Court of Criminal Appeals of Tennessee, Nashville
Session Date January 14, 2015
Direct Appeal from the Criminal Court for Davidson County No. 2008-D-3887 Monte Watkins, Judge
Patrick T. McNally, Nashville, Tennessee, for the appellant, Heng Lac Liu.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Glenn Funk, District Attorney General; Leticia Alexander and Deborah Housel, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from the victim's allegations that the Defendant, an acupuncturist, sexually assaulted her on July 4, 2008. Based on these allegations, a Davidson County grand jury indicted the Defendant for two counts of rape and two counts of sexual battery. At the Defendant's trial, the following evidence was presented: Alma Melendez testified that she was a native Spanish speaker, who hailed from Guatemala, but that she had learned some English since moving to Nashville seven years ago. She said that she lived with her husband, two young children, and "a lady." Mrs. Melendez said that she was not working at the time of the trial but that, before 2008, she had worked as a housekeeper.
Mrs. Melendez testified that the Defendant had raped her on July 4, 2008, while she was at his clinic. Mrs. Melendez described the events leading up to the rape, saying that in 2008 she had been suffering from back pain for almost two years. She had seen four doctors, the last of whom told her that the pain was related to her sciatic nerve. She decided to seek the help of a chiropractor. Mrs. Melendez recalled that the treatment of the chiropractor took the pain from her back to her leg. While she was in treatment she had difficulty sitting, could not wear a belt or walk in heels, and could not push a grocery cart. Mrs. Melendez said that, while she was under the care of her doctors for her back pain, she became pregnant. She stopped the chiropractic treatment because she was afraid that it would affect her baby. After she gave birth, she had difficulty carrying her newborn baby and had to walk on her tip toe on her right foot. Members of her church recommended "Dr. Lee, " who was an acpuncturist and had helped other members of the church.
Mrs. Melendez said that she inquired further about "Dr. Lee, " but the church members told her that she could find him in the yellow pages. Mrs. Melendez said that she and her husband looked in the yellow pages and found "Dr. Liu, " an acupuncturist who worked in close proximity to their house. Mrs. Melendez described her pain as "more than ten, " on a scale of one to ten, when she went to see Dr. Liu, the Defendant, on July 4, 2008. She said that her appointment was close to noon that day and that her husband and son, who was six months old, accompanied her to the Defendant's office.
Mrs. Melendez said that there was a receptionist and a man seated to her left while she sat in the waiting room. Mrs. Melendez saw the Defendant walking toward her, and he called for she and her husband to follow him into his office. Once inside the Defendant's office, Mrs. Melendez's husband interpreted for her, translating what the Defendant was telling her. Mrs. Melendez and her husband told the doctor about Mrs. Melendez's symptoms. The Defendant showed her a diagram of the human body, asked her on which side she was hurting, and explained to her how acupuncture consisted of putting needles in her lower back area on the right side. Mrs. Melendez did not recall the Defendant telling her that she would be required to remove her clothing.
Mrs. Melendez testified that the Defendant then told her husband to stay in his office with the baby while he took Mrs. Melendez to an examination room. Mrs. Melendez saw in the room a chair and a stretcher type bed. Mrs. Melendez said that the Defendant handed her a towel, and swatted her on the behind. He told her to take her pants off. Mrs. Melendez said that she thought that maybe the Defendant's contact with her "behind" was an accident. She took her pants off and placed the towel that he had given her around her waist.
Mrs. Melendez testified that, when the Defendant returned, he was not looking at her face but was looking in another direction. Mrs. Melendez asked the Defendant if she needed to remove her shirt also because it was long, and the Defendant said, "Yes, yes." Mrs. Melendez said that she removed her blouse and that she felt uncomfortable with a towel around her waist and only her bra and panties on. Mrs. Melendez said that the Defendant indicated that she should get on the stretcher bed face up, so she did. He then removed the towel covering the lower half of her body. Mrs. Melendez said that the Defendant then "took hold of [her] panties and took them off of [her.]" Mrs. Melendez said that she did not question him and repeated to herself "This is for my health."
Mrs. Melendez testified that the Defendant repeatedly opened and closed her legs and told her to "relax." She said she was scared to grab her clothes and leave because she thought her husband, who did not have immigration documents, might confront the Defendant. She was scared that they might be deported if police were notified.
Mrs. Melendez testified that the Defendant put his hand "on top of [her] vagina." She noticed that he was "sweating" and "laughing." She said he rubbed her vagina "a bunch of times" and "opened her legs up again." He then asked her to turn over and massaged the backside of her legs. He showed her a needle and then put the needle in her back. The Defendant then brought a lamp to heat the needles and laid a towel across her body. She said the Defendant turned on some "Chinese music."
Mrs. Melendez said that the Defendant left and returned with her husband. Mrs. Melendez was face down on the table, looking through a hole, when her husband entered. The Defendant told Mrs. Melendez's husband that he was going to take the needles out and then massage Mrs. Melendez to take away the pain. The Defendant and Mr. Melendez both exited the room. Mrs. Melendez laid on the bed for thirty minutes. She said that she wanted to scream but she was afraid that no one would believe her that the Defendant had acted inappropriately towards her.
After thirty minutes, the Defendant returned alone. He removed the needles, got a bottle of oil and began to massage her legs. The Defendant massaged her "butt cheeks, " and then he stuck his finger into her anus. Mrs. Melendez said that she was "startled" and said "it's hard for me, " which, at the time, she thought meant "it was hurting me." The Defendant told her to "relax, " and did not remove his finger. The Defendant then "simply stopped" touching her anus and asked her to get on her knees on the ground with her "chest towards the ground." She said she could not get into the position the Defendant demonstrated for her, but she attempted to do so. He unhooked her bra and told her to turn around. Mrs. Melendez said that she was naked at this point when the Defendant told her to turn around.
Mrs. Melendez said that the Defendant began to massage her legs again and "put his hand on [her] vagina." He opened and closed her legs and told her to relax. The Defendant, she said, began to rub her breasts while he was still "sweating" and "laughing." The Defendant observed that one of her breasts was bigger than the other and asked her why. She said that she did not know. The Defendant told her that he had concluded his examination of her and left the room.
Mrs. Melendez said that she put her clothes back on and left the room. She went to the Defendant's office, where her husband and baby were waiting. The Defendant told Mr. Melendez that Mrs. Melendez should return the following day. The Defendant also told Mr. Melendez to take Mrs. Melendez to the doctor because one of her breasts was larger than the other. The Defendant then sold medicine to Mrs. Melendez. Mr. Melendez went to the receptionist area to pay for the medication, while the Defendant and Mrs. Melendez remained in his office. Mrs. Melendez said that the Defendant asked Mrs. Melendez how to say "I love you" in Spanish. She said that she answered him. He told her that if you said "I love you" to a person in Chinese they would "hit you in the face." Mrs. Melendez said she was not comfortable with this conversation and thought, "Oh, this man is a criminal." Mrs. Melendez said that the Defendant asked her if she had sex with her husband and told her that he had heard "that Mexicans have sex three times a day." He then asked her if her husband was strong. She did not respond to him. Mrs. Melendez said the Defendant then asked her "How many inches is your husband?" She said that, at that point, she got up and went to the receptionist area and told her husband that she was going to pay and that she wanted to leave. She said she paid $120.00 for the treatment and medication. The Defendant, she said, reminded Mr. Melendez that Mrs. Melendez needed to return his office the following day.
Mrs. Melendez testified that, when she got into the car with her husband, she told him that she was never going to return and started crying. He asked her what was wrong, and she told him that the Defendant had abused her. He asked her why she did not run or scream, and she told him that she was in shock. She said that she did not contact the police because she was afraid she was going to be deported. She testified that she later called the church member who had recommended the doctor, and he told her that he had recommended "Daniel Lee" and not the Defendant.
Mrs. Melendez said that, after her treatment with the Defendant she felt better, could sit down more, and was in less pain. Due to this improvement, Mr. Melendez called Dr. Daniel Lee to schedule an appointment. Mrs. Melendez brought a friend with her, Olga Alduenda, and asked that Mrs. Alduenda remain with her.
Mrs. Melendez described her appointment with Dr. Lee. She said she filled out a form when she arrived with Mrs. Alduenda. Also present was Mrs. Alduenda's son and Mrs. Melendez's son. She was then called into a room, where Mrs. Alduenda described Mrs. Melendez's health problems to the doctor. Dr. Lee examined her with her clothes on and determined where she was in pain. He showed her a body map. He then put needles into her right leg. Mrs. Melendez said that she did not remove her clothing but simply lowered her pants a little bit at the waist.
Mrs. Melendez said she told Mrs. Alduenda that Dr. Lee's treatment was much different than the Defendant's treatment of her. She then told Mrs. Alduenda that the Defendant forced her to remove her clothing. Later, while they were in Dr. Lee's office, Mrs. Melendez told her the entire story of what had happened at the Defendant's office. She asked Mrs. Alduenda to tell Dr. Lee what had happened at the Defendant's office. Dr. Lee and Mrs. Alduenda encouraged her to contact the police.
Mrs. Melendez said that she contacted the police the following day, July 8, 2008. She spoke with a female officer and attempted to explain to her what had happened. She told the female officer and two other male officers, one of whom spoke Spanish, what had happened.
Mrs. Melendez said that she sought therapy after this incident. In therapy, she learned of a "U-visa, " which is a visa given to people who have been the victims of a crime. She also filed a civil suit against the Defendant. Mrs. Melendez said that she never consented to the Defendant rubbing the top of her vagina, rubbing her breasts, or penetrating her anus with his finger.
During cross-examination, Mrs. Melendez testified that she understood that it was "very important" to be truthful during her interview with detectives. She agreed that she did not tell detectives about the other man seated in the Defendant's office when she arrived. Mrs. Melendez agreed that the Defendant attempted to explain to her what treatment she would be receiving before he treated her. He used charts of the body in his attempt to explain. She said that neither she nor her husband told the Defendant that she was in the country illegally.
Mrs. Melendez agreed that the Defendant's behavior was "unexpected" in multiple ways, including when he slapped her behind, told her to take her pants off, told her to take her blouse off, etc. She agreed that the Defendant placed needles into her back and that he invited her husband to come and see the needles in her back. She agreed that the Defendant left her alone with the needles in her back for thirty minutes while quiet music played. Mrs. Melendez said that she had testified that, during this time, she did not say anything because she was afraid that "they were not going to believe [her]." She then said that her husband would have believed her but expressed concern that he might have engaged in a physical confrontation with the Defendant. She agreed that she went back to the Defendant's office with her husband and paid for the Defendant's services.
Mrs. Melendez agreed she told Detective Elliott that she reported the Defendant's conduct to the Health Department. She also told him that she was not pursuing that claim because the Health Department was going to make her pay for the cost of pursuing the claim. She disputed that this was untrue and said that she had been told that she would have to pay for the processing of the claim at the Health Department.
Mrs. Melendez attempted to explain inconsistencies between her trial testimony and her statement to detectives. The Defendant's attorney noted that the two accounts differed about the time when she told Mrs. Alduenda about the Defendant's conduct, the time that she made her appointment with Dr. Lee, and the time she learned Dr. Lee's name from the "brother" at her church. Mrs. Melendez agreed that she had previously made a statement that she had the name of Dr. Lee before she and her husband looked in the yellow pages. She had previously told someone that she was confused by the names Dr. Lee and Dr. Liu in the yellow pages.
Mrs. Melendez agreed that, at the time of trial, she and her husband had obtained U-visas. She agreed that the only reason she and her husband were allowed to stay in the country was because she was a victim in this case. She said that she also had a plaintiff's lawyer who was pursuing a lawsuit against the Defendant for twelve million dollars. Her attorney in that lawsuit had referred her to Dr. Jorge Boero. Mrs. Melendez agreed that her first lawsuit was filed by a Sean Lewis, but she said she never met with him. He non-suited the case, and then a second lawsuit was filed by Mario Ramos. Mrs. Melendez said that she did not know that her lawsuit alleged that she had suffered "medical expenses" and "lost wages" as a result of her alleged injuries. She agreed she did not have any medical expenses and that she was not working at the time of her contact with the Defendant.
During redirect examination, Mrs. Melendez testified that she had no legal training and that the lawsuit was filed in English. Mrs. Melendez said that she did not think to file a civil lawsuit until someone from her church, Alma Austin, mentioned that they had seen a change in her and encouraged her to do so.
During further cross examination, Mrs. Melendez testified that her attorney, Mario Ramos, was Mrs. Austin's brother-in-law. Mrs. Melendez said that she was unaware that Mr. Ramos advertised that his law practice included filing applications for U-visas. She denied, however, that he helped her with her U-visa. She said that, when she met with him, she told him that she was in the country illegally. She said that he told her about U-visas. She explained, however, that she had already applied for her U-visa before she met with Mr. Ramos. Mrs. Melendez denied knowing that abusive sexual contact would qualify her for a U-visa. She said she was not aware that it was listed as the first thing on Mr. Ramos's website. She stated that she was aware, however, that her husband would qualify for a U-visa if she obtained one. Mrs. Melendez testified that she understood that her civil trial was on hold pending the outcome of the criminal trial. Mrs. Melendez testified that, after the conclusion of the criminal trial, she intended to seek permanent residency in the United States.
Kim Laymance, an officer with the Metropolitan Police Department, testified that she was working patrol on July 4, 2008. She and another officer, Larry Carter, responded to a rape call at Mrs. Melendez's home. She found Mrs. Melendez crying, upset, and looking ashamed to talk. Officer Carter, who spoke Spanish, attempted to discern what had taken place, but he was unable to do so. Officer Laymance said that they, therefore, called a friend of Mrs. Melendez, who interpreted for the officers.
Officer Laymance testified that, through the interpreter, she learned that Mrs. Melendez had been assaulted at a doctor's office. The officer described Mrs. Melendez as "ashamed, " making it hard for the officer to "get a lot out of her." Officer Laymance recounted what Mrs. Melendez had told her, and it comported substantially with Mrs. Melendez's trial testimony. Officer Laymance testified that, based upon Mrs. Melendez's allegations, she contacted the sex crimes division of her department.
During cross-examination, Officer Laymance testified that her incident report indicated that Mrs. Melendez was not employed at the time she reported the incident. Officer Laymance agreed that the incident report she took from Mrs. Melendez indicated that the Defendant "slapped . . . [her] on the butt, " before telling her to get on the table. While she was on the table, the Defendant told her to "roll over" and then massaged her "on her breasts." The report indicated that Mrs. Melendez stated that the Defendant started touching her "in the vagina area" and that Mrs. Melendez then told the Defendant that "she had to go and got dressed and left." Officer Laymance said that she did not make an arrest in this case and had no further involvement after taking Mrs. Melendez's report.
During redirect examination, Officer Laymance testified that she obtained the information from Mrs. Melendez through an interpreter. She said that she never went over the report with Mrs. Melendez, and Mrs. Melendez never signed the document.
Olga Alduenda testified that she had lived in Nashville for seventeen years and that she met Mrs. Melendez in 2006 through the church that they both attended. In 2008, Mrs. Alduenda, who was very pregnant, noticed that Mrs. Melendez, who was newly pregnant, was limping. Mrs. Melendez explained that she suffered pain from her hip all the way to her heel. Mrs. Melendez told Mrs. Alduenda that she had been multiple places to determine what was wrong with her and that she was spending "a lot" of money attempting to fix the issue with no resolution. Mrs. Alduenda told Mrs. Melendez about acupuncturist Daniel Lee, whom Mrs. Alduenda was seeing for treatment. Mrs. Alduenda did not give Mrs. Melendez Dr. Lee's information that day because her cell phone was broken.
Mrs. Alduenda said that, a few days later, Mrs. Melendez called her and asked for Dr. Lee's information, which Mrs. Alduenda provided to her. In the same conversation, Mrs. Melendez asked Mrs. Alduenda to accompany her to the appointment. Mrs. Melendez told Mrs. Alduenda that she had been to another acupuncturist but "didn't like it."
Mrs. Alduenda met Mrs. Melendez at Dr. Lee's office. Mrs. Alduenda noticed that Mrs. Melendez seemed sad so she asked Mrs. Melendez how she was feeling. Mrs. Melendez responded that her pain went "all the way to the floor again" and that it was too hard for her to "carry [her] baby with the car seat." Mrs. Alduenda and Mrs. Melendez went into the office together and registered her. When they were brought to the treatment room, Mrs. Alduenda reassured Mrs. Melendez that everything would be fine and that Dr. Lee had been treating Mrs. Alduenda for fifteen years.
Dr. Lee, she said, asked Mrs. Melendez about her symptoms. He briefly examined Mrs. Melendez and then asked her to lift up her pant leg. He placed some needles close to her feet. He then asked her to pull down the waist line of her pants and put some needles there also. After placing these needles in her back, he told them that he was going to leave and then return. Mrs. Alduenda said that, when the doctor left the room, Mrs. Melendez started crying. Mrs. Alduenda asked her what was wrong, and she told her that "Something went really wrong with the other doctor." Mrs. Melendez told her that the other doctor asked her to undress and that she complied. Mrs. Alduenda said Mrs. Melendez told her that the other doctor never put needles in her but that he only massaged her. Mrs. Alduenda said that Mrs. Melendez kept crying and told her that the other doctor had touched her breasts and massaged her "vagina area." Mrs. Alduenda asked Mrs. Melendez how she responded, and Mrs. Melendez said "I said nothing. I was just, you know, crying. I didn't know what to do."
Mrs. Alduenda testified that Dr. Lee returned and asked Mrs. Melendez why she was crying. Mrs. Alduenda told Dr. Lee about Mrs. Melendez's other experience with the Defendant. Dr. Lee said that Mrs. Melendez was not properly treated and that Mrs. Melendez should make a police report. Mrs. Alduenda encouraged Mrs. Melendez to report it, but Mrs. Melendez said that she should forgive the other doctor. Mrs. Alduenda asked Mrs. Melendez if she would want another women to have to experience the same thing. When Mrs. Melendez said, "No, of course not, " Mrs. Alduenda told her that she should report it then.
Mrs. Alduenda said that Dr. Lee asked Mrs. Melendez more questions, and Mrs. Melendez told him that the Defendant had placed needles in her back after he massaged her. Dr. Lee also encouraged Mrs. Melendez not to drink the medicinal seeds that the Defendant had provided to her, explaining that she could not be sure what they were. Mrs. Melendez expressed her inability to contact police, saying that she did not have papers and did not speak any English. Mrs. Alduenda told her that she should still contact police, and Mrs. Alduenda offered to help her. Mrs. Alduenda testified that Mrs. Melendez maintained that she did not want to report the offense and just wanted to forget everything.
At some point later, Mrs. Melendez called Mrs. Alduenda and informed her that the police were at her home, and she asked Mrs. Alduenda to translate for her. Mrs. Alduenda testified that she translated for Mrs. Melendez. She also later translated when Mrs. Melendez spoke with Detective Elliot. She learned, at that point, that the Defendant, had "put his finger in [Mrs. Melendez's] anus." Mrs. Melendez did not want Mrs. Alduenda to tell this fact to the detective, but Mrs. Alduenda convinced Mrs. Melendez to allow her to do so. She said that Mrs. Melendez had a difficult time telling the detective about the Defendant touching her vagina and putting his finger in her anus.
During cross-examination, Mrs. Alduenda testified that she first became friends with Mrs. Melendez in 2006 through their joint affiliation with their church. She said that she was still friends with Mrs. Melendez at the time of trial but that they did not see each other frequently because their church had divided. Mrs. Melendez testified that she translated for the female officer in July 2008. She translated for the male detective in October 2008. She agreed that Mrs. Melendez told the male detective more details and allegations than she did to the female officer. Mrs. Alduenda agreed that the first time that she translated for Mrs. Melendez when Mrs. Melendez spoke with officers, Mrs. Melendez told the officers that she told the doctor she had to go and got dressed and left.
Gilbert Ramirez, an officer with the Metropolitan Nashville Police Department, testified that he worked with the "El Protector Program, " a program designed to encourage police officers to interact with the Hispanic community. He explained that many people in the Hispanic community were scared to report a crime because they thought they would be deported automatically even if they were the victim of a crime. Officer Ramirez's job was to show the community that the police were there to serve them also. He did this through education.
Officer Ramirez testified that he translated for Detective Elliott when he interviewed Ms. Melendez on July 16, 2008. During the translation, Officer Ramirez learned that Mrs. Melendez was having pain in her upper thigh area. She spoke with someone at church who recommended acupuncture. Mrs. Melendez said that she went to an examination room with the Defendant. He told her that she needed to remove her pants. She did, and she put a towel over her lower body. The Defendant then began massaging her legs. He massaged the upper area of her legs. She said he then removed her panties and, at the same time, the towels "came off." Mrs. Melendez said the Defendant massaged her vagina. Officer Ramirez recounted the remainder of Mrs. Melendez's interview with Detective Elliot, and it substantially complied with her trial testimony. He described Mrs. Melendez as seeming "embarrassed" and "uncomfortable" during the interview. Officer Ramirez testified that Mrs. Melendez's immigration status was not mentioned during the interview.
During cross-examination, Officer Ramirez testified that he did not know during the interview that Mrs. Melendez was in the country illegally. The officer agreed that Mrs. Melendez did not only tell the officer that the Defendant had rubbed her vagina but she also demonstrated it by rubbing her own body in that area. She also got onto the floor to show the position that the Defendant had her get into. Officer Ramirez agreed that Mrs. Melendez brought with her to the interview the medicinal seeds that she had purchased from the Defendant, and she gave those to the officers. He agreed that she was open and cooperative during the duration of the interview.
Officer Ramirez testified that Mrs. Melendez said that she had contacted the Health Department about the Defendant. She said that she did not pursue this course of action because they were going to charge her money. Detective Elliott responded that he did not think that this statement was accurate and told her not to worry.
Daniel Lee, an acupuncturist, testified that he had graduated from an accredited acupuncture school, and he had been practicing for twenty years. He said that acupuncture was basically the giving of energy to our bodies from different sources. He said acupuncture could be used to relieve pain, help allergies, and for other reasons. Dr. Lee was licensed in the state of Tennessee.
Dr. Lee testified that, in July 2008, he treated Mrs. Melendez, who was accompanied by one of his patients, for leg pain. Mrs. Melendez volunteered what had happened to her when she went to see a previous acupuncturist. Dr. Lee got the impression that Mrs. Melendez did not trust him or trust acupuncture therapy. Dr. Lee described how he treated Mrs. Melendez, saying that he first checked the area around which she was complaining of pain. He believed she had a bulging disk. He, therefore, sterilized her skin in that area and gave her acupuncture therapy. He said that, in his expert opinion, Mrs. Melendez did not need to remove her clothing to be treated. He said that, even if she complained of sciatic nerve pain, she would not have had to remove her clothing. Dr. Lee said that he had never had the experience of needing someone to remove their clothing in order for him to treat them. He further clarified that it was unnecessary to massage a woman's vagina or breasts or penetrate their anus for treatment purposes. Dr. Lee said that he encouraged the victim to contact police about her previous experience.
During cross-examination, Dr. Lee identified "charts of the body" from pictures of the Defendant's office. He said that they showed the physical anatomy of the body and also the acupuncture channels. These charts were sometimes used to show a patient where the needles would be inserted. He looked at the pictures of the Defendant's treatment rooms, and he said that his own treatment rooms were similar. Dr. Lee testified that Mrs. Melendez told him that the Defendant had touched ...