspected that the victim had conceived a child while the victim was a minor and made a mandatory referral to the district attorney's office. The case was referred to the police department, and Detective Carrigan was assigned to investigate.
Detective Carrigan testified that he learned DNA testing had established the appellant as the father of the victim's child. He also learned that the victim was seventeen years old when she became pregnant and that the appellant was thirty-six. The victim was born in November 1991, and the appellant was born in May 1972, making their age difference almost twenty years. Detective Carrigan stated that when he first interviewed the victim, she was reluctant to talk and "broke down crying" twice.
On cross-examination, Detective Carrigan testified that his records included an email written by Ms. Thornton on June 14, 2010, stating that the victim "told child support that she wanted to file rape charges against" the appellant. Detective Carrigan and another detective spoke with the victim at her home on June 23 and 24. The victim told Detective Carrigan that she was receiving child support payments but that she wanted to press charges against the appellant. Afterward, Detective Carrigan took the victim to night court where she signed an affidavit regarding the charges. On redirect examination, Detective Carrigan testified that, given the difference between the victim's and the appellant's ages, the appellant might have been prosecuted even if the victim had not wanted to press charges. At the conclusion of Detective Carrigan's testimony, the State rested its case.
Davonne Jinks testified that she worked for the Metropolitan Nashville Public School System as the court liaison in truancy cases. Jinks said school records reflected that the victim was suspended on December 8 through 11, 2008; January 9, 2009; and January 12 through 14, 2009. Additionally, the victim had unexcused absences on December 15, 2008, and January 8, 2009.
On cross-examination, Jinks testified that she could not determine from the records whether the victim went to the Ombudsman work site on the days of her suspension. The records reflected that the victim attended school some days in December 2008 and January 2009, that she was occasionally ...