Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 13, 2015
Appeal from the Criminal Court for Davidson County No. 2011C2109 Steve R. Dozier, Judge
Ivan Lopez-Hernandez, Nashville, Tennessee, (on appeal); Dawn Deaner, District Public Defender; Aimee Solvay and Katie Weiss, Assistant Public Defenders, (at trial), for the appellant, Ugenio Ruby-Ruiz.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
We will refer to the minor victim in this case by her initials, A.M. She testified that she was 15 years old at the time of trial. Defendant was her stepfather, and she called him "dad." She lived with her mother, her siblings, and Defendant. A.M. testified that Defendant began sexually abusing her when she was eight or nine years old.
A.M. testified that on one occasion, she walked in on Defendant watching pornography on television. She saw Defendant sitting on the couch, and he was masturbating. She testified that Defendant told her to watch it with him, but she went to her bedroom instead. Defendant followed her. She testified that Defendant touched her "private parts" over her clothing. A.M. recalled another incident when she and Defendant were in Defendant's bedroom. She testified, "I guess he just felt like doing it. And like – I guess he just felt like having sex so he told me if I wanted to. And I guess I just didn't want to argue so I just let him." She agreed to have sex with Defendant and unclothed herself. She testified that Defendant penetrated her anally. A.M. specifically remembered the occasion because her mother came home from the grocery store during the incident, and she quickly dressed herself. She testified that Defendant had previously had anal sex with her. She testified that the first time it hurt, and Defendant told her that it would not hurt the next time.
A.M. recalled another incident in the living room when Defendant was watching pornography. She saw "half-naked" girls dressed as clowns touching each other's private parts. She testified that she sat on the couch beside Defendant, and Defendant began touching her private parts over her clothing. She testified that Defendant was touching his penis, and he asked her to touch his penis. Defendant then ejaculated. A.M. testified that Defendant wiped semen off his penis with a paper towel. She testified that Defendant had wiped "sperm" off his penis with a paper towel on several other occasions.
A.M. testified that Defendant also touched her private parts on several occasions in her bedroom, but she did not recall any specific incidents. A.M. recalled that Defendant touched her private parts over her clothing and under her clothing. Defendant would sometimes put his hand under her clothes.
A.M. testified that on occasions when she "would deny him" sex, Defendant would put his penis in her mouth. Defendant also put his mouth on her breasts. A.M. testified that when her family moved to "the yellow house, " Defendant was having sexual encounters with her "two times a week." A.M. recalled the first time Defendant tried to have vaginal intercourse with her. She testified that she and Defendant were the only people in the house. A.M. was laying on Defendant's bed. Defendant told her to take her clothes off because "he wanted to stick it in [her] vagina." She told Defendant that it hurt, and Defendant told her that it would only hurt the first time. A.M. testified that she cried. She testified that her mother arrived home, and A.M. ran to the bathroom because she was bleeding. She testified that her mother believed A.M.'s menstrual cycle had started because she was bleeding.
A.M. recalled another occasion Defendant penetrated her vaginally. She testified that she was watching television in Defendant's bedroom while she waited for her mom to return home from work. Defendant told her that he wanted "to do it again[, ]" and A.M. refused because her mother would be home soon. A.M. testified, "he told me it was going to be quick. So I just got tired of saying no because I know he wouldn't understand." A.M. removed her clothes and spread her legs open. Defendant tried to put his penis in her vagina, and A.M. told him to stop because it hurt. She testified, "I told him, no, because it did hurt and he did it anyways. I guess he didn't care." She believed that she was in the fifth or sixth grade at that time.
A.M. testified about one incident when they were in the living room. Defendant was sitting on the couch, and A.M. was kneeling on the floor. Defendant put his penis in her mouth and then ejaculated onto a piece of paper. A.M. recalled another incident when she was taking a shower, and Defendant got in the shower with her and "showed [her] his penis." Defendant touched A.M.'s private parts and told her to put her mouth on his penis. Defendant told A.M. that he would give her money if she put her mouth on his penis. A.M. testified that the incident ended when she heard her brother in the house.
A.M. testified that "most often" the sexual encounters would happen in Defendant's bedroom. She testified that it happened "a lot." She recalled another incident when she was in fifth grade, and her friend A.T. was visiting. They were wearing their bathing suits in the bathtub, and Defendant came into the bathroom and exposed his penis to them. A.T. left the bathroom, and Defendant then put his penis in A.M.'s mouth. A.M. testified that on two other occasions when A.T. was visiting, Defendant called them over to watch pornography with him. A.M. testified that she asked A.T. not to tell anyone about the incidents.
A.M. recalled an incident when Defendant's niece was visiting. Defendant gave his niece money to leave the room, and Defendant then told A.M. to put her mouth on his penis. A.M. testified that Defendant was sitting on the couch, and A.M. was kneeling on the floor. She also recalled an occasion when her mother went to a party, and A.M. "thought the same thing's going to happen that always happens when nobody's around. . . . Have sex with [Defendant]." A.M. testified that Defendant was mostly having vaginal intercourse with her by that time.
A.M. testified that when she was thirteen years old, her youngest sibling was born. A.M. recalled an occasion when she went into Defendant's bedroom to give the baby a bottle, and Defendant told her to give the baby to another sibling. Defendant then told A.M. that he wanted to have sex, and A.M. took her clothes off and laid on Defendant's bed. She testified, "I couldn't say anything because I would be mad because I would get so tired of it. And so I would just let him do it, what he needed to do." She testified that Defendant penetrated her vaginally, and the encounter ended when her sister knocked on the bedroom door. A.M. also recalled an incident just before her youngest sibling was born when Defendant put his penis into her mouth while they were in the living room. She testified that her sister watched the incident.
A.M. testified that Defendant told her that she "shouldn't tell because he would go to jail and what would happen to [A.M.'s] little brothers." Defendant also told A.M. that she was prettier than her mother and that he had sex with A.M. because A.M.'s mother would not have sex with him. Defendant told A.M. that he loved her and he wanted to marry her. Defendant used his cell phone to take photographs of A.M.'s naked body. He also showed A.M. a photograph of her mother's naked body on his phone and told A.M. that her breasts looked better than her mother's breasts. A.M. testified that Defendant also used his phone to take video of her performing oral sex on him, but he did not show the video to A.M. A.M. also testified that Defendant gave her money, a camera, and allowed her to go places in exchange for sexual acts.
In February 2011, A.M. began running away from home. She recalled an incident on a Sunday in March 2011. She was in the eighth grade. After having sex with Defendant, A.M. left the house to go stay with her boyfriend, F.R., with whom she testified she had a consensual sexual relationship. While she was staying with F.R., she told him that Defendant was sexually abusing her. She stayed at F.R.'s house for approximately one week.
The police came to F.R.'s house. A.M. was hiding in a closet when the police arrived. F.R. encouraged A.M. to tell the police about the sexual abuse. A.M. testified that she was afraid of how her mother would react. She testified that she initially lied to the police about having had sex with Defendant because she was embarrassed. She also did not tell police that she had sex with F.R. She testified that she did not tell police that she took her clothes off when Defendant asked to have sex with her because she did not want them to think that the sexual abuse was her fault. ...