Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014.
Appeal from the Circuit Court for Franklin County No. 19738 J. Curtis Smith, Judge.
B. Jeffery Harmon, District Public Defender; Kandi Nunley and Christina S. Gifford, Assistant Public Defenders (on appeal); and Jerry H. Summers and Marya L. Schalk (at trial), Chattanooga, Tennessee, for the appellant, Cheyne R. Stewart.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; J. Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney 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.
This case relates to the Defendant's contact with the victim on the night of October 5, 2010. At the trial, the victim testified that she moved to Franklin County in July 2010. On the first night she was there, she met the Defendant through Jamie Knight, the victim's mother's childhood friend, and went "four-wheeling" with him and his friends. The victim said that the Defendant never took her on a date but that they went four-wheeling a couple of more times with his friends and drank alcohol. In August, she twice had consensual sexual intercourse with him. Both times, they had been drinking alcohol. Once, she refused his request to engage in anal sex.
The victim testified that later in August, the Defendant asked her in a text message to have sex with him but that she declined. He asked her to tell the woman with whom she was living that she was going to the Sonic drive-in but to instead come to his apartment to have sex. The victim said she became angry and responded that he could not speak to her "like that" and that she was not "a booty call."
The victim testified that on October 5, 2010, she went to a political campaign headquarters in Winchester. The Defendant, Ms. Knight, and Jeff Kennedy, whom the victim also knew, were present. Around 8:30 or 9:00 p.m., the four of them and Ryan McKay went to a restaurant. The victim drank margaritas and sat between the Defendant and Ms. Knight. She remembered talking with the Defendant about his new cell phone but could not remember leaving the restaurant. She said she was not intoxicated.
The victim testified that her next memories were sitting on the Defendant's couch between him and Mr. Kennedy, becoming sick, and being in the Defendant's bed. She did not know if she was dressed when the Defendant placed a trash can in front of her. She next remembered waking. She did not remember having any consensual sexual encounter with the Defendant between the time she left the restaurant and when she awoke. She said she would not have agreed to have sex with him because she told him that she did not "want to have that kind of relationship with him [anymore]."
The victim testified that she woke up around 8:00 a.m. after Mr. Kennedy nudged her and said he "heard someone got drunk last night." She was undressed, under a sheet, and in the Defendant's bed. She did not remember undressing herself and said she felt "loopy" and was "freaking out." She said she drank too much on other occasions and experienced hangovers but did not have a hangover that morning.
The victim testified that she asked the Defendant why she was undressed. He responded that she had become sick and that he undressed her and put her in the shower. She said that if she had been in a shower, she did not understand why her hair spray and her makeup were intact. The victim went to her car in the parking lot of the Defendant's apartment and called Ms. Knight to come and meet her there. She did not want to go back inside the apartment. She found one of her shoes behind her car but did not remember leaving it there. She vaguely remembered the Defendant's penetrating her anus but was uncertain of her memory.
The victim testified that after Ms. Knight arrived, Ms. Knight went inside to speak to the Defendant and that Ms. Knight and the victim then went home for the victim to shower. The victim said she noticed pain in her anal region and in the muscles used for urinating but did not feel any vaginal pain.
Ms. Knight and the victim decided to go to the hospital. Although the victim did not contact the police, the police appeared at the hospital. The victim was examined by a doctor and questioned, and a rape kit was administered. She took the bra and underwear she wore the previous night to Detective Andrea Davidson.
The victim testified that later that night, she gave a statement to Detective Davidson and, at her request, called both the Defendant and Mr. Kennedy but only reached Mr. Kennedy. The Defendant, however, sent a text message to the victim during the interview. In the message, he denied having sex with her but said he "fingered [her, ] went down on [her, ] and that's it." She did not remember any sexual contact with the Defendant or drinking or smoking anything after she left the restaurant.
On cross-examination, the victim testified that Ms. Knight and Mr. Kennedy, not the Defendant, provided margaritas to her. She said she did not know if she was intoxicated when she left the restaurant. She did not remember getting into her car or driving, but the next morning her car was at the Defendant's apartment.
The victim testified that she and the Defendant had never gone to his apartment during the day. She told Detective Davidson that she previously had intercourse with the Defendant but did not tell Detective Davidson that she previously performed consensual oral sex on the Defendant because she was not asked. She told Detective Davidson that she did not remember leaving the restaurant and that she drank from her roommate's and a friend's glasses.
The victim testified that during her phone conversation with Mr. Kennedy, she told him that she drank four margaritas the previous night and that she did not remember buying beer or smoking "any K2 or Spice or fake marijuana." She thought she had no memory due to the margaritas she drank. She said that the Defendant did not act improperly toward her on the night of the incident and that no one had told her otherwise.
The victim testified that she did not tell the Defendant's mother that he attacked her. She did not tell anyone other than Ms. Knight about the incident. She told people at the campaign headquarters that she had a stomach virus and could not work much.
The victim testified that the Defendant and Mr. Kennedy may have suggested some of the details of what happened when she asked them about that night. She had no memory of the incident. She did not remember kissing the Defendant or Mr. Kennedy, cuddling with the Defendant, "making out" with the Defendant, or telling hospital staff she was not coerced into whatever happened. She said she was upset the morning after because she was undressed. She said her jewelry had been removed. She said she took a shower upon arriving home.
The victim testified that she was told semen was found on her underwear but not around her anal or vaginal region. She acknowledged that she dated Ms. Knight's son and had been sexually intimate with him shortly before the incident.
On redirect examination, the victim testified that she drank some of the Defendant's beer at the restaurant but did not remember the circumstances of how she came to drink the beer. Whenever she saw the Defendant at the headquarters, she would not approach or speak to him because she did not want him to think she wanted a relationship. She was not frightened of him.
Jamie Knight testified that she had known the victim's mother since the first grade. The victim came to live with her in July 2010 and volunteered to work on the political campaign Ms. Knight managed. The Defendant, a city councilman, was also involved in the campaign.
Ms. Knight testified that in October, the victim, the Defendant, Mr. Kennedy, and Mr. McKay went from the headquarters to the restaurant between 9:00 and 9:30 p.m. Everyone at the table drank alcohol, but no one was intoxicated. Ms. Knight went home about 10:30 p.m. When Ms. Knight left, the victim was sitting at the table with the Defendant. Ms. Knight did not observe anything unusual between the victim and the Defendant.
Ms. Knight testified that around 11:00 p.m., Mr. Kennedy called and sent her a text message asking if he could come to her house because he needed a place to sleep. He came over for about an hour. Ms. Knight did not know where he went afterward.
Ms. Knight testified that the victim called her the next morning between 7:00 and 8:00 and was upset and incoherent. The victim said she was at the Defendant's apartment, could not find her shoes, and did not feel "right." Ms. Knight told the victim to stay there and that she would come over.
Ms. Knight testified that when she arrived, the victim was sitting in her car and was distraught. Mr. Kennedy came outside, and one of the victim's shoes was found behind her car. Ms. Knight went into the Defendant's apartment and asked him where the other shoe was. The Defendant said he did not know. She said the Defendant would not "look [her] in the eye and speak." The Defendant went into a bedroom and came out with a blouse he thought belonged to the victim, but Ms. Knight told him it did not. Ms. Knight found the victim's earrings near the front door.
Ms. Knight testified that she and the victim went home and that the victim was upset and crying. She asked the victim if anything happened and if the Defendant touched her. The victim responded that she did not think the Defendant touched her. Ms. Knight asked if the victim had sex with the Defendant, and she said no. Ms. Knight told the victim to take a shower and meet Ms. Knight at the headquarters. While Ms. Knight was at the headquarters, the victim called. The victim was upset and said that the Defendant raped her anally and that she was in pain. The victim came to ...