Assigned on Briefs February 03, 2015.
Appeal from the Criminal Court for Shelby County No. 1200603 James C. Beasley, Jr., Judge.
Stephen C. Bush, District
Public Defender; and Harry E. Sayle III (on appeal) and Lawrence R. White (at
trial), Assistant District Public Defenders, for the appellant, Ed Loyde.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Teri Fratesi and Cavett Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE.
FACTS AND PROCEDURAL HISTORY
In September of 2010, the defendant had been evicted from his residence and needed a place to stay. He was friends with the victim's mother, and she brought the defendant's plight to the attention of the victim's grandmother, G.H. After speaking with the defendant, G.H. agreed to let him live in her home. At the time, the eight-year-old victim, her mother, her stepfather, her older brother, and her younger brother were all living with G.H. G.H. and the defendant agreed that the stay would only be for a few months, until the defendant could "get back on [his] feet, " and that he would pay G.H. rent. G.H. had seen the defendant at church, and he informed her that he was the musical director for two churches and an aspiring preacher.
G.H.'s home had five bedrooms, and the defendant slept in the living room. He paid rent for the first three months that he lived with G.H. and her family, but he stopped paying rent after November of 2010. G.H. allowed several months to pass before bringing up the issue of the unpaid rent. The defendant informed her that he had not received a settlement from the bank that he was expecting, and he told G.H. that he would pay rent once he received his settlement. By the end of April of 2011, the defendant still had not paid G.H. any rent money, and she evicted him from her home.
Shortly after the defendant left G.H.'s residence, the victim told G.H. that the defendant had abused her. G.H. immediately called the police. Officer Jamie Lambert testified that he received a call on May 1, 2011, regarding a criminal assault at G.H.'s address. He was the first officer to arrive at G.H.'s residence, and he spoke with G.H. and the victim in the living room. G.H. informed him that the victim had been sexually assaulted. When Officer Lambert spoke with the victim, she appeared "[n]ervous and hesitant to speak with [him]." The victim told Officer Lambert that on April 9, 2011, the defendant told her to go to her room, lie down, and remove her clothes. The defendant proceeded to fondle her vaginal area and then penetrated her, and this episode lasted three or four minutes. After the incident, the defendant instructed the victim not to tell anyone what happened and exited the room. She waited until May 1st to report the incident because until that date, the defendant still lived in G.H.'s home, and the victim was afraid of what the defendant might do to her.
After the initial interview with Officer Lambert, G.H. took the victim to the Child Advocacy Center ("CAC"), where a nurse administered a sexual assault exam. The victim also participated in a forensic interview with Letitia Cole. Ms. Cole testified that the victim made an "active disclosure, " which is a full disclosure of abuse. The victim identified the defendant as the perpetrator, and she was able to describe the relationship between herself and the defendant and used an age-appropriate vocabulary in referring to different body parts. She told Ms. Cole that the incident occurred on the couch in her living room. The defendant touched her breast and then told her to go into the living room, take her clothes off, and lie down on the couch.
At trial, the victim testified about the incident that occurred with the defendant. She said that the abuse occurred in G.H.'s living room where the defendant touched her breast and penetrated her vagina with his penis. The victim was in her home with her two brothers and the defendant. Her grandmother was also at the home and was asleep in her room. The defendant instructed the victim's brothers to go outside and play, and he locked the door once they exited the house. When the victim asked if she could go outside as well, the defendant told her she could not. The defendant removed the cushions from the couch, placed them on the floor, and asked the victim to help him to clean the couch. He then placed his hand under her shirt and bra and touched her breast for "two or three minutes." The defendant put the victim on her stomach on the pillows, and he told her to pull down her pants. The victim heard "a buckle of a belt" and "a zipper, " and she felt the defendant on top of her and something "hard" between her legs. The defendant penetrated her vagina with his penis, and his body "was going up and down." She felt his penis inside of her vagina. The victim estimated that the defendant was on top of her for "for fifteen to twenty minutes."
The defendant stopped penetrating the victim when he heard the victim's stepfather at the door. The defendant started "trying to sweep out the stuff on the couch, " and the victim went to her bedroom. When she later went to the bathroom, she felt a "wetness" between her legs that had not been there before the defendant penetrated her. She testified that she was not bleeding after the incident.
The victim could not recall the exact date of the incident, but she testified that it occurred in April, several weeks before her April 21st birthday. She told her older brother about the abuse, but she did not make a disclosure to anyone else until after the defendant had moved out of the residence. Her brother testified that the defendant continued to live with the family for a ...