Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Circuit Court for Montgomery County No. 41201018 John H. Gasaway, III, Judge
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Richard Thomas Kelley.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; John W. Carney, District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was charged with eight counts of rape of a child and five counts of aggravated sexual battery for acts committed against his granddaughter, who was twelve years old at the time of the offenses. Prior to trial, the State dismissed the first count of the indictment charging aggravated sexual battery, and the trial court renumbered the remaining counts for the consideration of the jury. At trial, the State presented the testimony of the victim and the victim's mother during its case-in-chief.
The victim's mother testified she and her family moved back into her childhood home around 2009 because her mother had cancer and her father, the defendant, needed help providing the necessary around-the-clock care. The victim's mother testified that both she and the victim's grandparents contributed financially to the household, splitting the rent and utilities. The house had three bedrooms: one was occupied by the defendant and the victim's grandmother, one was occupied by the victim's mother and stepfather, and one was occupied by the victim and her younger sister.
The victim's mother testified that the victim was born on October 25, 1999, and she was around nine years old when they moved into the house. The victim had a good relationship with her grandmother, who helped take care of the children after her convalescence. The victim had a limited relationship with the defendant because she had not spent much time with him.
When the victim's family moved in with her grandparents, the defendant worked at a heating and cooling company, but eventually he started his own tire business, which he first operated out of his home and later out of a shop in a building he rented. The defendant had three employees in the shop. The victim's mother testified that the shop was a one-car bay and that there was a room to the side which was used as storage and where a radio was kept. The shop was in the back of the building and would not have been visible from the road. There was also limited visibility looking into the shop because it was dark and used as storage. The inside of the shop was "like a maze" to navigate through, and employees would sometimes go behind the counter to sleep. The victim's mother acknowledged that the bay door was generally open, and she believed there was no air conditioning.
In 2012, the victim would occasionally go to the defendant's shop with her grandmother. In May or June, the victim's mother noticed that the victim was speaking with the defendant more and spending more time with him. The victim also went on "road calls" with him after the defendant told the victim that her mother used to go on "road calls" when she was young.
On June 8, 2012, the family went on a camping trip to celebrate the birthday of the victim's grandmother. The victim was sharing a tent with her sister and initially did not want to come out of the tent. After her mother spoke to her, she came and sat immediately beside the defendant. The victim's mother was looking at her phone but glanced up to see the defendant put his arm around the victim's shoulder. A few minutes later, she observed him rubbing his arm "all up and down her leg." The victim's mother asked the victim to go back into the tent. She later spoke to the victim about what she had observed and contacted the police as a result of the conversation. The victim last had contact with the defendant on June 10, 2012. The victim's mother testified that the victim's behavior had changed since the abuse and that she was getting into trouble at school and seemed angry.
The victim's mother acknowledged that she had experienced problems with boyfriends in the past. She recalled taking out an order of protection against the victim's father, William Wright, in 2002 because she alleged that the victim's father had choked her while the victim was present. She testified that she had requested to have the order of protection dismissed. The victim's mother also acknowledged lodging a complaint with the Department of Children's Services ("DCS") in 2007 that the victim's father was watching pornography with the victim and giving her alcohol. She denied that this complaint was dismissed and testified custody was taken from the father. She did not ...