Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs January 22, 2015
Appeal from the Criminal Court for Sullivan County No. S61208 Robert H. Montgomery, Jr., Judge.
Jonathan E. Roberts, Bristol, Tennessee, for the appellant, Maxwell Monroe Hodge.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Barry Staubus, District Attorney General; and Teresa Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Norma McGee Ogle, and D. Kelly Thomas, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
The defendant was convicted of Class B felony rape pursuant to Tennessee Code Annotated section 39-13-503 and was sentenced as a persistent offender to a term of 25 years in the Department of Correction. Following the overruling of his timely motion for new trial, the defendant filed a timely notice of appeal.
At trial, the 22-year-old female victim testified that the defendant was married to the victim's cousin, Nicole Smith Hodge. The victim went to the defendant's and Ms. Hodge's home in Bluff City on March 30, 2012, to celebrate the birthdays of the victim and of Ms. Hodge. The victim testified that the defendant was there that evening but was "in and out" and "always had a beer in his hand." Because she had been drinking, the victim planned to stay the night on the sofa at the defendant's and Ms. Hodge's residence.
The victim testified that the defendant and Ms. Hodge began arguing. The defendant left the residence but later called Ms. Hodge to tell her that his motorcycle had broken down. Ms. Hodge woke the victim to tell her that Ms. Hodge was going to pick up the defendant. The victim went back to sleep on the sofa, only to be awakened later by feeling the defendant's hand on her vagina. She testified that "it felt like he was trying to pry me open." When asked on direct examination whether she felt the defendant's fingers "manipulating or touching [her] vaginal area, " the victim replied, "I felt the pressure. That's what woke me up."
The victim testified that she "scooted back" and "kicked him in the chest all in the same motion and he stumbled back, fell on his butt for a second and then stood up." She asked the defendant, who "was drunk, " what he was doing, and he mumbled something that was "hard to comprehend." The defendant walked away. The victim said that she ran first to the "kids' room" but then went to Ms. Hodge and told her what had happened. Ms. Hodge told her to go home and "call the law." The victim went to her father's house in Bristol and, from there, "called the law."
In response to the call, an officer came and spoke with her and told her that a detective would be in touch with her. Before the detective contacted her, the victim obtained an order of protection to prevent the defendant's contacting her.
On cross-examination, the victim agreed that she had been drinking in the evening before the assault occurred. When asked whether she felt pressure or penetration, the victim testified, "Pressure, penetration in my mind is the same thing." When asked if she knew whether he had "actually penetrated [her] vagina, " the victim replied, "I felt violated and penetrated, yes, sir."
She said the assault occurred after midnight but before three a.m. when she arrived at her father's home. She testified that she called the police around three a.m. but agreed that she had testified in the preliminary hearing that she called around four or five a.m.
The victim testified that, when the defendant assaulted her, she was wearing a tee shirt and baggy shorts. She agreed that, after the defendant was arrested, she stayed with Ms. Hodge "for a couple of days on ...