Court of Criminal Appeals of Tennessee, Knoxville
Session September 16, 2014
Direct Appeal from the Circuit Court for Sevier County No. 15763-II Richard R. Vance, Judge
Robert L. Vogel (on appeal), Knoxville, Tennessee, and Michael Green (at trial), Sevierville, Tennessee, for the appellant, Dustin Matthew Lucio.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; James B. Dunn, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Roger A. Page and Robert H. Montgomery, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
At trial, the victim testified that on the day of the alleged incident, she worked at General Electric in Mascot. That night, she went "karaoking" with Judy Smith, who was her adoptive mother, and Joanna Stewart and Jessica Cervantes, who were Smith's biological daughters. A.K.,  the fifteen-year-old niece of Stewart and Cervantes, stayed at Stewart's apartment to babysit Stewart's two young children. The four women went to two bars, and the victim consumed two and one-half alcoholic drinks before Smith announced that she wanted to go home. Smith drove the victim and Stewart back to Stewart's apartment and dropped them off.
The victim testified that she and Stewart did not go into Stewart's apartment. Instead, Stewart got into her car, told the victim that A.K. had agreed to watch the children all night, and left to go to her boyfriend's house. The victim did not want to drive home because she had been drinking alcohol, so she went into Stewart's apartment alone. She said that as soon as she entered, A.K. "jumped off the couch" in the living room and was "pointing" and "hollering." A.K. was intoxicated, was slurring her words, and could barely stand up straight. At the same time, the appellant came into the living room from the back of the apartment. A.K. screamed that "that's not my boyfriend, " lay on the couch, and vomited into a trash can. The victim said, "I put her in my lap. I'm holding her hair back and I tried to get her some bread."
The victim testified that Stewart's apartment had two bedrooms and that Stewart's children were sleeping in the master bedroom. She said that she had never seen the appellant prior to that night, that he offered her a drink, and that he asked her name. The victim said she "played" with her telephone while A.K. remained passed out in her lap. The appellant asked if the victim had a boyfriend, and she told him yes. At that point, a male and female came out of the back bedroom. The victim did not know them and had been unaware they were there. The couple left, and the appellant followed them outside. The appellant came back into the apartment, put a twenty-dollar bill into A.K.'s hand, and told the victim to tell Stewart that Stewart did not have to pay the babysitter. The appellant left the apartment again, and the victim thought he would not return. A.K. remained on the couch with the victim.
The victim testified that the appellant came back into the apartment, told her that his friend had left a cellular telephone in the back bedroom, and went to the bedroom to look for it. The appellant asked the victim to call the phone so he could find it and gave her the telephone number. The victim dialed the number and went to the bedroom but could not hear the lost phone ringing. Suddenly, the lights in the room went out. She said that the appellant pushed her into the bedroom and that she fell onto the floor between a wall and a dresser. The appellant, who was behind her, shut the bedroom door, put his arm around her neck, and put his hand over her nose and mouth. The victim said that she could barely breathe, was kicking and screaming, and began to black out. The appellant told her that he would move his hand if she would stop screaming and do as he said.
The victim testified that she "[gave] up" and that the appellant told her to "move to the bed." The victim went to the bed, and the appellant told her to take off her pants. The victim said she told him that "you don't want to do this, I'm on my period." The appellant unbuckled her belt, pulled down her pants to her feet, and removed her shoes. He took off her underwear, got on top of her, and pulled down his pants. The victim said that she was crying and that the appellant put his penis into her vagina for five or six minutes. She said that during the incident, the appellant held her cellular telephone over her head and showed her a picture of her son that was on the phone. He told her, "[D]on't you want to be a good mother to your son, you will do as I say, whatever I say, whenever I say."
The victim testified that the appellant ejaculated. Afterward, he said that "this will make you feel better" and put his mouth on her vagina. The appellant's phone started ringing, so he pulled up his pants and told her not to move or he would get a knife from the kitchen and kill her. The appellant left the bedroom, and the victim got off the bed and looked for her underwear. The appellant returned to the room, told her to get back onto the bed, and told her that he had friends "coming to do the same thing to you." The victim said that she was scared and that the appellant left the bedroom again. The victim heard him go into the bathroom and shut the door, so she grabbed her underwear and put it on. She pulled up the window blinds, opened the window, and jumped through it.
The victim testified that she "took off running" to the apartment of Joe Mayton, who had raised A.K. as his daughter but was not A.K.'s biological father. The victim opened Mayton's unlocked front door and ran inside. She started screaming to Mayton that she had been raped and that A.K. and Stewart's children were still in Stewart's apartment with the appellant. Mayton called 911 and left. Shortly thereafter, the victim returned to Stewart's apartment. The police were there, and the victim told them what had happened. The victim went into the back bedroom and saw her pants, belt, and shoes on the floor. Later, she went to the hospital so that evidence could be collected for a rape kit. She also gave the police a statement at the hospital. She said that both of her lips were "busted" and that she had bruises on her back from hitting the dresser. At the conclusion of her direct examination testimony, the victim identified the appellant in court as the person who raped her.
On cross-examination, the victim testified that she was not "intoxicated drunk" but had "a buzz" that night. She denied drinking alcohol with the appellant and A.K., flirting with the appellant, or laughing with him. She also denied knowing that the appellant possessed Roxicodone prior to having sex with him or that he took her telephone as collateral for giving her the drug. She acknowledged that after the appellant knocked her down and grabbed her from behind, he let her go so she could move to the bed. The victim said that she had started her menstrual period at one of the bars and that she had put toilet paper in her underwear because she did not have a tampon. However, the police did not recover the toilet paper from the apartment, and she did not know what happened to it. She acknowledged that she may have testified previously that she started her period three or four days before the incident.
On redirect examination, the victim testified that she had never seen A.K. intoxicated before that night and that the appellant was "in and out" of the apartment. After the appellant put the twenty-dollar bill into A.K.'s hand, he said he wanted to take A.K. to McDonald's. The victim told him, "[N]o, dude, she's passed out, she's unconscious, she ain't going nowhere, she's supposed to be here." The victim said the appellant was mad and acted like he was going to lift A.K. off the couch. The appellant's actions scared the victim, but she refused to let him take A.K. out of the apartment. The victim identified photographs of her injuries.
Jessica Cervantes testified that she had known the victim about ten years and that the victim began living with Cervantes' mother, Judy Smith, when the victim was about sixteen years old. On the night in question, Joe Mayton telephoned Cervantes. Cervantes missed his call, but he left a voicemail on her phone. In the voicemail, Mayton said A.K. had been drinking and had been raped, and Cervantes could hear someone hysterical and crying in the background. Cervantes called 911, reported that A.K. had been raped, and went to Joanna Stewart's apartment. She saw the victim sitting on the sidewalk and learned the victim, not A.K., had been raped. She said the victim was crying, shaking, and hysterical.
Joseph Mayton testified that he was A.K.'s father and lived in the Park Village apartments. Joanna Stewart also lived in the apartment complex. On February 20, 2009, Mayton and some friends were in his apartment when the victim "burst in the door" and said she had been raped. The victim was terrified and told Mayton that the appellant was in Stewart's apartment with A.K. and Stewart's children. She described the appellant as having short hair and a medium build and wearing jeans and a t-shirt. Mayton and one of his friends ran to Stewart's apartment, and Mayton knocked on the door. Mayton said that the appellant answered and that the appellant's face was "completely white." Mayton did not say anything to the appellant but "clocked" him on the head. Mayton and his friend scuffled with the appellant in the living room, and the fight continued into the parking lot. Mayton said A.K. "woke up out of her slumber, " came outside, and told Mayton to stop. A.K. argued with Mayton, and he told her to go back inside. He said the appellant "got away" in the appellant's car, a white Eclipse.
On cross-examination, Mayton testified that the victim identified the appellant by name and that his fight with the appellant lasted about three minutes. On redirect examination, Mayton testified that the victim came into his apartment wearing a shirt but no pants and that he gave her a pair of his shorts to wear. When A.K. came out of ...