Session March 4, 2015
Appeal from the Court of Criminal Appeals Criminal Court for Shelby County No. 07-06139 James M. Lammey, Judge
Juni S. Ganguli, Memphis, Tennessee for the appellant, Courtney Knowles.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Samuel Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.
Cornelia A. Clark, J., delivered the opinion of the Court, in which Sharon G. Lee, C.J., Jeffrey S. Bivins, and Holly Kirby, JJ., joined.
CORNELIA A. CLARK, JUSTICE
I. Factual and Procedural Background
In August 2007, a Shelby County Grand Jury indicted Courtney Knowles ("the defendant") for two counts of rape of a child. The victims of the alleged rapes were the minor daughters of the defendant's half-sister and live-in girlfriend, T.M. Before trial, the State agreed to sever the two counts. In January of 2012,  the trial court conducted a jury trial on the first count of the indictment, which related to T.M.'s oldest daughter ("the victim") and charged that "between January 1, 2005 and April 21, 2007, . . . [the defendant] did unlawfully and intentionally sexually penetrate [the victim], a person more than three (3) years of age but less than thirteen (13) years of age."
At trial, T.M. testified that the defendant moved into her residence at "1680 Claire" in Memphis in June or July of 2004, to live with her and her three children. T.M. explained that, although she and the defendant were living together as boyfriend and girlfriend, the defendant was also her half-brother, the two sharing the same biological father. The victim referred to the defendant as her "Uncle Courtney" and testified that she was unaware that the defendant was her mother's boyfriend until T.M. "had a baby."
T.M. testified that, in January 2005, the defendant told her that he had "licked" the victim. The defendant then immediately recanted the statement, stating that he only made the statement to force T.M. to "make him leave [her] house." T.M. allowed the defendant to stay in her residence and did not report the defendant's admission to law enforcement authorities.
In April 2005, T.M.'s younger daughter suffered a stroke and was hospitalized for about a month. The victim, then in the third grade, accompanied T.M. and the defendant to the hospital. At T.M.'s suggestion, the defendant drove the victim home from the hospital to pack a change of clothes and other necessary items. At trial, the victim provided the following description of what occurred when she and the defendant arrived at their home:
Q: Okay. What happened when you went home that day?
A: Well, we was getting everything ready, and then [the defendant]
called me in the room, and he took all my clothes off, and he was just touching on me; and he made me touch his private area-his penis area. And he was trying to show me how to suck his penis area by describing with his finger.
Q: You said he described it with his finger?-what did he do with his finger?
A: He was licking his finger to show me what to do with his penis.
Q: Did you try and do what he asked you to do?
A: Yes, ma'am.
Q: You said he was touching on you. Where was he touching you?
A: He had touched me on my breasts, my private area-well, my vagina and my butt.
Q: What room was this in?
A: My mother's room.
The victim testified that she was scared and that she cried for her mother. Eventually, the defendant stopped, and he drove the victim back to the hospital. The victim did not tell T.M. what had happened.
The victim testified that the defendant continued to sexually abuse her "many times, " and that the abuse occurred "like every day like when we were in the shower or tub or when my mother was gone or asleep." The victim stated that the defendant would touch her vagina, breasts, and buttocks and that he would "lick [her] vagina." The defendant did not ask the victim to lick his penis again, but he once attempted to insert his penis "in [her] bottom." The victim described that incident, stating that the defendant "had me like on my mama's bed-it was in the middle of her bed; and he was on the bed too; and his knees was on the bed, and he had my bottom in the air." The victim asked the defendant to stop, and he complied.
The victim testified that, on more than one occasion, the defendant would molest her while she was in the shower and that many times she would awaken in the night to find the defendant touching her. The victim reported that the defendant used his cellular telephone to take photographs of her breasts, vagina, and buttocks while she was naked, and she testified that the defendant once used his video camera to make a tape of the sexual abuse. The victim described that incident as follows:
Well, my mama, she left that day and said she went to the store; and [the defendant] just walked in with the camera. I was lying on the couch. And he said-he took my clothes off; and he had my legs up; and he had my shirt (indiscernible). He was playing with my breasts, my vagina, and my bottom; and he turned me over to play with my bottom and my vagina area too.
The victim also described one occasion between the first incident of abuse and the making of the tape, when she was riding in the defendant's vehicle and he drove her to a hotel:
I'm thinking that he was gonna pick somebody up, but he took me to the hotel, took all my clothes off, and he was touching on me, licking my vagina; and he-had his penis out, but he weren't sticking it inside my vagina. He had it like on top moving back and forth. And he did it so ...