Session October 9, 2014.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed. Appeal from the Court of Criminal Appeals, Criminal Court for Davidson County. No. 2012-B-1224. Monte Watkins, Judge.
Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and Kristin Neff and Aimee Solway, Assistant Public Defenders (at trial), Memphis, Tennessee, for the appellant, Jeremy Wendell Thorpe.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Leslie Price, Senior Counsel; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Sarah Blood, Assistant District Attorneys General, for the appellee, State of Tennessee.
JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, GARY R. WADE, and HOLLY KIRBY, JJ., joined.
JEFFREY S. BIVINS, JUSTICE.
We granted the application for permission to appeal of Jeremy Wendell Thorpe (" the Defendant" ) in this case to determine whether the trial court properly included a jury instruction for criminal attempt as a lesser-included offense of sexual battery by an authority figure. If we answer in the affirmative, we also must determine whether the evidence presented at trial was sufficient to support the Defendant's conviction for criminal attempt to commit sexual battery by an authority figure. After a thorough review of the record and applicable law, we hold that the trial court properly included a jury instruction for criminal attempt as a lesser-included offense of sexual battery by an authority figure and that the evidence is sufficient to support the Defendant's conviction. Accordingly, we affirm the decision of the Court of Criminal Appeals.
Factual and Procedural Background
The Defendant was convicted by a jury on one count of criminal attempt to commit
sexual battery by an authority figure. He subsequently appealed to the Court of Criminal Appeals, challenging the sufficiency of the evidence supporting his conviction. As part of that challenge, he claimed that the trial court erred by including criminal attempt to commit sexual battery by an authority figure in its jury instructions as a lesser-included offense of sexual battery by an authority figure. The Court of Criminal Appeals affirmed the judgment of the trial court. State v. Thorpe, No. M2012-02676-CCA-R3-CD, 2013 WL 5436701, at *10 (Tenn. Crim. App. Sept. 27, 2013).
This case arises out of alleged sexual misconduct by the Defendant upon the daughter (" the victim" ) of his girlfriend (" Mother" ) at the time. A Davidson County Grand Jury indicted the Defendant on two counts of aggravated sexual battery and one count of sexual battery by an authority figure. The Defendant proceeded to trial on July 23-25, 2012. At trial, the State presented proof from the following witnesses: the victim; Mother; Diane Smith, the victim's guidance counselor at Donelson Middle School; and Detectives Jeff Weaver and Jason Mayo with the Metropolitan Nashville Police Department (" MNPD" ).
The victim testified that she was thirteen years old during the summer of 2010, when the events underlying the Defendant's conviction occurred. The victim stated that she had a brother (" Brother" ) who was approximately four years older than she. During the summer of 2010, the victim and Brother were living in an apartment in Hermitage with Mother and Mother's boyfriend, the Defendant. Mother had been dating the Defendant since 2008, and the Defendant had lived with the victim's family for most of that time. At first, the victim got along with the Defendant, but she noted that Brother did not like him. According to the victim, soon after the Defendant moved in with them, the Defendant " whupped" her and confiscated belongings from her and Brother.
Mother described the victim's relationship with the Defendant as " strained," stating, " My kids just never liked him." When Mother was at work, the Defendant was responsible for watching and disciplining her children. She denied, however, that she ever gave the Defendant permission to spank the victim.
The victim recalled one occasion when she was lying on her stomach on the couch in her living room " and [the Defendant] hit [her] on the butt." When this happened, the victim " made it known" to the Defendant that she was uncomfortable with that behavior. According to the victim, Mother was in the room but did not see the Defendant do anything and did not say anything to him about the behavior. On another occasion, when Mother was not home, the Defendant slapped the victim on her " butt" while she was washing dishes. The victim confirmed that both of these incidents occurred before her thirteenth birthday. Prior to these incidents, the victim had been taught that no one should touch her in places that " a bikini would cover."
During the summer of 2010, the Defendant was unemployed, and Mother's work schedule on the weekends was from 7:00 p.m. until 7:00 a.m. every night. At some point during that summer, Mother and Brother had an argument that resulted in Brother's going to live with his grandmother in Memphis. Mother agreed that the argument involved the Defendant to some extent, but she could not remember the details of the argument. When the victim learned that Brother was going to live with their grandmother, she asked to go as well, but Mother told her that she was too young, and the Defendant said, " [A]bsolutely not." When Brother left, the victim was angry with both Mother and the Defendant and felt " [u]nsafe" living with the Defendant.
After Brother moved out of the family residence, the Defendant began exhibiting behavior toward the victim that " a boyfriend would do," such as rubbing her feet. Over time, the Defendant began kissing the victim's cheeks, which eventually led to his kissing her on her mouth and putting his tongue inside her mouth. When the Defendant stuck his tongue in the victim's mouth, the victim told him that such behavior was " not normal." The victim also told the Defendant, " If I'm going to have any kind of relationship with you it should be father/daughter, not sexual or anything of that nature." When the victim said this to the Defendant, the Defendant responded by putting his tongue in her mouth again. In other instances, when the victim would resist the Defendant's advances, the Defendant would punish her by taking away her belongings, such as her computer, phone, clothing, and shoes. To that end, she recalled multiple instances in which the Defendant confiscated her cell phone for rejecting him.
According to Mother, once Brother moved out, Mother observed the victim and the Defendant interacting more, which was something she had desired for them. Therefore, she did not see anything strange about their relationship. On one occasion in August 2010, however, Mother had fallen asleep on the couch with both the victim and the Defendant in the room. When she woke up, neither of them were around. Eventually, Mother observed the victim and the Defendant walk out of the victim's bedroom. Mother questioned both of them, and the Defendant told her that the victim was telling him what she planned to wear to school the next day. She did not recall ever seeing the Defendant's " smacking" the victim's rear end. Mother explained, however, that she had bronchitis over the summer and spent a lot of time sleeping when she was home.
On Friday, August 27, 2010, while Mother was at work, the victim received a text message from the Defendant asking her what she was wearing. She subsequently received another text message from the Defendant that stated, " I want to kiss on them thighs when I get back." The victim confirmed that the Defendant had said something similar to this in the past. The victim's response to this text message was " [O]kay," but she expressed at trial her concern that, had she rejected him, he would have taken away more of her belongings or torn her " down verbally." Shortly thereafter, she received another text message from the Defendant that stated, " Go put on some shorts," to which she again responded, " [O]kay." The Defendant later sent a text message that stated, " Easier to get to things that way."
When the Defendant returned home that evening, the victim had not yet changed into shorts and instead was wearing sweat pants. According to the victim, the Defendant became angry, yelling at
the victim to go change and accusing her of making " everything so difficult." As a result, the victim changed into shorts, and the Defendant " came into [her] room and he kissed . . . [her] inner thighs." She explained that his hands were holding her outer thighs and that he kissed up to her bikini line. The victim cried while the Defendant kissed her. After he finished, he told her, " I know it hurt you but it's okay."
Prior to school on the Monday following this incident on Friday, the Defendant demanded that the victim change out of the shorts she was wearing and into " some big pants." The victim was late for school because she had to wash and dry the pants that the Defendant wanted her to wear. On cross-examination, the victim acknowledged that on Sunday, August 29, 2010, the Defendant and Mother went shopping for clothes for the victim because Mother believed that the victim's clothes were too tight. Mother recalled that, on that morning, she awoke to the Defendant's telling her about an argument he had with the victim in which he asked her to change out of the clothes she was wearing that were too small.
The victim testified that she mostly stayed in her room for the rest of the weekend but eventually contacted her grandmother about the situation. Her grandmother instructed the victim to tell a counselor. The victim also told her friend about the incident, who suggested that she tell someone at school. Accordingly, on the Monday following the incident on Friday, the victim went with her friend to speak with the school guidance counselor. The victim prepared a written letter because she " knew [she] was going to fall apart."
Diane Smith, a counselor at Donelson Middle School, testified that she had worked with children as a teacher or counselor for thirty-three years. On Monday, August 30, 2010, the victim came to her office with a handwritten note. According to Smith, the victim told her that " when her brother was away from home that the [Defendant] would ask her to put on some white shorts usually. And he would start kissing between her legs up in her inner thighs." As the victim told Smith this information, the victim cried and said that " she just couldn't . . . do this any longer and she knew it was going to get worse."
After the victim finished telling Smith what happened, Smith reported it to the Department of Children's Services (" DCS" ) and to the school's resource officer. When Smith asked the victim whether she had told Mother, the victim stated that she was afraid Mother " would not believe [her] and take the side of the [Defendant]." In general, Smith perceived the victim to be " normal" for her age in that " [t]here was a lot of innocence to her [and] a lot of sweetness to her."
After speaking with Smith, the victim met with two detectives from the MNPD. Detective Jason Mayo, with the Sex Crimes Unit of the MNPD, testified that, when he first met with the victim on August 30, 2010, the victim told him that " she was being sexually harassed by her mother's boyfriend." He continued, " [The victim] said that about three weeks ago she started receiving sexually charged text messages from [the Defendant]. She said that he had kissed her on her inner thigh. She said that he had smacked her on the butt and rubbed and kissed her feet." The victim also told Detective Mayo that, when she would resist, the Defendant would confiscate some of her belongings such as her clothes, computer, and mobile phone. Additionally, the victim stated that the Defendant
" basically would cuss her out and tell her what a bad person she was if she didn't do what he asked her to do." The victim provided Detective Mayo with her mobile phone, which she told him contained text messages from the Defendant. Detective Mayo denied that the victim seemed " overly sexual" for a thirteen-year-old girl.
Detective Mayo agreed that the text message records, which had been introduced as evidence through Detective Jeff Weaver from the Tech Unit of MNPD, indicated that the victim sent 776 text messages to the Defendant in August of 2010. These text messages included the following messages to the victim from the Defendant: " What do you have on" ; " I wanna kiss on them thighs when I get back" ; " You gonna put on some shorts" ; and " Easier to get to them that way." Although most of the conversations between the Defendant and the victim were initiated by the ...