Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015.
Appeal from the Criminal Court for Davidson County No. 2010A428 Monte Watkins, Judge.
Ryan K.H. Nevin, Nashville, Tennessee, (on appeal) and Robert Vaughn, Nashville, Tennessee, (at trial) for the Appellant, James Thomas, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the Appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert L. Holloway, Jr. and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE.
The victim, M.B., testified that she began a relationship with Defendant in March, 2007. She testified that in May, 2009, Defendant was charged with domestic assault, and they were briefly separated. In October, 2009, they separated again. M.B. moved back into the residence with the understanding that they were no longer a romantic couple. M.B. slept in the bedroom, and Defendant slept on the couch. M.B. testified that she intended to find another residence at the end of January, 2010.
On December 23, 2009, Defendant sent M.B. a text message asking her to have sex with him. She testified that "it had been going on for at least a month." M.B. "would be in [her] bedroom, [and Defendant] would be on the couch. It would start right around bedtime. He started texting[.]" M.B. told Defendant to leave her alone. Defendant responded, "don't make me act a fool." M.B. went into the living room, and Defendant told her to pull down her pants. M.B. told Defendant that she did not want to have sex with him, and Defendant told her to lie down on the couch. M.B. testified that she "could tell [Defendant] was extremely irritated and very aggressive[, ]" so she complied with his demands.
M.B. testified that Defendant had nonconsensual sexual intercourse with her on five occasions during the month of December. She testified that when she refused Defendant's request to have sex, "[i]t would be a fight. He would threaten to go wake up [her] kids. He would – it would be a constant nagging, a constant harassment, text messages all night long."
M.B. testified that on December 27, 2009, she was lying in bed, and Defendant got into bed with her and began rubbing her back. He told her to "give [him] some." M.B. refused, and Defendant left the room to retrieve a handgun from the closet. Defendant stood in the doorway of M.B.'s bedroom, "cradling" a "small double barrel handgun" in his hand. He told M.B. that he had two bullets, "one for [her] and one for him." After Defendant showed M.B. the handgun, he returned it to the closet and got into bed with her again "in a spooning position." Defendant had sexual intercourse with M.B. M.B. told Defendant that "he was sick, he needed help." M.B. testified that she knew that what had happened was "not right" because she told Defendant no, but she believed that rape involved "the tears and the rips and abusive attacks."
The following day, M.B. went to her doctor and was diagnosed with pneumonia. She did not mention to her doctor the incident with Defendant. That evening, she told Defendant that she was not feeling well. While she was preparing dinner for her children, Defendant became angry because she had not prepared anything for his children to eat. Defendant said something about "putting his hands on [her], busting [her] face, something to that extent." Defendant poked M.B. in her eye. Defendant then "grabbed [her] by [her] lip, kind of jammed and pushed [her] down over the dishwasher." M.B.'s lip was swollen. On cross-examination, M.B. testified that she sought an order of protection following the incident, but she did not include in her statement the rape incident because she believed that the order of protection was only for domestic assault.
Officer Todd Christian, of the Metro Nashville Police Department, responded to a domestic disturbance call at the victim's and Defendant's residence. He testified that he noticed the dishwasher was open, but he did not observe any broken dishes or other disarray. Officer Christian spoke to the victim, and the victim gave him "a double barrel break action little pistol." The gun was kept in a shoe box in a hall closet. Based on the victim's statements to Officer Christian, he contacted detectives in the sex crimes unit.
Detective Heather Baltz, of the Metro Nashville Police Department's sex crimes unit, testified that she interviewed the victim. Detective Baltz testified that the victim was "generally very emotional throughout" the interview. At the conclusion of the interview, Detective Baltz "discussed the possibility of prosecuting for rape[, ]" and the victim appeared to be "surprised."
Detective Baltz testified that "[o]ne of the primary functions of [her] job is to determine whether or not someone is credible and whether or not a crime was committed." Defense counsel objected, stating:
[Defense counsel]: Objection, Your Honor. I believe this goes to a question of credibility. She's being asked about her credibility. She is not here to determine credibility but rather only to offer evidence in this case. She has not been introduced as an expert in this particular area.
THE COURT: Well, it's getting – it's bordering on expert testimony, so I'll let her testify.
Detective Baltz continued,
There are a lot of things I am trained to look for in determining whether or not it's a legitimate accusation. One of those things is victim credibility.
Another is evidence. There's a lot of different factors that I look for in how I handle an investigation, whether or not it's legitimate.
And one of those things in talking to victims is whether or not their demeanor is such that they are credible.
Detective Baltz took photographs of several text messages on the victim's cell phone. There were text messages from Defendant to the victim on December 23, between 9:24 p.m. and 9:37 p.m. Defendant texted, "Can i have some 2 nite huh[?]" Defendant also texted, "I knw dat i guess i got 2 take it 2 nite and im nt playin[.]" Another text read "U up n here runnin up my bills and u can do nothin cant cook or nothin dats f[ ]k up u need 2 hurry up n get u some were 2 stay[.]" The victim's responses to Defendant's text messages were not available to Detective Baltz. Detective Baltz also took photographs of the victim's injuries. Detective Baltz testified that the victim's bottom lip "was swollen and red."
Detective Baltz also interviewed Defendant. A video recording of the interview was played for the jury. During the interview, Defendant stated that M.B. asked him to come into the bedroom and rub her back. He stated that he rubbed her back, and they had consensual sex. He stated that his and M.B.'s children were entering and leaving the bedroom while they had sex. He acknowledged that he sent text messages to M.B., but stated that he "was just playing with her." Defendant denied threatening M.B. with a gun. He stated that he kept his gun in the hall closet outside the bedroom. He denied stating to M.B. that he had one bullet for her and one bullet for himself. Defendant stated that on the night of the domestic assault incident, the victim became angry at him and hit him. He stated that he pushed her away, and he "mistakenly poked her in the eye." Defendant denied hitting M.B.'s lip.
Defendant testified at trial. He testified that he exchanged text messages with M.B. on the night of December 23, 2009. He was on the couch, and M.B. was in the bedroom. He testified that he did not have sex with M.B. that night. Later that night, Defendant went to his sister's house to visit his family members visiting from Mississippi. When he walked back to his house, M.B. and her children were not there.
Defendant testified that on the night of December 27, 2009, M.B. yelled for him to rub her back. Defendant went into the bedroom and began rubbing M.B.'s back. He testified that "one thing led to another[, ]" and they began having sex. He testified that M.B. did not tell him "no" or tell him to stop. Defendant testified that he kept a gun in the closet. He denied that he retrieved the gun from the closet.
Defendant testified that on December 28, 2009, M.B. became angry during an argument and began throwing dishes. Defendant testified that he accidentally poked M.B. in the eye. He apologized to her, and she hit him. Defendant testified, "[s]o I just pushed her and I walked out the door."
Defendant denied ever forcing M.B. to have sex with him. He denied ever threatening M.B. with his gun or making ...