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State v. Sellers

Court of Criminal Appeals of Tennessee, Jackson

November 20, 2014


Assigned on Briefs October 7, 2014

Appeal from the Criminal Court for Shelby County No. 13-00442 J. Robert Carter, Jr., Judge

Tony N. Brayton, Assistant Public Defender (on appeal); Robert Felkner, Assistant Public Defender (at trial), Memphis, Tennessee, for the appellant, Wayne Sellers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Amy P. Weirich, District Attorney General; Cavett Ostner and Carrie Shelton-Bush, Assistant District Attorneys General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.



Factual Background

Defendant was indicted for the aggravated rape of S.M., [1] a 64-year-old woman. The victim was living in Memphis in December of 2011. The morning of the incident, S.M. set out on foot from her apartment in East Camilla Towers[2] with her "red cart" and her "bags" to pay her bill at a storage facility. She was notified that her account was in arrears and she needed to pay $267 or the facility would sell her belongings. S.M. used the red cart like a walker to help her mobility. She intended to purchase a money order at the Kroger on Frayser Boulevard before returning to the storage facility. On the way to the bus stop, she got a chicken sandwich, a diet soda, and two orders of french fries at Checkers. S.M. then tried to figure out how to "catch a trolley or how to catch the bus." She saw a police officer directing traffic for a "relay race" and asked how to get to the Kroger. She ended up going the "wrong way."

As she walked, she met a man who introduced himself as "Tyrone Jenkins." He started to follow her and asked her where she was going. He offered to "show" her how to get to the bus. S.M. explained, "[l]ike a stupid fool I followed him like a dummy because I didn't want to go. I was scared and I was frightened so I pushed myself to go so I could get that money order sent out before it got too late." S.M. followed "Tyrone" under a bridge and into a field. At that point, she was "scared" and wanted to "take off" but her foot and left hip "froze."

At that point, "Tyrone" took her cart and "threw it against the weeds." S.M. explained that he "drug [her] clothes off . . . and then put his arm around [her] neck . . . and then he threw [her] down on the ground" on her back. "Tyrone" pulled her clothes and shoes off and got on top of her. S.M. tried to push him away but was unsuccessful. "Tyrone" told her to "relax" and not to say anything while he forced his penis into her vagina. This lasted "for a long time" before "Tyrone" climaxed. S.M. stated that it "hurt." When the incident was over, "Tyrone" left and S.M. screamed. "Tyrone" then came back, and helped S.M. put her shoes back on her feet before running away. As he ran away, he told S.M. where to catch the bus. S.M. managed to walk to a nearby tobacco plant and asked someone to call an ambulance.

Officer Wayne Ackerman of the Memphis Police Department arrived on the scene to find the S.M., whom he described as a "very emotional" woman "in her seventies or eighties maybe, . . . short, soiled clothing, didn't smell very nice, dirty." S.M. reported that she was forced to walk into the woods before she was raped. Officer Ackerman accompanied S.M. to the hospital while he sent another officer out to locate the scene of the rape.

While at the hospital, Officer Ackerman sat with S.M. for "probably two, three hours." During that time, no doctors examined S.M.. Lieutenant Stephen Oliver came to the hospital to assist in the investigation; Officer Ackerman talked with him briefly. Shortly thereafter, a nurse gave Officer Ackerman the victim's chart and told him that S.M. was ready to be discharged. The officers planned to take S.M. from the hospital to the Rape Crisis Center for a rape kit exam. S.M. asked if she could use the restroom. When she stood up, Officer Ackerman noticed a "large puddle of blood that had pooled while she was laying down." The "bed was full of blood, " and Officer Ackerman and Lieutenant Oliver "helped [S.M.] have a seat back on the bed and called for nurses and doctors." S.M. was finally examined and received "minor surgery" to place eight stitches in her vaginal area.[3]

While at the hospital, S.M. spoke with Lieutenant Stephen Oliver. She was able to give a physical description and first name of her attacker, "Tyrone."

Once S.M. was released from the hospital, the officers transported her to the Rape Crisis Center of Memphis. Tammy Keough from the Rape Crisis Center of Memphis testified for the State as an expert in sexual assault nurse examination. She examined S.M. on December 3, 2011. S.M. complained of pain around her neck as a result of the incident. As part of the examination Ms. Keough took photographs of S.M.'s neck with a forensic light to check for bruising under the skin. S.M. had bruises consistent with someone applying pressure to her neck and collarbone area. The bruises were not visible to the naked eye but could be seen with the forensic light and were visible in the photographs taken with a special filter. The victim also had scratches on the back of her arms and legs but reported that she did not receive them from the incident and refused to allow Ms. Keough to photograph these injuries. The ...

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