Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 16, 2014
Appeal from the Circuit Court for Hickman County No. 12-5025CR Timothy L. Easter, Judge.
Richard Boehms, Duck River, Tennessee, for the appellant, Jameson Delgizzi, aka Decharme.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Kim R. Helper, District Attorney General; and L. Kate Yeager, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.
ALAN E. GLENN, JUDGE
The defendant was indicted for rape of a child, as a result of his, at the age of eighteen, receiving oral sex from a three-year-old relative whom he was babysitting. At the guilty plea hearing, the State relayed that, had the case gone to trial, its proof would have shown that the defendant asked the victim to play the "lollipop game" with him, wherein she put his penis inside her mouth. The defendant gave a statement to police admitting to the crime.
The trial court reviewed the defendant's rights with him, as well as the consequences of his plea agreement, including the requirement of community supervision for life. The court ensured that the defendant was aware that he was pleading outside his range. It was explained that such agreement was reached to "get it to a number of years that makes it able for everybody to agree on a sentence[.]" The defendant asserted to the trial court that if he were drug-tested, he would not test positive. However, the defendant was immediately drug-tested and returned a positive result, which prompted the court to comment, "You've already misled the Court. That's not a good start."
The court conducted a sentencing hearing at which M'Lee Hudgins, a forensic interviewer with the Child Advocacy Center, testified that she interviewed the victim who was almost four years old. Hudgins recalled that the victim related what had happened:
[S]he pointed to the penis on the male anatomical drawing and told me that was a penis and that she saw daddy's penis. She then said I touched it and see what it would look like. [The victim] said that [the defendant]'s penis looks like a lollipop, said [the defendant] is my brother. [The victim] said I keep putting it in my mouth. [The victim] said her mouth, it bite it. [The victim] said pee pee came out of [the defendant]'s penis. [The victim] said it taste like a lollipop sucker. [The victim] said [the defendant]'s penis looked big and big and way big. [The victim] said [the defendant]'s penis was hard.
Hudgins described the victim's demeanor as "[v]ery happy and very talkative, she was very verbal, just a happy little girl."
Scott Smith, Chief Deputy at the Hickman County Sheriff's Department, testified that he interviewed the defendant in response to the victim's disclosure. During the interview, the defendant admitted to having the three-year-old victim perform oral sex, or play "the lollipop game, " on him. Deputy Smith believed that the defendant was the victim's uncle.
The victim's father testified that the defendant was his wife's uncle's son or her cousin. On the night of the incident, the victim's father and his wife asked the defendant to babysit the victim. They put the victim to bed and were gone two to three hours. When they returned, the victim was in a different bed, dressed in different clothes, and had no underwear on. Both the victim and the defendant said that the victim had wet the bed.
The victim's father testified that the victim came to him the next morning and said, "Uncle Jay put his penis in my mouth, it was funny, huh." The victim's father initially "had a hard time believing that actually occurred" and thought the victim might have dreamed it. The victim's father explained that they were not shy about nudity in the home, and his wife had recently had an adult party for women featuring penis-shaped pencil toppers that he thought the victim might have found lying around the house. However, the victim was adamant that the penis she was talking about was "on him, " referring to the defendant.
The victim's father testified that, since the incident, the victim was immediately more aware of adult situations and understood sexual innuendo jokes that she previously did not understand. The victim's father said that they had been "ostracized" by his wife's family since the incident, which prevented his wife from visiting her dying grandmother. The victim's father said that he wanted to "see justice happen" so that the defendant would not "be able to do this to anyone else."
The victim's mother testified similarly to the victim's father. The victim's mother stated that at first she explored other possible explanations for what the victim had described because she did not want to believe the defendant had done what the victim said. The victim's mother said that she did not think there would be any problem in leaving the victim in the defendant's care, explaining that she had taken the defendant along on a road trip to Maine with the victim without any issue. She trusted the defendant to take care of the victim.
The victim's mother said that her side of the family would not associate with her after the incident. She stated that the victim now "assumes that she's alone in the world" and did not even expect to have anyone at her birthday party. The victim's mother relayed that at one point, they lived in a tent on family property and no one in the family checked on them. Another time, a vehicle belonging to one of her uncles spun its wheels to spray gravel on her. Asked what she ...