Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 23, 2015 at Knoxville
Appeal from the Criminal Court for Davidson County No. 2012-B-1816 Steve R. Dozier, Judge
David M. Hopkins, Murfreesboro, Tennessee (on appeal); Brent Horst and Harvey Slovis, New York, New York (at trial), for the Appellant, Darrel Dean Hochhalter.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Rachel M. Sobrero, Assistant District Attorneys General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.
ALAN E. GLENN, JUDGE
This case arises out of the defendant's numerous and various sexual encounters with his daughter, the victim, which occurred between April 22, 2008 and April 16, 2010. As a result, he was indicted for seven counts of sexual battery by an authority figure, one of which was dismissed before trial, as well as one count of rape. The defendant's wife was charged with one count of facilitation of sexual battery by an authority figure, but her case was severed from the defendant's.
At trial, the victim, who was nineteen years old at the time of trial, testified that the defendant was her father, and she had a sister who was four years younger than she. During the time period in question, her mother left for work around 8:30 a.m. and returned home around 5:00 or 6:00 p.m. The defendant worked nights, leaving the home around 2:00 a.m. and returning around 9:00 a.m. Her grandmother also lived in the home, but she primarily stayed in her room downstairs or in the living room and kitchen on the main level. She rarely went to the upstairs level, where the bedrooms were located.
The victim said that she was homeschooled in the sixth grade by the defendant, but she returned to school for seventh and most of eighth grade. In April or May 2008, during her eighth grade year when she was thirteen years old, the defendant withdrew the victim from school because the victim began cutting herself. The defendant believed the victim's friends were a bad influence on her.
The victim said that she and the defendant had "a great relationship" when she was little, but they grew apart as she became a teenager and wanted to be with her friends. During the time the defendant homeschooled her after withdrawing her from the eighth grade, the victim's and defendant's relationship "was strained but [they] were really close." She elaborated that the defendant "was just trying to relearn [her]."
The victim recalled that, following her removal from school, the defendant would wait in the bathroom while she showered, so he could check her legs afterwards to make sure she had not cut herself. The victim denied that the defendant ever got in the shower with her or touched her in the shower. The victim acknowledged having previously told others that the defendant had taken showers with her in order to conserve water and to make sure she was not cutting herself. She also acknowledged having previously told others that the defendant "would grab [her] boob or smack [her] butt in the shower." The victim denied that the defendant ever got in the bathtub with her. However, she acknowledged previously stating on a number of occasions, including under oath, that the defendant had done so.
After completing her homeschooled eighth grade year, the victim began attending Nashville School of the Arts ("NSA"), and the defendant visited her at school. Someone from the Department of Children's Services ("DCS") spoke with the victim about concerns that had been raised at school concerning her relationship with the defendant. Rumors were going around the school that she had been "making out" with the defendant. The victim told the DCS worker that nothing had happened and that they were just "a very eccentric family." The victim acknowledged that her mother told her to tell DCS that nothing happened in order to protect their family. However, she explained that her mother was referring to the defendant's grabbing her breasts and checking her hymen – the only two things she admitted actually happened. After DCS became involved, the victim's parents blamed her for telling her friends about the sexual abuse, and her parents discussed moving out of state to prevent the defendant from going to prison. The victim recalled that her parents talked about how the victim's "inability to stay quiet about things happening" was going to have legal repercussions.
The victim acknowledged previously stating that she made the decision to disclose the abuse in 2011 because she was worried about her younger sister. At the time of the disclosure, the victim's sister was the same age that the victim had been when the abuse started, and the victim's sister was also being homeschooled. At trial, however, the victim testified, "It wasn't really a concern about sexual abuse, it was just a convenient thing that fit in with my story."
The victim agreed that she had been fearful her mother and sister would blame her if the defendant went to jail, and she was worried about breaking up her family. However, she acknowledged that she had not broken up her family because, at the time of trial, she was living with her mother, her parents were still together, and she saw the defendant occasionally even though he was not supposed to be around her. However, she denied that the defendant came to her house when she was present. Asked if she wanted to be reunited with the defendant and the family, she responded, "Maybe after a lot of counseling."
The victim claimed that she told stories about the defendant's molesting her in order to make friends at school. She told her friends that she had taken showers and "naked naps" with her father. She elaborated that she told her friends that her father groped her breasts and buttocks during the showers and that he had erections during the naps. She also told them that, on one occasion, the defendant tried to digitally penetrate her vagina. She explained that the defendant "felt down there to see if [she] was aroused" and asked if she "was wet."
The victim stated that, in the tenth grade, she got caught performing oral sex on her boyfriend and was taken out of school. After that, she "used the stories that [she] had been telling [about the defendant] to get out of the house because [she] wanted to be with [her] boyfriend at that time." She said that, after the incident with her boyfriend, the defendant developed "all of these rules" and "beat the crap out of [her] every morning, " so she did not want to be at home and used the stories she had told her friends over the years to get out of the house. She stated that she told Jenny White, her former youth leader, about the alleged abuse because she was afraid of not being able to see her boyfriend again. However, she acknowledged that a few days before she disclosed the abuse to Ms. White, her family had dinner with her boyfriend's family and agreed that she would be able to return to school.
The victim testified that she kept a journal in which she recorded some of the allegations that she told other people. However, she clarified that she "had gone back and written those in." She kept the journal from the ages of thirteen to sixteen, or from the eighth to the tenth grade. She elaborated that she had a "rough draft journal and a final draft journal." The rough draft journal had "all [her] sloppy writing and all of [her] little side notes. And there were pages between them." She later rewrote the journal to look nice so she could give it to her children one day. She claimed that her friends wanted to read her journal, so she "slipped in stuff from [her] stories . . . so it would seem more believable."
The victim read a journal entry dated April 6, 2010, in which she noted that one of her boyfriends "was confronting my dad about the molestation thing. I tried to tell [him] that my dad is a good and honest man; he's confused. He's just ignored me of course." She then read another entry that read: "The [D]epartment of Child Services showed up to talk to me at school. Family isn't in trouble but they will document their visit with the family. We didn't tell them any of the things they would consider indecent." The victim then read another post, dated May 14, 2010, that read:
DCS is coming to see me at school again today. Apparently either "Jade" or Principal Bob are sending letters to them about dad so they have to interview us again . . . but they believe we are innocent. Mom's getting pissed. She says it's harassment so she's going to try to sue Principal Bob for his job if this keeps happening.
The victim testified that after she was caught performing oral sex on her boyfriend at school, she and her boyfriend were taken to the principal's office and given three days suspension each. She recalled that the defendant was "incredibly pissed off." Although the victim was only suspended for three days, the defendant kept her out of school for five days. During that time, the victim had to stay in her room, and "every morning . . . [the defendant] would . . . beat the crap out of [her]." He made her hold onto a bedpost while he beat her with a belt. He told her that he would smack her hand if she let go of the bedpost. He called her "white trash" and said that she "would never amount to anything." The victim sustained bruises from her mid-back to her knees from the beating. After the beatings, the victim went into the bathroom while the defendant showered, and they talked. She recalled that the defendant talked about "how he was going to kill [her boyfriend] and [her boyfriend]'s dad, and the usual, just he was pissed." When the victim was hungry and asked for food, the defendant gave her bread, peanut butter and water, which was the only food she had for several days. As a chore, for punishment, she had to carry cinderblocks or logs back and forth across the yard. She understood that she was being punished because she "had given [her] boyfriend a blow job and that is not what Christian girls do."
After the five days had passed, the defendant allowed the victim to return to school, as well as to church and see her youth leader, Jenny White. The victim told Ms. White that her father had locked her in her room for five days and beaten her every day. She also told Ms. White the same things that she had told her friends about the defendant's molesting her when she was being homeschooled in the eighth grade. The victim admitted that she detailed to Ms. White that the defendant had taken showers with her, touched her private areas, and pressed his penis against her body. She admitted that she additionally told Ms. White that the defendant had made her sleep naked with him and touched her on several occasions when that happened. After the victim talked to Ms. White, Ms. White told her that she was legally obligated to report the defendant's conduct. The victim admitted that she never recanted her story to Ms. White.
Following the disclosure to Ms. White, the victim spoke with a detective and told him the same things she had told Ms. White. She agreed to make a controlled phone call to the defendant because the detective told her that "[i]t would help with the case and with removing [her] from the house." The victim recalled that she later participated in a forensic interview, which was audio and video recorded. She also testified in juvenile court on July 11, 2011, and February 21, 2012.
The victim then read a journal entry from April 12, 2011, in which she said:
[The defendant] just burst in my room and said I can never kiss him again or even come within an arm's reach of him. And he said that if [my boyfriend] comes anywhere near me or comes anywhere near he will castrate him and shove [my boyfriend]'s nuts down his dad's father's throat. It just [sic] me off because he threatened [my boyfriend] and [his father]. I have a lot of respect for [my boyfriend]'s family so it's like he threatened my own family when he said that.
Then [the defendant] went on a rant about different ways to kill [my boyfriend]. One of them was [he] could drive a sword through his stomach, pull upwards to his chest and then let go of the sword. [My boyfriend] would take a sharp last breath and the pulling of air into his lungs would pull the sword deeper into his body. [He] would watch the life leave his eyes and pull the sword back out of his chest.
The victim read another excerpt from her journal, dated April 26, 2011, in which she noted that the defendant had become more protective of her since "he pulled [her] out of eight[h] grade for cutting" but that "he did a lot of things that tour [sic] us apart." The excerpt further noted that she realized her mother and father "blame[d] it on [her], but if they had just let [her] get through the phase on [her] own or if [the defendant] had not molested [her] then [she] would be normal."
Another journal excerpt from April 26, 2011, read:
So today when I was in the car with Jenny [White] she asked me how things are at home. A voice in the back of my head just started to shout that I needed to tell her everything. I was pretty calm about it, that comes with having told the story ten times I guess. After I finished telling her everything; she pulled up to the youth group parking lot and told me that she was legally obligated to call DCS.
She asked to talk to Pastor Todd about it first and find out what's going to happen. She will talk to me before she does anything because I have questions and requests. I don't know whenever someone says abuse, I always think broken bones and rape, not this stuff. I wouldn't have told her, but I don't want [my sister] to go through the same stuff.
I can deal [with] two more years of it, but I don't want her to experience it. She will hate me for taking mom and dad away, but I hope when she's older that she will forgive me.
Mom always said that my first concern should be to protect the family. I tried to keep us together. I have lied to government officials and I hid secrets for four years.
At trial, the victim claimed that the events of which she told Ms. White did not occur.
The victim testified that after her allegations came out, she was placed in the home of an acquaintance from church. She also saw a sex therapist, Shana Frank, at the Nashville Children's Alliance for about a year. During the course of her therapy, the victim never told Ms. Frank that the abuse did not happen. The victim talked to Ms. Frank about the fact that her mother continued to allow the defendant to have contact with her after learning that he was sexually molesting her in the eighth grade. She said that her mother had "good intentions for everything" that happened after the incident between the victim and her boyfriend, explaining that her mother said the defendant "was blowing off steam" during the time he beat her and kept her in her room. However, the victim told Ms. Frank that she wanted to resume a relationship with her mother. The victim stated that she felt extremely guilty about her parents being in court and acknowledged that both of her parents had told her that the problems in their family were her fault.
The victim testified that shortly after she turned eighteen, she returned to live with her mother. The victim admitted that she met with the prosecutor and said that she was concerned about her mother, but she knew that her father had to have some accountability for what he did.
The victim acknowledged having previously told a forensic examiner and testifying at juvenile court on two occasions that the defendant had committed sexual acts on her, starting at the age of twelve or thirteen. Among those actions, the victim had said that the defendant got in the shower with her about every other day "to conserve water and to rebuild the tender bond that [they] had from when [she] w[as] a young child." She acknowledged previously stating that when the defendant got in the shower with her, he would grab her breasts, "feel her up, " and have erections. She acknowledged stating that the defendant would hug her and that she would feel his erection against her. She said that on one occasion, the defendant had pre-ejaculate on his penis, which he said never happened with the victim's mother. She acknowledged previously stating that, after the showers, she would take "naked naps" with the defendant. She said that they would "spoon" during those naps, which the defendant called "making love notes by intertwining [their] legs together" and that he would usually fall asleep with his hand on her breast. However, the victim denied that any of those statements were true.
The victim further acknowledged having previously stated, but now said that it was untrue, that the defendant often got erections during their naps together. She also admitted previously stating, but that it was untrue, that, during one naked nap, the defendant woke up with an erection, got on top of her, touched her private area to see "if it was wet and said . . . you're horny too." She had also said that during that same incident, the defendant moved his hand around and made grunting noises, for which he apologized, but that was also untrue. Another statement the victim admitted previously making but now said was untrue was that on a couple of occasions, the defendant filled the bathtub with water and had her lay on top of him, after which he started thrusting or "humping" his penis against her body.
The victim testified that it was true that the defendant checked her hymen on one occasion during her eighth grade year when she was being homeschooled. She elaborated that she had to have a kidney removed when she was three years old, and she and the defendant were concerned that the surgery had taken her virginity. She explained:
One of the surgeries they couldn't [get] all of the surgical tools up my vagina so they had to make a little incision in my hymen to fit everything in there. And that's always been something that's kind of been a concern. I never knew it happened until dad mentioned it one day.
And so I was always really worried about it because virginity is a really big deal in our house. And so we looked. We decided to figure out what was going on because I can't see with a mirror. I didn't know what I was looking for.
The victim stated that she lay on the bed, held "everything open, " and the defendant "checked real quick." The defendant determined that "it was still intact." The defendant told her that "[t]here was just like a little V cut [out] of it or something, and that it would hurt whenever I lost my virginity." The victim recalled that the incident was "really awkward and uncomfortable." The defendant also later told her that she "had a lot of vagina" and asked whether she was a hermaphrodite. The victim denied that the defendant touched her vagina and moved his hand around until she told him that it was uncomfortable. She explained that, instead, she spread her genitals apart for the defendant to look. The victim admitted that the defendant told her not to tell her mother or other people about his playfully grabbing her breasts or checking her hymen because people would think it was sexual abuse. The victim acknowledged that the defendant's action of checking her hymen was inappropriate and "really weird, " but she claimed "there was nothing sexual about it."
The victim admitted that the defendant discussed his and her mother's sex life and told her about her mother's fetishes. The defendant told the victim that she "stressed him out, " which caused his blood pressure to rise such that he had to be on medication. According to the victim, one of the defendant's medications caused him to easily get erections. However, the victim stated that the defendant told her that his erections with her caused him to have problems getting erections with her mother. She acknowledged that the defendant said that he did not have sex with his wife because of her. The victim elaborated:
[W]hat I know is that I was stressing dad out and he had blood pressure problems. And he got on Cialis and he was still having problems having sex with mom. But when he was around the house just ...