Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 29, 2014
Appeal from the Circuit Court for Cheatham County No. 16363 George C. Sexton, Judge
Gregory D. Smith (at motion for new trial and on appeal), Clarksville, Tennessee, and Michael J. Flanagan (at trial), Nashville, Tennessee, for the appellant, Rohman M. Harper.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Deputy District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which John Everett Williams and Roger A. Page, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
At the trial, the then-eight-year-old victim testified that on April 14, 2011, he was age six and that he was at James Tindall's house. The Defendant lived in the basement of the Tindall home, and the victim lived across the street. The victim said that around sunset he was on a tricycle at the front step leading to the Tindall driveway and that while he was sitting on the tricycle, the Defendant "got in front of [him] and reached down [his] pants" with his hands. He said the Defendant touched his skin below his underwear. He called the area his "bad spot, " which he identified by circling the penis on an anatomical drawing of the male human body.
The victim testified that he told the Defendant to stop touching him and yelled for Mr. Tindall. The Defendant told the victim not to tell anyone about the touching. He said that Mr. Tindall saw the Defendant's touching him and that the Defendant stopped when Mr. Tindall arrived. The victim ran home to tell his thirteen-year-old brother what had occurred, and the Defendant ran to a nearby tree. The victim did not know how long the touching lasted.
The victim testified that his brother ran after the Defendant, that his brother and the Defendant struggled, and that the Defendant ran away. The victim's parents arrived soon after the incident, and the victim told his parents about the Defendant's touching him.
On cross-examination, the victim testified that he talked to a woman named Laura about the incident, although he did not recall much about their conversation. He did not recall telling her that he was sitting on the tricycle by the deck. He recalled telling her that the Defendant first lifted him off the tricycle and said he remembered it after counsel asked about it. He did not recall telling her that the Defendant also touched his arm and stomach and said he did not think the Defendant touched him there. The victim said he did not remember if he was in front of the door or by the deck.
On redirect examination, the victim testified that he told Laura that the Defendant touched him on his bad spot. He did not recall telling her that the Defendant touched his face but agreed he consistently stated that the Defendant touched his bad spot.
James Tindall testified that several people lived at his house at the time of the incident, including his wife, their children, Mr. Tindall's mother, and the Defendant. He said that at the time of the incident, he was in the kitchen and that the kitchen door led outside where the victim was on his tricycle. He said the Defendant used the restroom and entered the kitchen. He said the Defendant commented on "what he would like to do to" Mr. Tindall's teenage daughter's friend, who was about fourteen years old. Mr. Tindall asked the Defendant what was wrong with him. Mr. Tindall said that the Defendant was not "normal" that day and that he smelled of alcohol. The Defendant went outside and sat on the steps where the victim was on his tricycle.
Mr. Tindall testified that he heard the victim say, "[L]eave me alone, stop, " and that the victim asked for his help. He thought the Defendant was simply "picking" and "messing around" with the victim. Mr. Tindall told the Defendant to leave the victim alone without looking at the victim and the Defendant. Mr. Tindall said he turned around and saw the victim with a "funny look on his face." Mr. Tindall could not see what the Defendant was doing because of the manner in which the Defendant was sitting on the steps, but he thought something "weird" was happening. Mr. Tindall found his wife and told her that he thought the Defendant might have been doing something improper to the victim. He said that his wife walked up behind the Defendant, stood over the Defendant's shoulders, and saw the Defendant with his hand down the victim's pants.
Mr. Tindall testified that the victim saw his wife and ran from the Defendant. Mr. Tindall saw the Defendant grab the victim's arm and heard the Defendant tell the victim, "[Y]ou keep that between me and you, you understand." The victim ran to the rear of the car in the driveway, and the Defendant chased the victim. The victim was able to run across the street. Mr. Tindall said the Defendant was standing next to a big tree when the victim's brother walked to where the Defendant was standing. The victim's brother was angry and attempted to hit the Defendant with a rock, but the Defendant grabbed the victim's brother by the throat and pushed him down. The Defendant attempted to run inside the house, but Mr. Tindall and his wife gathered their children and their children's friends inside and slammed the door on the Defendant's hand. Mr. Tindall saw the Defendant run around the house before the police arrived. The police found the Defendant in the backyard ...