Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 9, 2014 at Knoxville.
Appeal from the Criminal Court for Davidson County No. 2011-D-3684 Monte D. Watkins, Judge.
Michael A. Colavecchio, Nashville, Tennessee, for the Defendant-Appellant, James Russell Jones, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Hugh T. Ammerman and Robert McGuire, Assistant District Attorneys General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ALAN E. GLENN, JUDGE.
According to the State's proof at trial, on August 14, 2011, the defendant was driving the victim home from a bar when the two got into a verbal argument that progressed to the defendant's hitting and choking the victim, fondling her breasts and genitals, and digitally penetrating her vagina. The victim called 911 as she and the defendant were traveling in his car, but the defendant took her cell phone from her and hung up on the 911 operator. The defendant continued fondling the victim as he drove her to his condominium in Hermitage, where, over the course of the next two days, he forced her into various sex acts with him. On August 16, 2011, the victim managed to flee from the defendant and seek the assistance of two individuals she encountered at the defendant's condominium complex. The defendant was subsequently indicted by the Davidson County Grand Jury with three counts of aggravated rape, one count of aggravated sexual battery, two counts of rape, and one count of aggravated kidnapping. The State dismissed the kidnapping charge, however, before the jury was empaneled in the defendant's April 13-16, 2013 trial.
James Hunter Johnston, a Wilson County 911 dispatcher, identified a recording of a 911 call he received at 10:37 p.m. on August 14, 2011, from the victim's cell phone, which, he said, contained the sounds of a female in apparent distress, followed by the line going dead. He said that he sometimes receives 911 cell phone calls associated with incidents occurring in adjacent Davidson County.
The forty-year-old victim testified that she worked at one time as a charge nurse in a hospital but had become addicted to prescription medication following her mother's death in 2005, which led to convictions for obtaining a controlled substance by fraud, DUI, and public intoxication. She said she was currently incarcerated for the prescription drug convictions, having violated her probation with her public intoxication conviction. During the first part of August 2011, she stayed with a friend, Steven Mengas, who had taken her in when she was homeless. However, for some reason she could not recall, Mengas became upset with her on Sunday, August 14, 2011. She, therefore, asked him to take her to the home of the defendant, whom she had met a couple of months earlier at a bar in Hermitage and who had offered to let her stay with him until she checked into her scheduled drug rehabilitation program. The defendant lived with his sister and his brother in a condominium in Hermitage, and she had visited with him and his family there on one prior occasion.
The victim testified that after she arrived at the defendant's home sometime in the afternoon of August 14, she and the defendant went together to a bar where they drank some beers and ate dinner. When they left, she asked the defendant to take her back to Mengas' home in Lebanon. She and the defendant had both been drinking, and they got into an argument while traveling in his vehicle on Lebanon Road. She called him a "b, " and he began yelling at her and hitting her in the left leg and left side of her face with his fist. She called 911, but the defendant took her cell phone from her. The defendant got off Lebanon Road and was driving through the neighborhood stopping and starting his car during this time. He then got back on Lebanon Road and began heading west toward Nashville. At some point, he drove behind a strip mall, stopped the car, choked her with both hands around her neck, and ordered her to raise her shirt and lower her pants. When she complied, he began pinching her nipples and touching her "female area."
The victim testified that the defendant continued touching and fondling her during the entire time that he drove her in his vehicle back to his home. During that drive, the defendant "put his hand inside of [her]." When they reached his condominium, she put her clothes back on, and the two of them went inside. Once inside, the defendant retrieved from a bag beside the living room couch a belt and a pump that he used on his penis to achieve an erection. By placing the belt around her head and threatening to choke her, he forced her that night into both performing oral sex on him and into engaging in penile-vaginal intercourse. She did not want to have intercourse with the defendant, and she made it clear to him when they reached his house that she was not interested in him in that way.
The victim recalled that the defendant placed a chair in the hallway to separate the living room from the kitchen area, telling her that when the chair was in that position, "everybody knew not to come in there." She also recalled that the defendant, at some point during the sexual assault that took place that night in the living room, ordered her to lie on her stomach and hit her in the back to force her to comply. She identified photographs of his home as well as photographs of the pump device he used to achieve his erections.
The victim testified that she slept with the defendant in his bed in the loft area of the condominium on the night of August 14. When she awoke on August 15, she felt nauseous and repeatedly threw up. She slept for most of that day and could recall only "[b]its and pieces" of what occurred. She remembered that she took some drugs, including Lortab, Xanax, and, perhaps, Oxycontin, during the time that she spent at the defendant's home, but she could not recall exactly when she took them. She also remembered that the defendant at some point that day took her to Walmart, where he bought her some clothes. They then went to a grocery store, where she remained in the defendant's car while he went inside to buy groceries. The victim testified that she did not try to escape when the defendant left her alone in the car because she was confused and uncertain what to do. She explained that she was scheduled to enter rehab shortly as a condition of retaining her nursing license, had just gotten a DUI, was homeless, and was concerned about her probation status. Thus, she did not want to have any encounters with the police at that point.
The victim recalled that she took a nap when she and the defendant returned to his home. When she awoke, the defendant's sister gave her a Phenergan to keep her from vomiting. That night, the defendant again forced her to perform oral sex on him by threatening once again to choke her with the belt. The victim remembered that the sexual encounter that night occurred in the living room on top of an inflatable mattress on which the defendant had placed a quilt with "little bonnets on it." She said she slept that night on the couch while the defendant slept on the mattress and quilt. At some point, the defendant's brother "poked his head around the corner into the living room, " but that was the extent of her encounter with him.
The victim testified that when she awoke on the morning of Tuesday, August 16, she was, unlike the previous days, sober and that her first thoughts were that she wanted away from the defendant and his home. She said she had told the defendant the previous night that she was menstruating because she was trying to get him to stop touching her. The defendant gave her a washcloth that night to put in her clothes, and on Tuesday morning when she was changing her clothes he came upstairs to check her underwear. When he did not see any blood, he became very angry, told her to get onto her hands and knees, and then put his hand inside her to check for blood but did not find any.
The victim testified that the defendant wanted to go swimming that morning and took her with him to the complex's swimming pool. As he was swimming laps in the pool, she first made an unsuccessful attempt to get the attention of a woman who was sunbathing at the pool and then fled from the pool area to a man and a woman nearby. The victim said she informed the woman that she had been raped and raised her shirt to show her the injuries on her back. She stated ...