Assigned on Briefs August 5, 2014
Appeal from the Criminal Court for Shelby County No. 11-03205 Chris Craft, Judge
R. Todd Mosley (on appeal) and James P. DeRossitt, IV (at trial), Memphis, Tennessee, for the appellant, Delquan Bolton.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace and Marianne L. Bell, Assistant District Attorneys 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 Roger A. Page, J., joined.
ALAN E. GLENN, JUDGE
This case arises out of allegations of sexual abuse against the defendant by his ex-wife's daughter, who was less than thirteen years old at the time of the incidents. As a result, the defendant was indicted for one count of rape of a child and one count of aggravated sexual battery.
The victim, who was thirteen years old at the time of trial, testified that she has two older brothers, one younger brother, and one younger sister. She lives in an apartment with her mother, stepfather, and siblings. The victim recalled that her mother was previously married to the defendant and that, when they were married, she lived in various apartments in Frayser and a white house on Winston Street in Memphis with her mother, the defendant, and her siblings.
The victim testified that her home life was happy while her mother and the defendant were married until the defendant "started putting his private part between [her] legs inside [her] private part." She recalled that this began after they moved from a house that was across the street from her grandmother. She clarified that by "private part" she meant penis. She said that it hurt and "didn't feel right" when the defendant put his penis in her private part and that he moved "in and out between [her] legs." She cried while it was happening. She could not recall how many times this happened, but she knew that it happened more than once at various homes in which they lived. She knew that she was in the third grade at Corning School when one of the rapes occurred, but she could not recall the other schools she attended or grades she was in when other rapes took place. The victim remembered that the abuse began when the family lived in a house before they moved to an apartment complex, then continued when they moved to the New Horizon Apartments, and later at the house on Winston Street. The victim recalled that the abuse also occurred when they lived with her aunt, although she could not remember if that was before or after they lived in the house on Winston Street. The victim identified photographs of the various apartments and homes where the abuse occurred.
The victim testified that the defendant also touched her buttocks and between her legs and told her that she "needed to start playing with [her]self more often. Putting [her] fingers between [her] legs to make [her] private hole open more." The victim elaborated that, when they lived in the apartment, the defendant touched her buttocks by sticking his hand in her pants and panties and touching "skin to skin." The defendant also touched her "front private part" under her clothes when they lived in the apartment. She said that it felt "nasty" to her and that she scooted away from him, but he moved closer to her. The victim recalled one time when they lived on Winston Street that she and the defendant were walking to the store with her little sister and brother, and the defendant told the younger children to walk ahead and he put his hand in the back of her pants. The victim wanted to tell someone what was going on with the defendant but was scared because the defendant told her that her mother would put her out of the house or beat her if she told.
The victim testified that the acts occurred when her mother was at work or otherwise out of the house. The victim recalled that her mother sometimes left the house because she and the defendant had been fighting or because the defendant had threatened her. When the victim's mother left the home because of fighting with the defendant, "[t]hat's when he'[d] start putting his private part between [the victim's] legs and [her] privates." It took place in the victim's mother's bedroom.
The victim did not recall the first time that the defendant raped her, but she recalled the last time that it happened. The last time it happened, the victim was in the kitchen at their home on Winston Street getting something from the refrigerator, and the defendant told her to come into the room next to the kitchen. The defendant made her pull down her clothes; she cried because she was scared. They were standing up, and the defendant put his "private" between her legs. It hurt and "just didn't feel right."
The victim testified that one time she saw a "whitish clear type color" substance come out of the defendant's penis. This occurred when they were living in an apartment before they moved to Winston Street. The victim had been aggravating her brothers when the defendant told her to come into his room because he was going to give her a "whooping." The defendant closed the door and told the victim to take off her clothes, and he took off his pants and underwear. The victim was crying, and the defendant held down her hands and "stuck his private in [her] private hole." He went "in and out" until he ejaculated in her and some got on the floor, just as the victim's mother arrived home. The defendant said that he did not mean to put his sperm in her, and gave her a brown towel to go into the bathroom and "wipe it out." She complied and saw semen on the towel. She described is as "whitish, clearish, bubbly." The victim heard her mother call one of her brothers. She locked herself in the bathroom and cried.
The victim testified that she ultimately decided to tell her mother about the abuse long after it occurred, while they were living with her aunt. The defendant was still living with them at the time. The victim felt that it was hard to get her mother alone to talk to her, so she followed her mother into the bathroom and told her. Her mother cried and asked why she did not tell her earlier. The victim did not stay with her mother "until she got rid of [the defendant], " which was a week or two later. The victim told her mother that she wanted the defendant to be incarcerated, and she wanted to go to counseling. The victim said that she was examined by a nurse, whom she told what had occurred with the defendant. The victim maintained that her mother did not tell her what to say during the trial.
The victim's fifteen-year-old brother testified that the defendant treated the victim differently than he treated her siblings when he was married to their mother. The victim's brother recalled one occasion when he was around ten or eleven and the victim was seven and the children were playing outside, and the defendant told the victim to "come here" because she was "fixing to get a whooping." The victim went inside, but the victim's brother did not know what the victim had done wrong. The victim's brother recalled another occasion when he and his siblings were playing in his bedroom at the New Horizon Apartments, and the defendant called the victim to him to give her a "whooping." The victim went to their mother's room with the defendant, and the defendant closed the door. The victim's brother could hear the victim crying, and the victim stayed in the room with the defendant for a long time. He said that their mother was at church at the time. The victim's brother tried to peek into the room through the bathroom, but the door from the bathroom into their mother's bedroom was closed. When the victim finally emerged, she was crying. The victim's brother did not think that the victim misbehaved a lot.
The victim's mother testified that she married the defendant in January 2006, and he moved in with her and her children on Dunlap Street where they lived until June 2006. Thereafter, they lived in a house on Tunica Street until October 2006. In October 2006, they moved to the New Horizon Apartments, where they lived until 2008 when the victim was nine years old. After that, the family moved to a house on Maplewood Street with the victim's mother's god sister, where they lived for a couple of months until they moved to a house on Winston Street in 2008.
The victim's mother testified that, when she met the defendant, he was very attentive to her and her children, even taking the children to the zoo and different places. At times, she and the defendant got into arguments and, when the arguments were bad, she left the house to calm down. Her children remained at home with the defendant when she was away calming down. The children also stayed with the defendant on Wednesdays when she went to ...