Assigned on Briefs January 5, 2017
from the Criminal Court for Shelby County No. 10-02923 W.
Mark Ward, Judge.
Defendant, John Smith, appeals his conviction of official
oppression and his two year sentence in the county workhouse.
He argues that his acquittal of a charge of rape and
conviction of official oppression represent inconsistent
verdicts and that the evidence was insufficient to support
his conviction of official oppression. Following review of
the record and the applicable law, we affirm the judgment of
the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Charles S. Mitchell, Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Ruth
Anne Thompson, Senior Counsel; Amy P. Weirich, District
Attorney General; and Greg Gilbert and Omar Malik, Assistant
District Attorneys General, for the appellee, State of
Everett Williams, J., delivered the opinion of the court, in
which Alan E. Glenn and Camille R. McMullen, JJ., joined.
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
Defendant was indicted for rape and for official oppression
under the theory of mistreatment of the victim. T.C.A.
§§ 39-13-503, 39-16-403(a)(1). The Defendant, a
Memphis police officer, was accused of stopping the victim, a
woman who was walking down a street, and raping her behind a
victim testified that on the morning of the incident, she
left her hotel room and walked down the street to a gas
station to purchase a cellular phone charger. She passed
three police vehicles as she was walking. She testified that
one of the police vehicles activated its lights and turned
back around towards the victim. She stated that the officer,
whom she identified as the Defendant, stopped to speak with
her, and she informed him that she was going to the gas
station. She described the Defendant as dressed in police
uniform and alone in his squad car. The victim testified that
the Defendant requested her identification and informed her
that he was "running" her identification. She
stated that he said, "Tell me the truth, what are you
really doing?" She responded to the Defendant by
explaining that she was simply going to the gas station to
retrieve a phone charger. She testified that she had not
committed any illegal act on the day of the incident.
victim said the Defendant then exited the police vehicle,
asked her "to back up, " and inquired as to whether
she had "anything on [her] that would stick or stab
him" to which she denied. She asked the Defendant
whether she was going to jail. In response, the Defendant
said, "You're either going to suck my d*** and let
me f***, or you're going to jail." She testified
that she was scared of the Defendant after he threatened her.
The victim stated that she called her boyfriend after the
Defendant threatened her and that the Defendant said,
"Yeah, call your boyfriend and tell him it's over
with; you're going to jail." She testified that the
Defendant then grabbed her arm and threatened her again. She
rebuffed his threats, and he "grabbed [her] arm even
tighter and pulled [her] behind the building." She
stated that he pushed her down so that she was kneeling and
told her he would not put on a condom. He unzipped his pants
and "put his penis in [her] mouth." The victim
testified that the Defendant made her stand up and pulled
down her pants. As the Defendant was unbuckling his pants,
she "took off running" back to her hotel room.
victim testified that the Defendant did not ejaculate during
this attack. She also testified that she did not see anyone
else while she was behind the building with the Defendant.
She did, however, see a man as she escaped the attack on her
way back to the hotel. She stated that when she returned to
the hotel room, her boyfriend let her inside, and they called
the police. The recording of the 911 call was admitted. She
admitted that during the call, she used a different name from
her own while reporting the attack. The victim testified that
the police responded about ten to fifteen minutes later and
that she explained to police what occurred. The police
officers took her to the Rape Crisis Center from the crime
scene. At the Rape Crisis Center, she was subjected to a rape
kit examination, including mouth swabs and saliva samples.
She could not remember whether she told the forensic nurse
what occurred during the attack. After the rape kit
examination, she went to the police station, spoke with
officers about the attack, and gave a written statement. The
victim identified the Defendant in a photographic lineup.
testified that she had previously seen the Defendant twice,
including once "the night before this incident."
The victim stated that the first time she encountered the
Defendant, he was a responding officer to an incident
involving her boyfriend and another woman. She admitted that
at the time of her first encounter with the Defendant, she
was "working the streets as a prostitute." She also
stated that the Defendant said to her and her boyfriend,
"If I catch your girl late [at] night, I'm going to
hit her, and I'm not talking about paying for it."
She took the Defendant's comment as a joke and "just
laughed it off." She conceded that she believed the