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State v. Pompa

Court of Criminal Appeals of Tennessee, Nashville

March 15, 2017


          Session: December 13, 2016

         Appeal from the Criminal Court for Davidson County No. 2014-B-1385 Monte Watkins, Judge

         The Defendant, Petr Pompa, was convicted by a Davidson County jury of two counts of sexual battery by an authority figure and two counts of statutory rape by an authority figure. On appeal, the Defendant argues that (1) the trial court erred in allowing inadmissible opinion, character, and hearsay testimony at trial; (2) the trial court erred in excluding evidence of the victim's motive to fabricate the allegations against the Defendant; (3) the trial court erred in allowing the victim to remain in the courtroom following her testimony; (4) the trial court erred in denying the Defendant's motion for judgment of acquittal as to counts five and six; and (5) the Defendant's sentence was unlawful. Upon review, we affirm the judgments of the trial court.

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

          Brent Horst, Nashville, Tennessee, for the Defendant-Appellant, Petr Pompa.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Glenn Funk, District Attorney General; and Alyssa Hennig, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. and J. Ross Dyer, JJ., joined.



         On May 27, 2014, the Davidson County Grand Jury indicted the Defendant for sexual battery by an authority figure in counts one and two, statutory rape by an authority figure in counts three and four, and rape in counts five and six. The offenses were committed against the Defendant's minor stepdaughter, V.G.[1]


         The victim's mother testified that she met the Defendant in 1994 when they were both living in the Czech Republic and that they dated for a couple months. The Defendant later moved to the United States, and the victim's mother and the Defendant remained friends. The victim was born in 1995 and her father, who was not identified at trial, still lives in the Czech Republic. The victim's mother and the victim came to the United States in 1999, and they stayed in California with the Defendant. A few months later, the Defendant and the victim's mother were engaged, married, and then had a daughter together, G.P., in 2002. Eventually, the Defendant lost his job and decided to move to Tennessee, where he had a friend who could hire him as a carpenter. The victim's mother decided to stay in California with her two daughters because she was in the middle of her green card application process and did not want to remove her daughters from school. After the Defendant moved to Tennessee, the victim made a disclosure to her mother that something inappropriate had happened with the Defendant, and her mother contacted the authorities. The victim's mother cut off all contact with the Defendant.

         In 2010, the victim's mother began having financial difficulties in California and contacted the Defendant. The Defendant offered for the victim's mother and her daughters to move to Tennessee and live with him, and she eventually accepted the Defendant's offer. The victim's mother stated that she and the Defendant had agreed to "be separate as much as possible." When they moved to Nashville, the Defendant, the victim's mother, and her daughters shared a house. The victim's mother testified that she usually shared a bedroom with her daughters, although occasionally she would sleep on the sofa, and that the Defendant had his own room. Although the victim's mother was concerned about her daughters' safety living with the Defendant, she testified that she "didn't see any other option[s]." At the time of the move, the victim was in the ninth grade. The victim's mother and the Defendant began divorce proceedings in April 2013, and were officially divorced at the time of trial.

         The victim, who was twenty years old at the time of trial, testified that she was born in the Czech Republic on March 5, 1995. She came to the United States when she was four years old to live in California with her mother and her stepfather, the Defendant. She testified that she was living in Nashville in January 2013, and was seventeen years old and a senior in high school.

         One Saturday in January 2013, the victim was at home with her sister and the Defendant while her mother was at work. The victim testified that she was in the Defendant's bedroom with the Defendant while her sister was watching television in another room. The victim and the Defendant were talking while the Defendant sat in a chair at his desk and the victim sat nearby on his bed. The victim got up to leave and gave the Defendant a hug while he was sitting in his chair. The Defendant then placed his hand on the victim's breast. The victim testified that "I think he caught himself at this point and he asked what am I doing" and that, "[f]or some reason, I couldn't say anything." The Defendant then placed his hand underneath the victim's shirt and fondled her breast. In Czech, he asked "'Moci[?], '" which means, "'Can I[?].'" Again, the victim testified that she "couldn't say anything." When asked why she could not say anything, the victim explained that "It felt like I wasn't -- I honestly don't know. But it left [sic] like my senses were shut off and I could still see, I could still hear, but I couldn't, I was like I [sic] stuck inside."

         The Defendant then removed the victim's shirt and locked his bedroom door. He finished undressing the victim and laid her down on the bed. The victim testified that he then "put his tongue into my vagina, and he put his finger or two fingers into my anus." The victim recalled that the Defendant was kneeling on the floor by the bed and then got up, and she thought he was trying to kiss her. The victim then jumped off the bed, grabbed her clothes, dressed herself, and ran out of the Defendant's room and into the bathroom where she immediately took a shower.

         The victim testified that, while she was in the shower, the Defendant came into the bathroom and told her that he was worried she would "report him." The victim told the Defendant that she would not report him. The victim testified that, "[a]t the time, he was my stepdad and I didn't imagine putting my family member in jail." The Defendant remained in the bathroom when the victim got out of the shower and then asked or told her "did you like it" or "I knew you liked it." The victim responded that she did not.

         The victim maintained that she did not consent to the Defendant's actions. She testified that he did not threaten her during the incident, but that he had told her in the past that "if I knew someone was trying to rape me . . . it would be best to not fight back and not to, not to try to resist because if [sic] something worse could happen and you could end up dead or worse." The victim also recalled that when she was sitting in the Defendant's room with the Defendant he offered her some liquor and she "consumed between a sip and less than a cup." The victim did not tell anyone in her family what happened, but she told a friend from California because he was one of her "oldest friends, " and she did not want to report the incident yet because she "didn't know what the consequences would be."

         The following Friday, the victim told a friend from school, S.B., what happened. The victim identified text messages she sent to S.B. on January 17 and 18, 2013, and copies of the messages were introduced at trial. The victim texted S.B. and told him that "it happened again." The victim testified that S.B. "knew my stepdad had done something to me previous before this" and that it had occurred in California when she was thirteen or fourteen years old.

         Regarding the previous abuse in California, the victim explained that her stepfather was "roughhousing and wrestling on the bed, on the carpet" with her and "occasionally he would touch my breast and touch in the pubic area." The victim testified that "[i]t was mostly over my clothes, but there were some moments when it was skin on skin." The victim recalled at least four separate times that the Defendant inappropriately touched her while they were in California. The victim did not tell anyone because she thought it was "normal" and that "this is just what parents are supposed to do when they're playing with their kids." The victim recalled that she was uncomfortable with the touching and would scream, bite, and scratch the Defendant to get away from him, but that it rarely worked. The victim explained that she eventually told her mother about the Defendant's actions after he moved to Tennessee.

         The victim told S.B. that she was "drunk" and "half-conscious" when the abuse took place. However, the victim testified that she was not actually drunk or unconscious. She explained that "I think I was, I was still shocked as to why I didn't leave, why I let it happen, and I was trying to figure out why I hadn't left. I also was ashamed. I couldn't bring myself to text that I just stayed there and didn't do anything." S.B. told the victim to call the police and that, if she did not, he would. The victim testified that she needed to tell someone what happened but did not want to report the Defendant yet because "[the Defendant] was still [her] stepdad and [she] didn't want to break up the family." The victim asked S.B. not to contact the police and tried to convince him that she was alright, but S.B. reported the incident.

         Following S.B.'s report to the police, the school resource officer at the victim's school, Officer Turner, removed the victim from class and took her to his office. Officer Turner asked the victim about the incident, and the victim "tried to reassure him that nothing was wrong, that whatever I was crying about was something else." The victim acknowledged that it is possible she told Officer Turner "it's a boy thing" and that she was still trying to protect the Defendant at that time. The victim testified that she felt intimidated by Officer Turner's questioning.

         Next, Officer Turner took the victim to see the guidance counselor, April Gung. The victim testified that "[Gung] opened the door [to her office] and stood there with her arms outstretched, and I hugged her and I broke down and cried." The victim then told Gung what the Defendant had done to her. The victim explained that it was easier for her to tell Gung than Officer Turner "because she was female and I knew her better."

         The victim testified that, aside from the sexual assaults, the Defendant was a good father. When asked whether the Defendant had conversations with the victim about "sexual activities in general" the victim stated that "[the Defendant] would ask about how far I had gone with anyone I was, anyone I had a crush on, anyone I was thinking of dating." The victim also testified that, about a week prior to the allegation, she and her boyfriend had ended their relationship. The victim testified that she was upset and depressed about the break-up.

         On cross-examination, the victim agreed that she had felt no fear of physical harm from the Defendant and that he did not physically force her. The victim also acknowledged that, a week after the rape, she stated that the Defendant never meant to rape her. The victim disagreed that the Defendant was a friend and testified that he was "a parental figure." The victim acknowledged that it was possible the Defendant had attempted to tell her not to see her ex-boyfriend.

         S.B. testified that he previously attended high school with the victim and that they were classmates and good friends. He identified the previously introduced text messages between himself and the victim and testified that he spoke with the victim on the phone after they were texting and that "[s]he seemed very scared, very almost frantic." S.B. confirmed that he reported what the victim told him to the police.

         Officer Steve Turner with the Metro Davidson County Police Department testified that he was the school resource officer at the victim's high school in January 2013. During that time, Officer Turner received a phone call from the Nashville Police Department dispatcher who said a former student, S.B., had called. Officer Turner spoke with S.B. who read Officer Turner the text messages that he received from the victim. Officer Turner then called the victim to his office. The victim told Officer Turner that she was "having some problems" but would not give him any details. Officer Turner testified that the victim said it was a "boy thing."

         April Gung testified that she was a school counselor at the victim's high school during January 2013. Gung spoke with the victim on January 18, 2013, in her office and testified that the victim was upset, stressed, and crying. Gung recalled that she knew the victim and that she was generally calm and reserved and "not one to be attention seeking." Gung testified that the victim made a disclosure to her about what had happened. The victim was concerned about how the disclosure would affect her family, particularly her younger sister. After the conversation, Gung reported the disclosure to the Department of Children's Services.

         Detective Jason Mayo testified that he was assigned to the Sex Crimes Division of the Metro Nashville Police Department. Detective Mayo received information about the victim's case and went to her high school to interview her. The victim told Detective Mayo about the Defendant's actions. Detective Mayo recalled that the victim was very quiet and kept her head down while she spoke and that she was "obviously upset" and had been crying.

         On cross-examination, Detective Mayo testified that he spoke with Officer Turner before he spoke with the victim. Officer Turner informed Detective Mayo that the victim had made a disclosure to the guidance counselor. Officer Turner also informed Detective Mayo that the victim had denied anything happened when she spoke with him and that "it was about a boy" but that "he felt there was something else going on." Detective Mayo testified that "it was understood that the reason [the victim] said that was because she was trying to deflect at the time because of what was really going on that she didn't want to talk about."

         After Detective Mayo's testimony, the State rested and the Defendant moved for a judgment of acquittal, which the trial court denied. The Defendant presented testimony from Loren Batts, who was the owner of the home where the Defendant and his family lived in Nashville. Batts testified that, at the time, she was dating Stuart Levine, who was the Defendant's friend and co-worker.

         Stuart Levine testified that he had known the Defendant for at least ten years and had lived with him in California. When Levine moved to Tennessee, he invited the Defendant to come work for him. Levine recalled that the Defendant treated the victim like his own daughter and that he seemed to treat her well. Levine testified that, on Sunday, January 13, 2013, he was at the Defendant's home to fix a leak in the roof. Levine recalled that the Defendant, the victim, and her younger sister were playing musical instruments together "just having a time." Levine also recalled that, the following Tuesday, he observed the victim hug the Defendant in the kitchen. The Defendant was arrested a few days later. Levine testified that he talked to the victim about the allegations she had made against the Defendant in California and that the victim told him "it was her mother's doing."

         On cross-examination, Levine acknowledged that he did not testify about the events he saw in the Defendant's house when he testified at a prior juvenile court hearing involving the victim and the Defendant. Levine also confirmed that he did not tell the Defendant about the conversation he had with the victim discussing the prior abuse in California.

         The Defendant testified that he was fifty-two years old and was born in the Czech Republic. The Defendant came to the United States in 1992 and is now a United States citizen. He met the victim's mother in the Czech Republic and she later moved to the United States with the victim and lived with the Defendant. The Defendant and the victim's mother were married in August 2001 and their daughter was born in June 2002. The Defendant testified that they began having marital problems in 2006. Eventually, they decided it would be a good idea for the Defendant to move to Tennessee for work.

         After the Defendant moved to Tennessee, the victim's mother stopped contacting him. He returned to California to meet with the victim's mother and was served with a restraining order alleging that he had fondled his stepdaughter, the victim. The Defendant denied inappropriately touching the victim, returned to Tennessee, and the restraining order was eventually lifted. The victim's mother informed the Defendant that she wanted a divorce, and they initiated divorce proceedings, which were never completed.

         The Defendant testified that the victim's mother later contacted him about moving to Tennessee because they could no longer afford to live in California. The Defendant agreed and brought the victim's mother and her daughters to Tennessee. The Defendant and the victim's mother began having marital problems again after they were reunited in Tennessee. The Defendant proposed moving the family back to the Czech Republic but the victim's mother and the victim were not interested. By January 2013, the Defendant and the victim's mother were staying in separate rooms and again discussing the possibility of divorce.

         The Defendant testified that, on January 12, 2013, he was speaking with the victim about the possibility that he and the victim's mother were going to get a divorce and informed her that he wanted custody of her younger sister. He stated that they also discussed the possibility of moving back to the Czech Republic, the victim's recent break-up with her boyfriend, and other topics, like the victim's college applications. The Defendant was arrested the following Friday. While the Defendant was in jail, the victim's mother filed for divorce. Based on the criminal charges, the Defendant testified he was not able to see his daughter. The Defendant denied raping or inappropriately touching the victim.

         On cross-examination, the Defendant stated that he and the victim had a typical father-daughter relationship. The Defendant confirmed that, on January 12, 2013, he was talking to the victim in his bedroom. The Defendant also confirmed that he was sitting in a chair at his desk and that the victim hugged him after they finished their conversation. The Defendant also admitted to keeping a bottle of Absinthe liquor in his bedroom. The Defendant denied asking the victim about her sexual activities but agreed that he might have told her that if she was ever attacked or raped that she should not fight back.

         The Defendant was aware of the victim's relationship with her boyfriend and agreed that he told the victim that he did not want her to date him and that her boyfriend could not come to the house. The Defendant testified that the victim and her boyfriend broke up in early January 2013 and that it upset the victim.

         Based on the above testimony, the jury returned a verdict of guilty for two counts of sexual battery by an authority figure and two counts of statutory rape by an authority figure. The jury could not reach a decision on the two rape charges, and the trial court declared a mistrial as to those counts.

         Sentencing Hearing.

         On December 4, 2015, the trial court held a sentencing hearing. The State presented testimony from one witness, the victim.

         The victim testified that she was physically and emotionally affected by the Defendant's actions. She was in counseling and suffered from nausea, insomnia, nightmares, panic attacks, and high cholesterol levels due to stress. She stated that she felt worthless and guilty for breaking her family apart and noted the additional stress on her mother as a single-parent. The victim testified that she suffers from flashbacks and has a hard time creating new relationships with people. She stated that she has anxiety around men and especially with men around kids.

         Additionally, the victim testified that, with the Defendant incarcerated, she and her mother were financially burdened and that she had to attend a nearby college and take on a parental role with her younger sister. The victim stated that she wanted her younger sister to be safe and wanted the Defendant to be in jail or kept away from her younger sister until she turns eighteen.

         The trial court found that enhancement factor (4), that a victim of the offense was particularly vulnerable because of age, applied because the victim was a minor and it had left her emotionally scarred. Accordingly, the trial court sentenced the Defendant to four years for each count as a Range I, Standard Offender. The trial court stated that three counts would run concurrently and that one count would run consecutively to the other three, resulting in an effective sentence of four years served followed by four ...

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