Assigned on Briefs December 9, 2014 at Knoxville
Appeal from the Criminal Court for Madison County No. 12-555 Roy B. Morgan, Jr., Judge
Christie Hopper, Jackson, Tennessee (on appeal); and Jeremy B. Epperson, Assistant Public Defender (at trial), for the appellant, Allen Cornelius Bond.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, 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., joined. Timothy L. Easter, J., concurred in results only.
ALAN E. GLENN, JUDGE
On the night of May 18, 2012, two sisters, "younger victim" and "older victim, " were touched sexually by the defendant, a cousin of the boyfriend of the victims' mother. As a result, the defendant was indicted for the child rape and attempted child rape of the younger victim, and the aggravated sexual battery and attempted sexual battery of the older victim. Before trial, the State dismissed the attempted child rape and aggravated sexual battery charges, and the defendant proceeded to trial on the remaining two charges.
At trial, the younger victim, who was eight years old at the time of the incident, testified that in May 2012 she lived with her mother, twin brother, older sister, younger sister, and her mother's friend, Ken Bass. She had know Bass since she was three years old. The younger victim identified the defendant as "Tojo, " and explained that she had known him "[f]or a long time" as he is Bass's first cousin.
The younger victim recalled a night in May 2012 when they had some friends, K.J. and K.C.,  over for a sleepover. The group was in the living room, watching a scary movie on TV. There were two couches in the living room. The younger victim slept on the smaller couch, and the older victim, K.J., and K.C. slept on the larger couch. The younger victim did not have her own bedroom, so she always slept on the small couch with covers as if it were her bed. The younger victim recalled that she was wearing pajama pants, an undershirt, and underwear that evening. She stayed awake "[k]ind of" late and eventually fell asleep.
The younger victim testified that at some point during the night, she awoke to the defendant touching her "middle part" between her legs under her clothes. The defendant had pulled her clothes "[h]alfway down." The defendant used his finger to touch both the inside and outside of the younger victim's private part, which she described as feeling "[u]ncomfortable." The defendant also tried to "put his private into [her] behind." The younger victim did not say anything to the defendant because she was scared. The touching went on for "[a] little while, " but the defendant stopped when the younger victim's brother woke up.
The younger victim testified that she told her mother what had happened once the defendant left the house. When she went to the bathroom, she noticed some blood. She showered and changed clothes and underwear, then sometime later she went to the hospital for an examination. On cross-examination, the younger victim acknowledged that she previously told someone that the defendant only touched her on top of her clothes.
Mary Jane Cole, a sexual assault nurse examiner with Jackson General Hospital in Jackson, Tennessee, testified as an expert in sexual assault forensic nursing that she interviewed and examined the victim on May 18, 2012. It was her understanding that the sexual assault occurred around the same date that she conducted the examination. Her examination did not reveal any injury to the victim's genitalia or anal area, but she noted that "[o]nly about 4 percent of the prepubescent population will demonstrate acute injury to the genitalia."
Nurse Cole testified that the younger victim was "very quiet" and "did not engage in conversation with [her]." When she questioned the younger victim if any part of her body hurt, she said that her "behind" hurt. Nurse Cole recalled that the younger victim shook her head negatively when asked if she had told anyone about the incident, but the nurse was unsure whether the younger victim understood the question. The younger victim indicated to the nurse that she was wearing the same clothing and underwear that she had been wearing during the incident. When asked if she had urinated or defecated recently, the younger victim indicated that she had urinated and had wiped her genitalia with toilet tissue. The younger victim's mother informed Nurse Cole that the younger victim had noticed blood when she went to the bathroom. Nurse Cole stated that "there was some confusion" relating to when the younger victim bathed or showered, but it was Cole's understanding that the younger victim last bathed around 9:30 p.m. which was prior to the incident.
Nurse Cole testified that she swabbed the outer area of the younger victim's labia majora, the border of her buttocks, and the external portion of her anus. She also collected the younger victim's underwear. She noted the crotch of the younger victim's underwear was soiled with a brownish coloring, but not bright blood. Nurse Cole stated that there was a very low likelihood that any of the perpetrator's DNA would be present when the assault involved digital penetration, particularly when the victim's genitalia had been wiped after urination.
The older victim, who was thirteen years old at the time of trial, testified that on May 18, 2012, she had her friends, K.J. and K.C., over for a sleepover. The older victim, younger victim, their brother, K.J., and K.C. watched TV in the living room together. They watched "[s]omething on the Disney Channel" and never watched a scary movie that evening. The younger victim sat on the "couch chair" with a cover, and the older victim and her friends sat on the larger couch. At some point that night, the younger victim fell asleep on the "couch chair."
The older victim testified that the defendant was Ken Bass's cousin and that she had known him for as long as she had known Bass, approximately five years. She knew the defendant as "Tojo." On the night of the sleepover, the older victim saw the defendant enter the house and sit down on the arm of the younger victim's chair. The TV and lights were on, and everyone except the younger victim was awake. The older victim saw the defendant "rubbing" or moving his hand under the younger victim's cover for about five minutes. The younger victim woke up after the defendant left the room and then went back to sleep. The older victim did not tell anyone what she had witnessed because she was scared.
The older victim testified that the defendant returned to her house again that night around 2:00 or 3:00 a.m. He walked into the living room, turned on the light, and asked the older victim if she was asleep. The older victim responded, "Not anymore, " and the defendant turned off the light and sat in the computer chair. The older victim testified that the defendant rubbed on the top of her thigh, and she asked, "What you doing[?]" The defendant said to her, "Come here, " and she responded, "No." The defendant stopped touching her and left the house. After the defendant left, the older victim told her mother what had happened, and her mother called the police.
On cross-examination, the older victim was questioned about her testimony at a previous hearing in city court. Defense counsel asked the older victim if she remembered saying that the defendant touched her leg but did not mention her thigh. The older victim responded that her thigh is part of her leg. Defense counsel also asked the older victim about her testimony at another previous hearing. The older victim acknowledged that, at that hearing, she said that the defendant "started [touching her] like in [her] feet and was coming up" and stopped above her knee. The older victim clarified, "And that's on my thigh, above my knee." Asked if she remembered telling a woman named Monica Goodman at the Carl Perkins Center that the defendant touched her around the knee area, the older victim said that she did not remember saying that but would not disagree with Goodman if that was what Goodman recalled.
K.J., who was twelve years old at the time of trial, testified that she lived near and went to school with the older victim. One night in May 2012, K.J. went to the victims' house for a sleepover. That night, K.J., the victims, the victims' brother, and another friend, K.C., watched the Disney Channel on the TV in the living room. They never watched a scary movie that evening. K.J., K.C., and the older victim sat on one couch, while the younger victim sat on another chair or couch.
K.J. testified that, at one point during the night, she saw the defendant sit on the arm of the chair where the younger victim was sleeping and put his hand under her cover. However, K.J. could not see what the defendant was doing under the cover. The defendant eventually stopped and left the house. K.J. did not tell anyone what she had observed because she was scared. K.J. fell asleep but was later awoken by the older victim. K.J. learned from the older victim that the defendant had returned to the house while K.J. had been asleep.
On cross-examination, defense counsel questioned K.J. about a statement she gave to a police officer regarding the night in question. K.J. admitted that she indicated in her statement that after she saw the defendant put his hand under the younger victim's blanket, she and the older victim went and told the victims' mother. She also admitted that she indicated in her statement that they went and told the victims' mother two different times. However, K.J. said that what was in the statement was wrong; they only spoke to the victims' mother after the defendant left the second time. K.J. acknowledged that she did not tell the police officer the truth. However, on redirect examination, K.J. said that she was just "mixed-up" and did not intentionally lie to the officer.
K.C., who was fourteen years old at the time of trial, testified that she lived near the older victim at the time of the incident. On May 18, 2012, K.C. went to the older victim's house for a sleepover. They were in the living room watching the Disney Channel on the TV. At one point during the evening, the defendant entered the house, walked into the living room, and sat on the arm of the big chair on which the younger victim was sleeping. K.C. saw the defendant's "hand up under the [younger victim's] blanket touching her." K.C. said that the incident did not go on "too long" and that the defendant eventually left. K.C. told the older victim and K.J. what she had seen. K.C. was scared, so she left the victims' house and returned to her own home. K.C. did not inform her parents of what she had witnessed at the victims' house. On cross-examination, K.C. acknowledged that she could not see underneath the younger victim's blanket.
Following the conclusion of the proof, the jury convicted the defendant of the lesser included offense of aggravated sexual battery against the younger victim and, as charged, of ...