Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Appeal from the Circuit Court for Bedford County No. 17521 Franklin Lee Russell, Judge
Donna Orr Hargrove, District Public Defender, and Michael J. Collins, Assistant Public Defender, for the appellant, Loreto Espinosa, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Charles Frank Crawford, Jr., District Attorney General; and Michael Randles and Richard Cawley, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
At the trial, the Defendant was convicted of eighteen counts of aggravated rape of a child. The victim was his stepdaughter, who was two-and-one-half years old at the time of the relevant incidents. The victim's mother testified that she and the Defendant were married at the time of the incidents but that they were currently in the process of getting divorced. The victim's mother testified that she had two children. K.G.,  the victim, was born on February 18, 2010. She and K.G. referred to the Defendant as Lo' and Papi.
The victim's mother testified that in May 2012, she worked at Sanford Pencil Company from 6:00 a.m. to 4:00 p.m. and that the Defendant worked for her uncle at Porter Roofing. K.G. went to daycare when she and the Defendant both worked. She said the Defendant did not work when it rained or was too hot. In June and July 2012, the Defendant did not work for several days because of the hot temperature. She said that on those days, K.G. either went to daycare or stayed with the Defendant. She said the Defendant also cared for K.G. when she had appointments and ran errands.
The victim's mother testified that on August 1, 2012, the Defendant began working at Tyson Foods, that the Defendant worked from mid-afternoon to late in the evening, and that the Defendant took K.G. to daycare that day. She left work at 4:00 p.m., and when she picked up K.G., she noticed that K.G. was not wearing pajamas and that no pajamas were at daycare. She said K.G. always wore pajamas to daycare. They went home and began their normal routine while the Defendant was at work. After giving K.G. a bath that night, she saw K.G. rubbing her vagina. She told K.G. not to do that and said they discussed why K.G. was rubbing that area. She noticed that K.G's pajamas were lying on K.G's bed and that her expensive moisturizing lotion was lying with K.G's pajamas. She said K.G. did not use that lotion.
The victim's mother testified that she called her sister, who suggested she call their preacher. As a result of her conversation with the preacher, she called the police and went to the police station for an interview. There, she told Detective Carol Jean that she was concerned the Defendant was molesting K.G. The detective also interviewed K.G. After they left the police station, they went home to gather a few belongings and stayed with a friend. She took K.G. to Our Kids, a child sexual assault center, the following morning for an examination.
The victim's mother testified that she had not spoken to the Defendant since August 1, 2012. She said the Defendant had written her letters, but she had not responded. The
Defendant wrote her sister and brother-in-law a letter. She identified the letter, the Defendant's handwriting, and his signature. She read the following passage from the letter: "I never meant for any of this to happen and want you to know never have I messed with any other child. I hope they get me the help I need. No man should ever do anything to hurt a child."
The victim's mother testified that after she found her lotion in K.G's bedroom, she sent the Defendant a text message asking why her lotion was in K.G.'s bedroom. The Defendant responded that K.G. asked to use the lotion, which the victim's mother thought was unusual because K.G. had her own lotion and would have asked for it. She said K.G. had never asked to use her lotion.
The victim's mother testified that she worked on most Saturdays but that usually the Defendant did not. When the victim's mother worked on the weekends, K.G. stayed with the Defendant.
On cross-examination, the victim's mother testified that sometimes the Defendant took K.G. to daycare when the Defendant did not work. The Defendant had to have K.G. at daycare before 8:00 a.m. because breakfast was served then. She left for work at 5:30 a.m. and did not wake K.G. before she left. She said the Defendant worked Monday through Friday most weeks and occasionally on Saturdays. The Defendant left for work around 6:00 or 6:30 a.m. and arrived home usually between 2:00 and 5:00 p.m. She usually arrived home at 4:30 p.m. She said it took about thirty minutes to leave work, pick up K.G., and drive home. She did not recall how often the Defendant arrived home first. She said the Defendant sometimes picked up K.G. if he left work before she left work.
The victim's mother testified that she was provided receipts of K.G.'s daycare attendance. She said that between May and August 2012, she looked at her and the Defendant's work schedules and the weather to determine the dates on which the Defendant was alone with K.G. She was unsure if the Defendant sometimes took K.G. to daycare even though the Defendant did not work.
On redirect examination, the victim's mother testified that she knew the Defendant sometimes took K.G. to daycare even though he did not work. She said that on those days, she left for work at 5:30 a.m. and that K.G. had to be at daycare by 8:00 a.m. in order for K.G. to eat breakfast. The daycare was five minutes from their home. She agreed the Defendant had at least two hours alone with K.G. before K.G. had to be at daycare. She and the detective reviewed her and the Defendant's work schedules in order to determine the dates of the alleged incidents. On recross-examination, she stated that she did not know what occurred at home on those days.
Nurse Practitioner Sue Ross, an expert in child sexual assault examinations, testified that she performed K.G.'s child sexual assault medical examinations at Our Kids. K.G. was two and one-half years old at the time of her examination on August 2, 2012. The medical history obtained from the victim's mother showed no previous genital trauma, concerns about sexual abuse, urinary tract infections, chronic diarrhea, blood in the urine or stool, or recent history of painful or hard bowel movements, even though K.G. had taken Miralax for constipation during the previous year. Ms. Ross said the general physical examination showed nothing abnormal.
Ms. Ross testified that when she began the anogenital examination, K.G. became very anxious and repeated, "Please don't hurt me." She said the genital portion of the examination showed nothing remarkable, and she observed a normal genital area given K.G.'s age. Relative to the anal examination, she noted a "denuded area" of soft tissue around the anus. She said, though, that this was a typical finding after a child had a bowel movement. She confirmed that K.G. had a bowel movement just before the examination and concluded that the area was the result of a bowel movement. Ms. Ross observed an anal fissure, a superficial break or crack in the skin, at the six o'clock location of K.G.'s anus. She concluded that the fissure could have been the result of penetrating trauma, including a penis, and that the fissure could also have been the result of "a stooling phenomenon." She said that a hard, painful stool, diarrhea, or any other type of stooling phenomenon could have caused the fissure. She said such occurrences caused fissures in the "midline position." She said that penile penetration could have also caused the type of fissure found on K.G.'s anus.
Ms. Ross testified that the victim's mother suspected digital penetration and that the detective told her that the Defendant admitted to penile penetration of K.G.'s anus. She said she found nothing inconsistent with the Defendant's statement that he engaged in penile-anal penetration. She could not exclude sexual contact as the cause of the fissure to any degree of medical certainty.
Ms. Ross testified that the denuded area and the fissure were not severe enough to warrant medication. She said that the denuded area would probably have healed within twelve to twenty-four hours. She said that usually no obvious signs were visible during an examination for alleged penetration but that horrific injury would produce obvious signs of penetration. She said that 90% of the children examined under these circumstances had normal examinations or mild fissures.
On cross-examination, Ms. Ross testified that although the victim's mother did not report recent hard bowel movements or any associated problems, she could not exclude stooling phenomenon as the cause of the fissure.
K.G. testified that she was age three at the time of the trial. She could not identify Papi but said he had lived with her and her mother. She said Papi hurt her and pointed to her buttocks when asked where Papi hurt her. She said she told her mother that Papi hurt her. K.G. identified an anatomical drawing of a female and pointed to the buttocks, indicating where Papi hurt her.
On cross-examination, K.G. testified that she did not know how many times Papi hurt her. She remembered Papi's hurting her and denied someone told her to say that Papi hurt her.
Shelbyville Police Detective Carol Jean testified that on August 1, 2012, she interviewed separately the victim's mother and K.G. K.G. referred to the Defendant as Papi. She said that after speaking with them, she wanted to talk to the Defendant as soon as possible. The Defendant came to the police station after he left work.
Detective Jean testified that she read the Defendant his Miranda rights. The Defendant waived his rights and agreed to speak with Detective Jean and Detective Sam Jacobs. A recording of the interview was played for the jury. In the recording, the Defendant was confused about why he was at the police station and said he wanted to know what was happening. The Defendant said he had moved to Tennessee from Oklahoma in May 2012. The Defendant was told his wife was concerned about their daughter. He said, "Oh, my God." The Defendant had not talked to his wife because he had been at work. When he asked if he was going to be arrested, Detective Jean said that she did not know what would happen at the conclusion of the interview.
The Defendant stated that he and the victim's mother met in August 2011, dated for three months, decided to live together, married in February 2012, and moved to Tennessee in May 2012. He worked for his wife's uncle until the previous Sunday and began working at Tyson Foods on the day of the interview. He said that their marriage was "up and down" and that they argued. He denied any physical violence and said they argued because he was jealous. He said that K.G. called him Papi and that he was the only father K.G. had known. He said he took K.G. to daycare the previous three days. He said his wife cared for K.G. at night most of the time, but he gave K.G. baths and put her to bed "a lot." The Defendant said K.G. wore pull-up diapers but was potty trained. At this point in the interview, the Defendant said, "So, basically, my wife's thinking that I'm molesting my stepdaughter?" Detective Jean told the Defendant that K.G. was seen playing with herself, that K.G. reported that Papi "does it, " and that K.G. said it hurt. The Defendant said he did not "have an explanation for that."
The Defendant stated that K.G. had a difficult time using the restroom and that he helped K.G. wipe afterward. He said they were in the bathroom or the bedroom when he wiped K.G. He said that if they were in the bedroom, K.G. was lying on the bed and he was standing beside the bed. When asked why K.G. would claim that the Defendant lay beside her on the bed, he could only think of nighttime when K.G. asked him to lie with her.
The Defendant stated that he did not understand the question when asked if he considered "playing with himself" while he wiped K.G. Detective Jacobs told the Defendant that K.G. stated that when the Defendant wiped her, he lay in bed with her and touched her "down there." The Defendant said, "Go ahead and arrest me. I can't, I can't lie to you guys, I'm sorry." The Defendant thought he was under arrest, but the detective told him that he was not. The Defendant responded, "No, because [of] what I'm about to tell you, I will be under arrest."
The Defendant stated that he had "been molesting his stepdaughter . . . for the last month or so." When asked what caused him to "do this, " he said that he was sexually abused as a child by a female cousin and that he did not think he would "get caught." He also stated that his wife was not affectionate and was cold toward him. The Defendant denied attempting to penetrate K.G.'s vagina but said he penetrated her anus with his penis. He ...