Assigned on Briefs July 08, 2014
Appeal from the Criminal Court for Shelby County No. 1102890 Carolyn W. Blackett, Judge
Jeff Woods, Memphis, Tennessee, for the appellant, John Valentine.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Amy P. Weirich, District Attorney General; and Terre Fratesi and Mark Erskine, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined and Jerry L. Smith, J., not participating.
John Everett Williams Judge
Facts and Procedural History
This case arose from the defendant's convictions for rape of a child and aggravated sexual battery. According to the proof at trial, the defendant penetrated the victim with his penis and forced the victim to masturbate him.
Audrean Bond-Jones was the principal at Bethel Grove Elementary School in November of 2010, where the victim was a first-grade student. On November 17, 2010, the victim was brought to Ms. Bond-Jones' office for inappropriate behavior towards another student. While in line in the cafeteria, the victim was "hunching" on another student. The victim placed the front part of her body against the back of another student and "would just do a little front back motion." Ms. Bond-Jones testified that the victim "shared quite a bit of information about some things" that occurred in her home. When the victim spoke about certain sex acts, Ms. Bond-Jones asked her where she learned about the acts, and the victim "began to demonstrate . . . what her experiences were with her father." In response to the victim's statements, Ms. Bond-Jones called the Department of Children's Services ("DCS"), and law enforcement officers came to the school.
Marion Woods had been the victim's foster mother since the end of November 2010. Ms. Woods was a teacher and testified that the victim's performance in school was somewhat deficient. She indicated that the victim sometimes struggled with the concepts of dates and times, as the victim might say that she was with her mother or sister the previous evening when she actually was with Ms. Woods. Ms. Woods testified that the victim's accounts of her interactions with the defendant remained consistent.
Angelique Roshea Horace was a foster care counselor with Youth Villages and served as the victim's foster care counselor. She worked with the victim on developing "social skills[, ]" such as communication, listening skills, and "making friends." Ms. Horace's overall goal with counseling was to assist the victim and Ms. Woods in achieving the victim's permanency goal of adoption. Ms. Horace testified that when the victim was nervous, she would giggle, place her hands in front of her face, and lower her head.
The victim testified that she was currently ten years old and in the third grade. She stated that her father's name was "[t]ighten up" and that she had seen him when she went to bed on the evening before she spoke with Ms. Bond-Jones. The victim slept in the same room as her mother and the defendant. On the evening of the incident, the victim was asleep in a bed with her mother and the defendant, and she awoke to see the defendant "feeling on" her mother. The defendant then touched the victim's front private part with his penis. He placed his penis inside her front private part and moved "in a circle[, ]" and the victim testified that it "[h]urt." The defendant also placed his penis inside the victim's bottom, and the victim testified that "[i]t hurt when it [was] in me." He touched her breast private part, and the victim testified that "[w]hen he touched it, it hurt me. He touched it and I feel [sic] uncomfortable." The defendant told the victim to touch his penis with her hand, and he placed her hand on his penis. The victim demonstrated for the jury how the touching occurred. The victim "told [the defendant] to stop, but he didn't stop." The victim testified that she could feel "pee" come out of the defendant's penis. She stated that the penetration only occurred one time and that it was on the same night that she placed her hand on the defendant's penis. The victim recalled telling Ms. Bond-Jones the next day that her "hand was smell [sic] like pee[, ]" and the victim believed it was because her hand was on the defendant's penis.
Mary Daley, a pediatric nurse practitioner, performed a sexual assault examination on the victim. Ms. Daley acknowledged that there was some confusion in her report as to the date of the assault. The victim told Ms. Daley that the assault occurred the night before the exam, but the victim's mother said that the assault occurred the week before the exam. Ms. Daley also wrote on her report that the victim stated that "Daddy stuck his stuff up my booty last night, then he peed on my hands." The victim told Ms. Daley that she got into trouble at school when she "[a]ccidentally freaked" another student. The victim demonstrated to Ms. Daley that "freaking" meant forward pelvic thrusts against another person.
When Ms. Daley examined the victim, she noticed that the victim had "two very, very red deep scratched areas around the perihymeneal area." The tissue around the hymen was very bright red and "extremely tender" during the exam. She stated that there were no tears or abrasions on the hymen itself. She noticed "fairly deep" scratch marks on the victim's external genitalia area. Ms. Daley also observed a bruised area between the victim's "front private and her back private." Several photographs of these injuries were shown to the jury.
The first photograph depicted the victim's external genital area. Ms. Daley identified five scratches on the genital area that she noted as abnormal during the exam. She testified that the scratches were "fairly deep" and had grooves that were deeper than a normal scratch of the skin would be. The second photograph showed the victim's internal genitalia and illustrated a "deep[, ] dark grooved area" on the perihymenal band. The third photograph was of the victim's annular hymen, where a darkened area was visible on the right side. The fourth photograph showed several scratches, redness, and part of the hymen wall. The fifth photograph depicted the scratch marks and the deep red coloration on either side of the hymen and illustrated a small area of bruising. The sixth photograph again showed the redness around the hymen and showed a darker area. Ms. Daley opined that the area was darkened due to a bruise. The seventh photograph showed scratch areas with a "deep bloody looking groove, " irritation, and a darkened area. The eighth photograph showed the victim's anal opening, and Ms. Daley testified that it appeared "normal[, ]" as there were no tears or fissures. The eighth photograph also depicted the area earlier described as bruised and the perineal area. The ninth photograph showed the victim's anal opening. Ms. Daley testified that the darkened area was visible, and there appeared to be bruising between her front private and back private.
Ms. Daley classified the victim's injuries as "indeterminate, " as "[i]ndeterminate physical examination findings may support the patient's disclosure of abuse." She testified that "indeterminate" was used to categorize something "not normally seen on a regular, normal, physical exam." Ms. Daley stated that the scratches and bruises on the victim's perihymeneal area, the small external bruise area, and the small, bruised area directly behind the vaginal area were not normally present during an exam. She testified that her findings were consistent with the victim's statement that "Daddy put his stuff up my booty, " as children do not always understand the concept of a vaginal opening. She testified that nothing in the victim's physical history indicated that there had ever been any kind of injury in the genital area that would have left the marks that she observed. She agreed that whether the time frame of the abuse was a day or a week before the exam, her findings were still consistent with the victim's disclosure of abuse.
Letitia Cole was a forensic interviewer with the Memphis Child Advocacy Center who conducted a forensic interview with the victim. She testified that during the interview, the victim made an "active disclosure" of abuse using both anatomical drawings and anatomical dolls. She stated that an "active disclosure" was a full disclosure made by a victim during a forensic interview. A video recording of the victim's interview was then played in open court.
Lieutenant Carl J. Ray was a sergeant in the Memphis Police Department's juvenile squad for sex crimes and child abuse cases at the time of the incident. He interviewed the defendant, who voluntarily gave a statement after waiving his Miranda rights. The defendant told police that his favorite saying was "tighten up." He stated that the victim's mother placed the victim in bed with her and the defendant. As the defendant and the victim's mother "got intimate, " he asked her, "Why not put [the victim] on a pallet or something[, ]" and she replied that the victim would "be alright." He stated that the victim awoke while he and the victim's mother were "making love" and that the victim's mother was shocked when the victim awoke. He said that he briefly had ...