Assigned on Briefs August 5, 2014
Appeal from the Criminal Court for Shelby County No. 08-05474 Chris Craft, Judge
Andrea Sipes Lester, Jackson, Tennessee (on appeal); and Randall Rhea, Memphis, Tennessee (at hearing), for the appellant, O'Neal Johnson.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alexia Crump, 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 Roger A. Page, J., joined.
ALAN E. GLENN, JUDGE
The petitioner was convicted of rape of a child and sentenced to twenty-five years at 100% as a violent offender. State v. O'Neal Johnson, No. W2010-00405-CCA-R3-CD, 2010 WL 4812770, at *1 (Tenn. Crim. App. Nov. 19, 2010), perm. app. denied (Tenn. Apr. 18, 2011). This court affirmed the judgment of the trial court on direct appeal, and the Tennessee Supreme Court denied his application for permission to appeal. Id. The underlying facts of the case were recited by this court on direct appeal as follows:
In December 2007, the twelve-year-old victim . . . discovered that she was pregnant as a result of the [petitioner]'s sexually penetrating her during the months of April to October 2007. For his actions, the [petitioner] was indicted on one count of rape of a child.
At trial, the victim testified that the [petitioner] lived with her and her mother, her younger sister, and her two younger brothers during the period of April to October 2007. The victim recalled that during that time period, when they were residing at a house on McCrory Avenue and later Appian Cove, the [petitioner] "touch[ed] [her] in the wrong spot." She elaborated that the [petitioner] touched her "[i]n [her] private parts" or vagina, and he did so on more than ten occasions. The victim shared a bedroom with her sister, and the [petitioner] picked her up out of bed, took her to the living room or kitchen, laid her on the floor, and "pull[ed] [her] pants down." Once the [petitioner] took the victim's pants off, he had the victim get on her hands and knees and stuck his penis "[i]n the back." The victim clarified that the [petitioner] put his penis in her vagina. The victim said that to the best of her knowledge, the [petitioner]'s penis did not go into any other part of her body. She said that "[i]t hurt[ ] . . . [e]verywhere below [her] waist" when the [petitioner] did this to her. The victim said that she never struggled with or told the [petitioner] "no" because "he said if [she] ever t[old] he would threaten to kill [her] and [her] momma, " which made her feel sad and scared. The [petitioner] never threatened to harm himself.
The victim testified that up until October 1, 2007, the [petitioner] was the only person who had ever touched her vagina with a penis. In December 2007, the victim was visiting with her aunt and cousin when they "noticed that [her] stomach was starting [to] get[ ] big." After taking a pregnancy test, the victim admitted that the [petitioner] had touched her, but her mother did not believe her. The victim gave birth to a full-term baby on March 31, 2008.
On cross-examination, the victim testified that she recalled giving a statement at the Child Advocacy Center on January 2, 2008, in which she said that the [petitioner]'s penis went in her "butt." However, she said that she told the interviewer that the [petitioner] had put his penis in her vagina, but she did not think the interviewer wrote that down. She also acknowledged that she told the Child Advocacy Center that the [petitioner] had threatened to kill himself, not her or her mother, if she told.
The victim's sister . . . testified that she was currently thirteen years old. During the time period of April 1 to October 1, 2007, the [petitioner] was her mother's boyfriend and resided with their family. On an occasion when the group was living in a house on Appian Cove and her mother was at work, [the victim's sister] and her two brothers were watching a movie in her mother's bedroom, when [the victim's sister] walked toward the kitchen and "saw [the victim] on her hands and knees." The victim had her school uniform on, but her pants and underwear were down below her knees. Someone was holding his hand over the victim's mouth and using his other hand to pull back the victim's hair. [The victim's sister] assumed that the hands belonged to the [petitioner] "[b]ecause he was the only man in [their] house" at the time. The victim buttoned and zipped her pants and the man zipped his pants, and [the victim's sister] asked the victim what was going on. A voice [the victim's sister] recognized as the [petitioner]'s said, "Nothing." [The victim's sister] asked the victim to start another movie for them, and the victim told the [petitioner] "to go put on another movie" and he did. [The victim's sister] said that she had seen the [petitioner] with a gun "[m]any times" and that he kept it in a drawer in her mother's bedroom. [The victim's sister] stated that she was scared of the [petitioner].
The victim's older cousin testified that in December 2007, she noticed that the victim's stomach "looked a little big . . . for her age." [The victim's cousin] and her mother purchased a pregnancy test and assisted the victim in taking it, and it returned a positive result. The victim ...