Court of Criminal Appeals of Tennessee, Nashville
Session January 13, 2015.
Appeal from the Criminal Court for Davidson County No. 2012-B-1876 Monte Watkins, Judge.
Patrick T. McNally (on appeal) and Bernard F. McEvoy (at trial), Nashville, Tennessee, for the appellant, Adam Wayne Robinson.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Kristen E. Menke and Robert E. McGuire, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Robert W. Wedemeyer, and Timothy L. Easter, JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
The Defendant was convicted of three counts of aggravated sexual battery by a Davidson County jury following a two-day trial. The trial court sentenced the Defendant to three concurrent terms of nine years and six months. The date and year of the first incident was not known. Based on the testimony, the second and third incidents were alleged to have occurred on February 5, 2012. All three incidents were alleged to have occurred on the grounds of Beechwood Terrace Apartments where the Defendant had worked as a groundskeeper for seven years and where the alleged victim's mother lived.
The State called two witnesses during the trial, B.C. and B.C.'s mother. B.C. testified that she was in the second grade. She was asked, "Can you tell these people listening to you what happened to you?" B.C. answered, "About sexual abuse." She said it happened at her mom's old apartments, "Cedar Ridge Apartments." She said she did not remember how old she was. She said someone touched her in places no one is supposed to touch. Thereafter, the following exchange took place:
Q. Who did that?
Q. Do you see Adam in here, in this courtroom, this morning?
Q. You can stand and look around.
A. (Witness stands, then nods in the negative.)
Q. You don't see Adam?
A. (Nods in the negative.)
Q. Who was Adam to you?
A. My friend.
In regards to the first incident, B.C. testified that she was riding her bicycle at the tennis courts, which she said she did "all the time, " and saw Adam picking up trash. She asked him if he wanted to be her friend, and he said "yes." He instructed her to follow him. She could not remember where they went or when the incident happened. She said, "[The Defendant] told me to pull my pants down and he picked me up and touched me in spots he wasn't supposed to." She said she calls those spots "my private part and my butt." When B.C. was asked about the location of the initial incident, B.C. said it happened at the apartments. In the following exchange, the State pressed B.C. for a more precise location:
Q. Do you know where in the apartments, like, in the complex? Do you remember, were you by the tennis courts? Were you in the grass? Were you riding your bike? Do you remember where that first time happened?
B.C. said Adam told her not to tell anyone and gave her a dollar, but she lost it. She said his hands felt cold. Using a stuffed bunny, she described how the Defendant picked her up and put her face on his shoulder. When asked how her legs were positioned, she said, "I think they were dangling down or wrapped around his body." She said she did not remember how his hands got to the skin of her private part or butt.
B.C. was almost seven years of age on February 5, 2012, when the second and third incidents were alleged to have occurred. B.C.'s mother was going to walk their dog, and B.C. was supposed to ride her bicycle on the tennis courts in front of their apartment. She exited their apartment through the rear sliding door. B.C. rode around the side of the apartment building heading to the tennis courts while her mother stayed in the back yard. B.C. rode her bike to where Adam was picking up trash instead of going to the tennis courts. She said Adam told her to follow him, and she followed him on her bike behind an apartment building near a wooded area. She said they were behind an apartment near the patio and sliding glass door. She testified she pulled her pants down to her feet. Again using the stuffed bunny, she showed how Adam picked her up and touched her private parts and butt. She said Adam told her not to tell anyone and gave her a dollar, then she heard her mother yelling so she pulled her pants back up. She said she lost that dollar too.
B.C. rode her bike to the base of the hill, got off, and Adam pushed the bike up the hill for her. B.C.'s mother was on the patio behind their apartment, and according to B.C., when B.C.'s mother saw her, she said, "Does [the Defendant] do anything that he's not supposed to?" B.C. testified that she then told her mother "the story." She said the only other person she told was someone named Gayla, but that Gayla had moved to Texas. When asked about going to the doctor, B.C. said, "No, I didn't even have to go to the doctor." When asked twice if she talked to someone about what happened and drew pictures for that person, she answered "no" both times. B.C. said she watched a video before testifying. She identified two line drawings of a girl with no clothes on, one from the front and the other from the back. When asked if she saw her private parts on the line drawings, she drew a circle and wrote "private part" on the front view and drew a circle and wrote "butt" on the rear view. When asked what Adam did to the two areas circled, she said, "He just rubbed." She said his hands felt cold, but she could not remember if it was cold that day or what she was wearing.
B.C. was shown several pictures of Beechwood Apartments. The first picture showed a portion of the tennis courts in the foreground and, in the background, the apartment building where her mom lived, a trash dumpster, and the apartment building behind which she said the second and third incidents occurred. After looking at the photograph, she was asked again about where the first incident occurred. No verbal answer was given, but the transcript states, "(Drawing on diagram)." It is clear from the record that B.C. was looking at the photograph with the tennis courts in the foreground immediately before this line of questioning. The following examination then took place:
Q. Were you inside the tennis court or outside the tennis court?
Q. But standing close to it like that?
A. I was just-right near there where there was grass.
On the right center of the photograph, although it is very faint, appears to be a circle around a grassy area just outside the tennis court fence.
B.C. was then asked:
Q. And, then, do you see in that picture, sort of, near where you were the second time that something happened between you and [the Defendant]?
A. Same spot.
B.C. then explained the "same spot" was the place where she first saw Adam and then they went behind the apartment building. She said that, from where the second incident happened, she could see the basketball court and the dumpster but not the tennis courts.
On cross-examination, B.C. said she asked her mom if she could ride her bike and her mom told her she could if she would stay at the tennis courts. The following exchange concerned what happened between B.C. and her mother after the alleged second incident:
Q. I know it was a long time ago, and [your age] doesn't matter. You said that she yelled. What do you [mean] by that?
A. Well, she yelled my name.
Q. Okay. When you could see she was mad, were you a little bit frightened?
Q. Why is that?
A. Because I was afraid that I was going to get whupped by her.
Q. What does "whupped" mean?
A. Like, what my daddy does whenever I do something really bad. He gets his belt and he just hits me with it.
Q. Does mama do whuppings?
A. She doesn't do them. But I was afraid she might.
B.C. testified she watched a video the day before the trial began. Concerning that issue, the following exchange took place:
Q. I want you to think back. Before you watched that video, like, in the car on the way to the courthouse, at that time, did you remember anything about Adam?
Q. Okay, but the video helped? The video put it back in your head, and-maybe I am saying that wrong. Did you remember about Adam when you watched the video?
A. "I'm always-I'm always having Adam in my head. Always."
A. He was a good friend until he did what he did. And I trusted him.
Q. Am I right, that you only saw Adam two times; is that right?
Q. And both of those times he did something to you.
Later B.C. agreed that Adam was a stranger when she rode her bike to where he was picking up trash before the first incident was alleged to have happened.
B.C. stated that both times she pulled her pants down. She said Adam picked her up with both hands and put her face on his shoulder. He held her in that position with one hand and touched her with the other. She stated that, when he put her down, she pulled up her underwear and pants. After the first incident, she said she got back on her bike and rode around while Adam went back to picking up trash. B.C. said that her pants were pulled down one time each during the two incidents and that Adam did not tell her to pull her pants back down after she ...