Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Circuit Court for Montgomery County No. 41100543 Michael R. Jones, Judge
James O. Martin III, Nashville, Tennessee (at motion for new trial and on appeal) and Debra A. Wall and James R. Potter, Clarksville, Tennessee (at trial) for the appellant, John J. Ortega, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; John W. Carney, District Attorney General; and C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
TIMOTHY L. EASTER, JUDGE
This is Defendant's direct appeal from his Montgomery County conviction of aggravated sexual battery. In June of 2011, Defendant was indicted by the Montgomery County Grand Jury for two counts of rape of a child after a five-year-old neighbor, A.S.,  alleged Defendant "lick[ed]" and "pinch[ed]" her vagina.
At trial, the following facts were presented. Defendant lived in a duplex next door to the victim's mother and stepfather in Clarksville. The victim's mother had two children of her own, A.S. and a son. The couple also had an infant daughter together. At the time of the incident, the victim's stepfather was on probation for statutory rape. Next door, Defendant lived with his fiancée and her ten-year-old daughter. Though the couples lived next door to each other, they did not routinely socialize together.
On the afternoon of March 11, 2011, the victim's stepfather helped Defendant work on a car. After they finished the work on the car, all four adults shared some alcoholic beverages together at Defendant's home. After a while, the victim's stepfather felt "tipsy" and decided to lie down in his van, parked in the driveway. The women decided to go to McDonald's to get something to eat, leaving the children in the house alone, asleep in their bedrooms. Defendant was at his house. The ten-year-old was left in charge of the other children.
A.S. and her brother shared a bedroom with bunk beds. The lower bunk had a full-size bed. A.S. slept on the upper bunk, a twin-size bed. When A.S. went to bed, she had on a t-shirt, underwear, and blue jeans. The infant was asleep in another room.
The ten-year-old became concerned when the infant started crying. She started to make the baby a bottle. She noticed that Defendant was in the house behind her while she was making the bottle, but when she finished, Defendant was not there. The ten-year-old went back to her house to look for Defendant. She was unable to locate Defendant, so she woke up the victim's stepfather from where he was sleeping in the van.
The victim's stepfather entered the house and heard "a small little screaming" coming from the children's bedroom. The victim's stepfather claimed that he opened the bedroom door and saw Defendant standing on the lower bunk bed and reaching over into the upper bunk bed. The Defendant had his left hand over the mouth of A.S. and his right hand between her legs. A.S.'s pants and underwear were pulled completely off one of her legs and down to the knee on the other leg. The ten-year-old saw Defendant standing on the lower bunk bed and A.S. sitting on the upper bunk bed, crying. Defendant explained that he was helping A.S. take off her pants. Defendant left the room and the house shortly thereafter.
When the victim's mother got home, she was notified about the incident. She took the child into the bathroom to examine her for injuries. A.S. had what looked "like little cuts all around, almost . . . like bloody spider webs" all around the area of her vagina. A.S. told her mother that Defendant pinched her and that it "really hurt."
At trial, A.S., who was then seven years old, testified that Defendant came into her room and told her to be quiet before he licked and pinched her privates. Defendant asked her to pull her pants down. When she refused, Defendant pulled them down. A.S. stated that as Defendant was licking and pinching her vagina, he asked her whether her Mom or Dad did that to her before. A.S. stated that Defendant covered her mouth when she tried to scream and only stopped when her stepfather walked into the room. A.S. denied that she told another adult shortly after the incident that her mother was present and saw half of what happened to her that night.
No one called the police. The victim's mother administered Monistat cream at the suggestion of Defendant's fiancée, an emergency medical technician. Several hours later, the victim's mother and aunt took A.S. to Gateway Hospital. Once at the hospital, the victim's mother reported that A.S. might have a yeast infection or a urinary tract infection ("UTI") and that she was complaining of itching with urination. At trial, the victim's mother stated that she told the hospital about a possible infection only because it was suggested by Defendant's fiancée.
There was no urinalysis performed on A.S. at Gateway Hospital. When she made allegations against Defendant, A.S. was taken to Meharry Hospital, affiliated with Our Kids, a center that provides assistance to victims of sexual abuse. A urinalysis was not performed at Meharry. A.S. was interviewed at Our Kids clinic by licensed clinical social worker Sandra Gonzalez. A.S. reported that a male neighbor came into her room and hurt her with his fingernails. A.S. described that the man covered her mouth and licked her private area.
During examination of the victim at the hospital, nurses observed blood in the child's underwear as well as on the outside of her external labia. Sue Ross, a pediatric nurse practitioner, testified as an expert in the field of child sexual abuse. According to Ms. Ross, the examination of A.S. revealed a number of injuries to the external labia as well as some internal injuries, including "bruising" on the hymen and area around the hymen. There was also a "partial thickness" tear to the hymen that would have been caused by something "penetrative in nature." In her opinion, the injuries occurred within seventy-two hours of the examination. The injuries were consistent with the report of being hurt with fingernails. Ms. Ross also opined that a urinalysis would have been reasonable upon complaints of itching and burning during urination.
Fingernail scrapings and a DNA sample were taken from both the victim's stepfather and Defendant. Forensic analysis of Defendant's fingernail scraping revealed the DNA profile to be a mixture of DNA from the Defendant and a partial match to A.S. Forensic analysis of the fingernail scrapings from the victim's stepfather revealed only his DNA. The forensic scientist, Michael Turbeville, testified that he could not surmise from what part of A.S.'s body the DNA originated.
Tina Slaven, a detective with the Clarksville Police Department, was assigned to investigate the complaint made by A.S. against Defendant. She contacted Defendant the morning after the incident. Defendant prepared a written statement in which he asserted that the victim's stepfather was in the room with A.S. and that the only thing he did in the bedroom was change the clothes of the child and put her to bed.
Defendant's fiancée testified on behalf of Defendant. She acknowledged that she married Defendant after the allegations surfaced but that the couple was going through a divorce at the time of trial. She recalled A.S. complaining about burning during urination. She was present when the victim's mother looked at A.S.'s private area and noticed that it was red and that the child was scratching at herself She testified that the victim's mother told her the child had had an infection for two to three weeks and even had some bleeding that started two or three days prior to the incident. Defendant's fiancée even claimed that the victim's mother had confided in her that A.S. made sexual assault allegations against the victim's stepfather several months prior to the incident. Defendant's fiancée admitted on cross-examination that she did not tell the investigator any of the things that she testified to at trial. On the night of the incident, Defendant's fiancée witnessed A.S. crying and complaining of pain and bleeding. She also heard A.S. state that Defendant was the perpetrator.
Defendant testified at trial that he helped the victim's stepfather work on a car the afternoon of the incident. They were drinking, and, eventually, the victim's stepfather passed out in his van. While the women were gone to get food, the victim's mother called and asked him to check on the victim's stepfather. Defendant and the ten-year old woke the victim's stepfather. They followed him into his house where he started using a computer. Defendant explained that the baby was crying, and A.S. came out of her room asking for help, so the victim's stepfather asked for help because he was drunk. Defendant went to A.S.'s room and helped her change into her pajamas. The child was not wearing underwear at the time. Defendant looked through a pile of laundry for underwear, found a pair, and helped A.S. put them on before helping her get back into bed. The ten-year old had fixed a bottle for the baby and entered the room while Defendant was helping get A.S. dressed. A.S. slipped as she was climbing into the bed. Defendant caught her. A.S. was asking for her mother. At that point, the victim's stepfather entered the room and asked for the source of the noise. Defendant left the room with the ten-year old. The victim's stepfather left the room, telling A.S. to "shut the hell up." Defendant went back to his own house and was watching television when the ten-year old came in to tell him that he was needed next door. Once he arrived, he was asked about what he did to A.S. Defendant explained that he may have hurt her arm when he caught her as she slipped off the bed. Defendant did not know until the next morning that he was being accused of raping the child.
At the conclusion of the jury trial, Defendant was found guilty of aggravated sexual battery in Count One and not guilty in Count Two. Count One related to the "digital vaginal penetration" of A.S. As a result, ...