Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 9, 2014
Appeal from the Criminal Court for Sullivan County No. S59430 Robert H. Montgomery, Jr., Judge
Larry Dillow, Kingsport, Tennessee, for the appellant, Kenneth Moses.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Barry Staubus, District Attorney General, Teresa Nelson and Emily Smith, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P. J., delivered the opinion of the Court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Officer Richard Kindle, of the Sullivan County Sheriff's Department, was assigned to investigate an allegation of sexual abuse against the victim, S.B. (we will refer to the minor victim by her initials), that occurred on April 24, 2011. Officer Kindle testified that the victim was interviewed by Amy Bachman, of the Children's Advocacy Center, on May 2, 2011. Officer Kindle reviewed Ms. Bachman's notes from the interview and later met with the victim and her mother at their residence on May 16, 2011.
Officer Kindle also took a statement from Defendant. Defendant stated that the victim was his eight-year-old stepdaughter and that he had a six-year-old biological daughter with the victim's mother. Defendant and the victim's mother began a relationship when the victim's mother was two months pregnant with the victim. On Easter Sunday in 2011, the family came home in the evening, and Defendant played video games in his bedroom while the victim's mother used the computer and the children played. The children went to bed around 8:30 p.m. Defendant went to check on the children, and they appeared to be sleeping. He returned to playing video games. Sometime later, the victim's mother went into the bedroom where Defendant was playing video games and began yelling at Defendant. She called him a "sick bastard" and told him that she "wished [he] would die." She told Defendant "what [S.B.] had said." Defendant stated that he was "shocked." The victim's mother told Defendant to leave the residence. Defendant initially denied the allegations, but the victim's mother asked him repeatedly, and "finally [he] said, 'Yes, I did it just to shut her up.'" Defendant packed his belongings, and the victim's mother drove Defendant to her sister and brother-in-law's house. One week later, Defendant's sister-in-law called the police "and had him escorted from her residence." Defendant stated to Officer Kindle that he "never touched [S.B.] in a sexual way."
The victim was eleven years old at the time of trial. She was eight years old at the time of the incident. Her mother and Defendant were married at that time, and she called Defendant "Dad." S.B. testified that on Easter Sunday in 2011, her family attended a cookout at her aunt's house. They returned home that evening, and she and her younger sister went to bed in the bedroom that they shared. After S.B. laid down, Defendant came into her bedroom. He reached under her covers and touched her on her "no-no spot." She testified that he moved his finger around inside of her. She testified that it hurt. Defendant did not say anything to S.B. After the incident, S.B. told her mother what happened.
The victim's mother, R.C. (we will refer to the mother by her initials to withhold the victim's identity), testified that on the night of the incident, Defendant put the victim to bed. R.C. was using the computer, and S.B. ran to her crying and upset and told her, "'Daddy touched my no-no spot.'" S.B. told her that "'it hurt really bad.'" R.C. testified that Defendant was in the back bedroom and seemed to have heard what S.B. told her. R.C. confronted Defendant, and Defendant did not immediately respond. Defendant then said, "'It's the first time and the last time.'"
R.C. testified that she and Defendant "were teenage sweethearts" and they "loved each [other] very much." She testified, "at that moment my whole world just kind of was torn." She tried to remain calm, and she offered to take Defendant to her sister's house until he found another place to live. The following day, she reported the incident to the police.
Defendant later wrote a letter to R.C., in which he stated,
I'm sorry for whatever I did that night but I just don't know what was going on. All I remember is, is that [E]aster after we left Rick[']s house after the BBQ I don't remember a lot. I [re]member us being at home, the kids in bed, I thought I was layin [sic] down in our bed. I thought you were coming to bed. I don't really know what happened from that night up to like a few weeks after [E]aster. I thought I was with you at home but when I realized I wasn't with you and I was with Rob, and my family asking me about what was going on, and the detective said that I did all that, I just ...