Assigned on Briefs March 3, 2015
Appeal from the Criminal Court for Shelby County No. 11-04214 Glenn Wright, Judge
Stephen C. Bush, District Public Defender, and Tony N. Brayton (on appeal) and Trent Hall (at trial), Assistant Public Defenders, for the appellant, Clinton Austin.
Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Terre Fratesi, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
In this case, the Defendant was indicted for rape of a child. The victim, D.J.,  was seven years old at the time of the incident, and the Defendant was related to D.J.'s stepgrandfather.
After D.J. disclosed the alleged sexual contact, she underwent a medical examination and a forensic interview at the Memphis Child Advocacy Center (Center). Less than one month before the trial, the State filed a motion requesting the trial court determine the admissibility of the video-recorded forensic interview pursuant to Tennessee Code Annotated section 24-7-123 (Supp. 2014).
At the motion hearing, Vanessa Roberts, Team Services Director for the Center, testified that she facilitated the Child Protection Investigative Team comprised of the district attorney's office, Shelby County law enforcement agencies, and the Tennessee Department of Children's Services (DCS). She said that the Center was included in the investigative team and that the Center conducted forensic interviews, provided counseling services, and conducted assessments of abuse victims and their service needs. The Center's services were available to sexual abuse and severe physical abuse victims.
Ms. Roberts testified that she was familiar with Tennessee Code Annotated section 9-4-213 regarding the statutory requirements for child advocacy centers and that she had previously testified in other hearings regarding the Center's status as a nonprofit organization. She said the Center employed an executive director who answered to a board of directors. She identified the Center's street address. Relative to the Center's location and layout, she stated that the building was child friendly and had a waiting area and interview rooms designed as playrooms. She said the waiting and interview rooms were separated from the staff's work areas and noted the child-friendly areas had child-size furniture and child-appropriate decor and colors.
Ms. Roberts testified that the Center followed policies and procedures, which complied with the national network of children's advocacy centers guidelines. She said the Center maintained data relative to the types of cases it investigated by victim age, gender, and race, type of abuse, and the services provided by the Center. She said the Center was required to compile this data in order to maintain its nonprofit status, which was obtained before 1998.
Ms. Roberts testified that the Center employed three forensic interviewers, including Teresa Onry, who conducted the victim's interview. Ms. Roberts stated that Ms. Onry had been a forensic interviewer at the Center since 2008 but previously worked as a case manager for DCS. Ms. Onry possessed a degree from Tennessee State University in a field related to social services education, psychology, or similar field of study. Ms. Roberts said the forensic interviewers engaged in peer review, which was supervised by Pat Lewis. Relative to Ms. Onry, Ms. Roberts confirmed that she had completed forty hours of training before she began working as an interviewer and maintained eight hours of supervision. Ms. Onry did not have a criminal history, and Ms. Roberts said Ms. Onry would not have been permitted to work at the Center with a criminal history. Ms. Roberts stated that forensic interviewers at the Center followed a national protocol called RATAC and that the protocol was in effect at the time of D.J.'s interview.
Ms. Roberts testified that the interview rooms were equipped with close-circuit cameras viewable from another location and that nobody was permitted inside the interview room during an interview other than the child and the interviewer. The equipment was maintained to ensure proper working condition.
Trial counsel told the trial court that he had followed the statutory requirements for admission of a video-recorded forensic interview step-by-step during the prosecutor's direct examination of Ms. Roberts and that "all ha[d] been covered." Counsel had no questions for Ms. Roberts. Upon examination by the trial court, Ms. Roberts testified that Ms. Onry had completed a minimum of forty hours of forensic training in traumatized children and eight hours of interviewing children under the supervision of a qualified forensic interviewer.
D.J. testified that she was born on June 7, 2003, and that she was age ten and in the fifth grade. She said that before the hearing, she watched a video recording of her conversation with Ms. Onry. She said that she watched the entire recording and that she recalled talking to Ms. Onry a long time ago. She said that she told Ms. Onry the truth and that she and Ms. Onry were the only people in the room during the interview. She said they discussed someone's touching her and recalled using dolls and drawings to show Ms. Onry where she was touched. She agreed the prosecutor asked her to initial the compact disc of the recording after she viewed it, and she identified her initials on the disc. D.J. understood she would testify at the trial about the incident.
On cross-examination, D.J. testified that Ms. Onry told her their conversation was being recorded and indicated where the camera was located. She confirmed that she and Ms. Onry were the only people present during the interview.
Upon this proof, trial counsel objected to the admission of the recording at the trial on confrontation grounds and noted the victim was not subject to cross-examination when the incident was "fresh on her memory." After viewing the recording and considering the victim's age and maturity, the timing of the statement, the duration of the alleged abuse, the details provided by the victim, the manner in which the interview was conducted, and the relationship of the victim and the Defendant, the trial court found the recording trustworthy and permitted the State to introduce it at the trial.
At the trial, the victim's mother testified that D.J. was born on June 7, 2003, and that D.J. was seven years old in February 2011. She said that on February 12, 2011, she went to work and that D.J. and the victim's brother stayed with their grandmother. The victim's grandmother and uncle were at the home when the victim's mother dropped them off before work. The victim's mother had known the Defendant for about twelve years because he was related to her stepfather, although she did not know the relationship. The victim's mother said the Defendant came to the victim's grandmother and stepgrandfather's home almost every other day in February 2011. Although she did not know the Defendant well, she said he was friendly, respectful, and interacted well with her children. She said that she did not know the Defendant was going to be at the home on February 12 but that this did not cause her to have concerns.
The victim's mother testified that after she left work, she went to her mother's home to pick up her children on February 12, 2011. Her stepfather, her brother, the Defendant, and her children were there, although she did not see D.J. Her mother was not home. The victim's mother entered the home, called out for D.J., and looked for D.J throughout the house. She saw the Defendant leaving the bathroom and noticed he "pulled the door shut and was fixing his pants, fidgeting with his pants." She thought the Defendant's conduct was unusual because he should have "done that" while inside the bathroom. She noticed the Defendant turned off the bathroom light. She overheard the Defendant tell her stepfather that he was going to walk to the store. She did not recall if she and the Defendant made eye contact or if the Defendant spoke to her. She recalled, though, that the Defendant did not mention D.J.'s whereabouts.
The victim's mother testified that she walked to her brother's bedroom, that she sat down, and that she saw D.J. leaving the bathroom. She noticed D.J. was pulling and "fixing her pants." The victim's mother said that she watched the bathroom door after the Defendant walked out and that she saw the bathroom door from her brother's bedroom. She did not see D.J. enter the bathroom, which was small, only had one entrance, and was the only bathroom in the home. The victim's mother called for D.J. from the bedroom. She asked D.J. if the Defendant was in the bathroom with her, and D.J. said yes. Upon questioning, D.J. also told her that the Defendant touched her.
The victim's mother testified that D.J. spoke to her in a low voice, initially did not want to talk about the Defendant, and was scared because she thought she was in trouble. The victim's mother became angry and told one of her family members to "get a gun, " although nobody in the home had a gun. She said that when the Defendant returned from the store about fifteen minutes later, she confronted him. The Defendant denied touching D.J., and she told the Defendant that she saw him leave the bathroom. The Defendant denied being in the bathroom and seeing anyone in there. The victim's mother called the police and took D.J. to the hospital for an examination.
The victim's mother testified that D.J. underwent a forensic interview at the Center. Although the victim's mother was not allowed to be present for the interview, she observed from an adjacent room. She said D.J. did not want to participate in the interview. She said D.J. had been consistent about the Defendant's touching her.
On cross-examination, the victim's mother testified that the forensic interview occurred a few days after the Defendant's arrest, although she did not recall the number of days. She agreed she and D.J. had discussed the incident once or twice since the Defendant's arrest. She said she did not suspect the Defendant was capable of something like this before February 2011.
D.J. testified that she was age ten and in the fifth grade at the time of the trial. D.J. identified several family members and the location of her grandmother and stepgrandfather's home. She spent a lot of time at her grandmother's home, and she recalled two times when the Defendant was there.
D.J. testified that on the last day the Defendant was at her grandmother's home, she was in the bathroom with the Defendant when her mother returned to pick her up. She had used the bathroom, and the Defendant entered the bathroom and closed the door. She said the Defendant sat on the toilet after he "unzipped" his clothes. She said that she attempted to leave the bathroom but that the Defendant placed his hands around her waist and pulled her toward him. She said that the Defendant placed her on his lap, that she and the Defendant faced each other, that her legs were open, and that he removed her clothes. The bathroom light remained on during the incident. She said that she saw the Defendant's penis, which she referred to as his "thing, " and felt it on her private area, which she referred to as her "thing, " when he placed her on his lap. She said the Defendant's penis was erect but did not touch the inside of her private area. She denied the Defendant attempted to insert his penis in her private area. She said that the Defendant did not talk during the incident but that he touched her neck with his lips. She told the Defendant to stop, but he did not say anything and continued to touch her private area with his penis.
D.J. testified that the Defendant stopped touching her about the time her mother arrived, although she did not realize her mother had arrived. She said she and the Defendant stood up, and the Defendant walked out of the bathroom as he zipped his pants. D.J. remained in the bathroom after the Defendant left, and she did not hear the Defendant speak to anyone after he left. D.J. learned her mother was home when she left the bathroom and saw her mother in her uncle's bedroom. She walked to her mother and told her what happened.
D.J. testified that the Defendant also touched her private area with his hand. She told her mother that the Defendant placed his hands down her pants and between her legs. She felt more than one of the Defendant's fingers between her legs and on her private area but denied the Defendant inserted his fingers in her private area. She said the Defendant's touching her with his fingers occurred before he touched her with his penis.
D.J. testified that the Defendant's touching her made her nervous and unsure what to do or say. She denied, though, that she was scared to tell her mother. She recalled the medical examination and the forensic interview and said her mother was not in the room when she was interviewed. She agreed that during the interview, she used dolls to demonstrate what the Defendant did to her. She identified the compact disc of the recording and ...