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Wooten v. State

Court of Criminal Appeals of Tennessee, Nashville

November 28, 2016


         Appeal from the Criminal Court for Davidson County No. 2010D3322 Cheryl A. Blackburn, Judge

         Petitioner, David Chardwick Wooten, appeals the dismissal of his petition for post-conviction relief in which he alleged ineffective assistance of counsel at trial. More specifically he contends that trial counsel failed to present favorable evidence and witnesses on his behalf at trial. After a thorough review, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Manuel B. Russ, Nashville, Tennessee, for the [petitioner], David Chardwick Wooten.

          Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel, Glenn R. Funk, District Attorney General; and Chad Butler and Brian Holmgren, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr. and Camille R. McMullen, JJ., joined.




         Petitioner was convicted of two counts of aggravated sexual battery, a Class B felony, and was sentenced to ten years for each conviction to be served concurrently at 100%. This Court affirmed the convictions and sentence. State v. David Wooten, No. M2012-00366-CCA-R3-CD, 2013 WL 4007784 (Tenn. Crim. App. Aug. 6, 2013), perm. app. denied (Tenn. Dec. 11, 2013).

         The following facts were set forth by this Court on direct appeal:

In November 2010, the Davidson County Grand Jury indicted the [petitioner] for four counts of aggravated sexual battery. According to the indictment, the offenses occurred between July 1, 2004, and November 30, 2004. The victim of the offenses was the [petitioner]'s daughter, who was born [in 1994].
At the [petitioner]'s October 2011 trial, the then seventeen-year-old victim testified that she currently lived with her fourteen-year-old brother, Z.W., and her mother, S.W. In 2004, the victim's parents were married but separated for three or four months. The victim was about ten years old and in the fifth grade, and she and Z.W. spent Wednesdays and every other weekend with the [petitioner] at his Preston Run apartment in Hendersonville. The victim and Z.W. slept in the [petitioner]'s bed with him, or sometimes the victim slept in the bed with the [petitioner] while Z.W. slept on the floor. When the victim and her brother both slept in the bed with the [petitioner], the victim or the [petitioner] slept in the middle.
The victim testified that she would awake with the [petitioner]'s hands "down [her] pants." She explained that the [petitioner]'s hands would "go up [her] shorts, like the bottom" and be inside her panties. She stated that the [petitioner] touched the inside of her labia but outside her vagina and that he moved his fingers "[b]ack and forth like up and down." The victim said she was scared and would "just try and move and roll over." When she rolled over, the [petitioner] stopped touching her. The State asked her if the [petitioner] ever touched her when Z.W. was not in the bed. The victim said yes and stated, "I just remember that there was enough room where I could roll over. And when there was all three of us, it was really squeezed together. We were all tight." One time, the [petitioner] got out of bed after he touched her and washed his hands. The State asked the victim if she knew how many times the [petitioner] touched her, and the victim answered, "No, I just knew it happened enough where I would want to wear pants." She said that when she wore pajama pants or sweat pants, the [petitioner] would not touch her. During the abuse, the victim never said anything to the [petitioner], and he never said anything to her. She said that her parents reconciled and that "then there was a long period of time, and then it was one last time and it stopped." Sometime after her parents got back together, the [petitioner] told the victim that she should not say anything about the abuse and that he would try to get her a cellular telephone for Christmas. The victim said she got the telephone for Christmas when she was eleven years old and in the sixth grade.
The victim testified that about two years before trial, the [petitioner] spanked her "really hard." The victim was very upset; telephoned her friend, Brittany Kuntz; and went to Kuntz's house for a while. There, she told Kuntz and Kuntz's mother, Samantha Searcy, about the touching. The victim said she revealed the abuse to them because it had been "eating away" at her and because
I was just tired of the way everything was. And I got in trouble for anything and everything, and it wasn't like normal punishment. It wasn't like you're grounded for a week. It was let me throw my cell phone at your knee, let me hit you and push you, spank you as hard as I can.
After the victim revealed the abuse, Searcy telephoned S.W., and S.W. arrived at Searcy's home. Searcy told S.W. about the [petitioner]'s touching the victim, and S.W. left to talk with the [petitioner]. Later that day, the victim talked with her parents at home. S.W. thought the victim was lying. That night, the victim talked with S.W. privately and told S.W. "more in detail" about what had happened with the [petitioner]. S.W. started to believe the victim. The next morning, S.W. left for a business trip while the victim and Z.W. stayed home with the [petitioner]. The victim said she was not afraid to stay with the [petitioner] because he had not sexually abused her for two or three years.
The victim testified that while S.W. was gone, the [petitioner] woke her one night and told her that she needed to telephone S.W. and tell S.W. that she had lied about the abuse. Otherwise, the [petitioner] and S.W. were going to "split up, " and the victim "was going to be the cause of it all." The victim did as the [petitioner] instructed. The victim said that after she got off the telephone with her mother, the [petitioner] told her that "he felt sorry for everything that had happened and ever since it happened he felt like a horrible person and he felt like going to hell." The victim said her family did not discuss the abuse again until January 2010. At that time, the victim revealed to S.W. that the [petitioner] had made her call S.W. and claim that she lied about the touching. She said that she told S.W. she had been truthful about the sexual abuse and that S.W. "immediately started crying and knew exactly that [she] was telling the truth." Later that day, S.W. confronted the [petitioner]. The next night, the victim's parents told her that they were going to divorce, that it was not her fault, and that the [petitioner] had "confessed everything" to S.W. One or two weeks later, the [petitioner] moved out of their home. The victim had wanted to keep a relationship with the [petitioner] and continued to see him. However, at some point, the victim stopped visiting him because he said something rude to her and "was just really mean like he used to be." About two weeks later, a no contact order was entered, which prevented the victim and her brother from visiting the [petitioner]. At the time of trial, the victim had not spoken with him since July or August 2010.
On cross-examination, the victim denied going through a "lying stage" when she was thirteen years old. She acknowledged that a woman named Joanne interviewed her about the abuse and that she told Joanne the [petitioner] touched her four or five times. She said that Joanne "wanted me to give her a number" and that "I didn't want to be like, oh, it happened nine times and that be an exaggeration." She denied fighting with her brother about who would get to sleep in the middle of the [petitioner]'s bed and acknowledged that she told her mother the [petitioner] penetrated her. On the day in January 2010 when the victim reaffirmed the abuse to her mother, the victim's parents had been fighting. The victim acknowledged that she had felt "badly" for her mother, but she denied reaffirming the abuse in order to make her mother feel better. She said that the [petitioner] was the primary disciplinarian in the family and acknowledged that he was more strict than her mother. She also acknowledged that a spanking led to her revelation about the sexual abuse and that she thought she was too old to be spanked. The victim said the [petitioner] never did anything inappropriate to her in her bedroom.
On redirect examination, the victim acknowledged that the [petitioner] did not sexually abuse her every time she visited his apartment in 2004. She said she told her mother that the [petitioner] penetrated her because she "didn't really understand what all the words meant." Although the victim had told her mother that the [petitioner] "fingered" her, she was incorrect; the [petitioner] did not put his fingers inside her vagina. The victim said that she did not tell anyone about the abuse earlier because she was scared, and she denied making up the allegations to punish the [petitioner] for disciplining her. On recross examination, the victim acknowledged that her brother got a cellular telephone when he was twelve years old.
John Barker, a licensed marriage, family, and adolescent therapist, testified that he began counseling S.W. in June 2010. On June 9, 2010, Barker met with S.W. for the first time. He met with her again on June 16 and 24. Based on information from their meetings, Barker contacted the Department of Children's Services (DCS) to report that S.W.'s daughter had been abused by the child's father. On June 26, Barker met with the victim to inform her that he had filed the report. He also questioned the victim about the abuse. The victim told Barker that the [petitioner] touched her under her clothing but that he did not penetrate her. Barker said the victim "confirmed that it happened five times."
On cross-examination, Barker testified that when he first met with S.W., she said she was separated from her husband because her husband had abused their daughter. Barker stated that during his second meeting with S.W., he "directed" her to "elaborate on what that meant." S.W. told Barker that her husband had sexually abused their daughter and that the abuse had not been reported to authorities.
S.W., the victim's mother and the [petitioner]'s ex-wife, testified that she met the [petitioner] when she was fourteen years old. They were together for twenty years and married for sixteen years. They had two children, and S.W. divorced him in June 2011. In the summer of 2004, S.W. and the [petitioner] were living in Hendersonville but decided to separate. During that time, the [petitioner] lived in Preston Run Apartments and saw their children on Wednesdays and every other weekend. Their daughter, the victim, was ten years old, and their son, Z.W., was seven years old. S.W. and the [petitioner] reconciled about Thanksgiving 2004. After they reconciled, the [petitioner] wanted to buy the victim a cellular telephone. S.W. thought the idea was "ridiculous" because the victim was only in the sixth grade and did not need a phone. S.W. said the [petitioner] "kept pushing and pushing, " so they got the victim a cellular telephone for Christmas.
S.W. testified that one day in 2008 when the victim was thirteen years old, S.W. was at work and received a telephone call from the victim. The victim was very upset and crying and told S.W. that the [petitioner] had spanked her "really, really bad." S.W. said that the [petitioner]'s spanking the victim was not unusual and that he could be "very violent toward her, very angry at her all the time." The victim wanted S.W. to come home, so S.W. decided to leave work. On her way home, she received a telephone call from Samantha Searcy and went to Searcy's house. The victim was there, and S.W. learned that the [petitioner] had molested the victim while S.W. and the [petitioner] were separated in 2004. S.W. drove home and spoke with the [petitioner], and he denied the victim's allegations. S .W. and the [petitioner] went to the Searcy home to speak with the victim. S.W. said that Searcy was "threatening to call DCS" and that S.W. and the [petitioner] "were really worried about that. " Therefore, they decided to take the victim home and "settle it as a family together by ourselves." S.W. said that she did not believe the victim because she and the [petitioner] had been together their whole lives and because she could not imagine the [petitioner]'s "doing anything like that."
S.W. testified that when the three of them got home, she was the only one talking and that the discussion was "tabled because nobody could really figure out what had happened." Later that day, the victim spoke with S.W. in S.W.'s bathroom. The victim told S.W. that "it really happened" and that the [petitioner] "washed his hands after he did it." S.W. stated that while the victim was talking with her, the [petitioner] was outside the bathroom door, pacing back and forth. The victim was afraid that the [petitioner] was going to come into the bathroom, so she would not say anything else. The next day, S.W. left for a business trip. She said she was not afraid to leave the victim with the [petitioner] because she was in shock and "just kind of wanted to shove it under the carpet." While S.W. was away, she telephoned the [petitioner] and told him that she could not stop thinking about the victim's allegations. She said she also told him that if the victim's allegations were true, she and the [petitioner] were going to divorce, and he was never going to see their children again. S.W. said the [petitioner] "freaked out" and hung up the telephone. About an hour later, he called her and told her that the victim had something to tell her. The victim got on the phone and told S.W. that she had made up the allegations. S.W. asked the victim if she was sure, and the victim stated, "[N]o, Mom, I made it up."
S.W. testified that in 2010, when the victim was fifteen years old, she went on another business trip. When she returned home, the [petitioner] screamed at her and accused her of cheating on him. S.W. told the [petitioner] that he had an anger problem and that they were going to divorce if he did not get help. S.W. said that she and the victim went to a "smoothie shop" to talk and that the victim wanted to know if S.W. and the [petitioner] were going to divorce. S.W. said the victim told her, "I cannot go through that again because when you were separated is when that happened to me." The victim told S.W. that the [petitioner] had made her lie about the allegations being untrue.
S.W. testified that she and the victim went home and that she confronted the [petitioner]. The [petitioner] never claimed the victim was lying. He wanted to know what S.W. was going to do and wanted to know if she was going to call the police. Later, he confessed to touching the victim, and he and S.W. decided to divorce. S.W. said the [petitioner] told her that he had been "laying there in the bed, " that "something came over [him], " and that he could not stop himself. The [petitioner] touched the victim under her underwear. S.W. told the [petitioner] that the victim had claimed he washed his hands afterward. She said the [petitioner] stated that "that was the first time that he did it." The [petitioner] told S.W. that he woke up touching the victim, "freaked out, " and washed ...

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