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State v. Smith

Court of Criminal Appeals of Tennessee, Jackson

March 10, 2017

STATE OF TENNESSEE
v.
JOHN SMITH

          Assigned on Briefs January 5, 2017

         Appeal from the Criminal Court for Shelby County No. 10-02923 W. Mark Ward, Judge.

         The 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.

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

          Charles S. Mitchell, Memphis, Tennessee, for the appellant, John Smith.

          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 Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         The 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 building.

          The 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.

         The 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.

         The 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.

          She 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 Defendant ...


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