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State v. Love

Court of Criminal Appeals of Tennessee, Knoxville

March 21, 2017

STATE OF TENNESSEE
v.
TROY LOVE

          Session September 20, 2016

         Appeal from the Criminal Court for Knox County No. 101879 Steven Wayne Sword, Judge

         The Defendant, Troy Love, was found guilty by a Knox County Criminal Court jury of two counts of rape of a child, a Class A felony, and of aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-13-522 (2014) (rape of a child), 39-13-504 (2014) (aggravated sexual battery). He was sentenced to consecutive terms of twenty-five years each for the rape of a child convictions and to a concurrent term of ten years for aggravated sexual battery, for an effective sentence of fifty years to be served as a Violent Offender. On appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress his pretrial statement, (2) the court erred in denying the Defendant's pretrial motions relative to interaction between the victim and State agents and for a "taint hearing" to determine the victim's reliability, (3) the court erred in failing to conduct a pretrial hearing to corroborate the reliability of the Defendant's pretrial statements, (4) the court erred in denying the motion for a directed verdict and for judgment of acquittal, (5) the evidence is insufficient to support the convictions, (6) the court and the prosecutor improperly referred to "Count 8" despite the fact that only three counts were submitted to the jury, (7) the court erred in its jury instructions, (8) the sentence is improper, and (9) due process requires relief due to the existence of cumulative error. We affirm the rape of a child convictions, and we reverse the aggravated sexual battery conviction and remand for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part, Reversed in Part; Case Remanded

          Megan A. Swain (on appeal) and Chloe Atkin Akers (at trial), Knoxville, Tennessee, for the appellant, Troy Love.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Charme Allen, District Attorney General; Christopher "Kit" Rodgers and Ashley McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         The Defendant's convictions relate to sexual abuse of his step-great-granddaughter. At the trial, the victim, who was nine years old at the time of the trial, testified that she knew the difference between a good touch, such as a hug, and a bad touch, which she described as "someone's touching you in a part you don't like." She said bad touches had occurred when the Defendant touched her "private parts" and her "butt" with his fingers and his mouth. Using a diagram of a female and a male child, she identified the areas corresponding to the "private" and "butt." She said the touching began when she was six years old and continued until she was eight. She said it occurred in the Defendant's living room and bedroom.

         Relative to an incident in the Defendant's bedroom, the victim testified that as she watched television, the Defendant came into the room, went under the sheets, and touched her "private" with his mouth. She said the Defendant's actions made her sad.

         Relative to an incident in the Defendant's living room, the victim testified that as she napped on the couch, the Defendant came to the couch where she was sitting, that she moved to the end of the couch, and that the Defendant touched her private with his finger and his mouth. She thought she was in second grade when this incident occurred.

         Relative to an incident in the movie room at her old house, the victim testified that she sat on the couch, wore "footsies, " and watched a movie. She said the Defendant unzipped her clothing and touched her private with his finger. She said his finger did not go inside her.

         When asked whether the Defendant touched her privates on any other occasions, the victim said he did not. She said the Defendant never put anything, including his finger or his private, in her private. She likewise stated that she could not recall any other incidents in which he touched her body with other parts of his body.

         The victim testified that the Defendant's wife had passed away, that she had spent a lot of time with the Defendant and his wife, and that she visited frequently at their house. She said she called the Defendant "Troy."

         The victim testified that when she was in second grade, her mother and her grandmother took her to a place with a Wii gaming system and that she talked to a woman and made drawings with her. She said she told the truth to the woman and did not tell her anything that was not true. She said her mother and grandmother were not in the room when the woman talked to her. She recalled the woman's stating that video cameras were recording what happened. She agreed she told the woman that her "grandpa" had touched her in places she did not like. She agreed she told the woman the incidents began after the Friday on which the victim had her tonsils removed. She agreed that the incident she described in the Defendant's bedroom occurred on the Sunday after her tonsils were removed and that she had told the woman who interviewed her that she had asked to go to the Defendant's house that day. She agreed she had told the woman that she went home on Monday and told her mother on Tuesday about the touching. She agreed that the woman drew a timeline based on the interview, and the timeline was received as an exhibit.

         The victim testified that she did not remember the woman asking her if the Defendant ever put his private in her private. After reviewing a portion of the video recording outside the presence of the jury, the victim testified that watching a video recording had helped her remember what she said. She said she told the woman the Defendant had put his private in her private. She did not recall if the woman asked how the victim's body felt when the Defendant did this, but she later said she remembered telling the woman her body felt tingly after the Defendant put his private in her private. She remembered telling the woman that the Defendant lay on top of her when he put his private in her private. She recalled telling the woman that the Defendant did not have to do anything to his private part before putting it inside her and that it was inside her, not just close to her private part. She remembered telling the woman that she was five years old the first time the Defendant put his private part in her private part. She recalled telling the woman that the Defendant put his private part in hers seven or eight times and that she never saw the Defendant's private part. The victim recalled telling the woman that she did not remember how the Defendant's private part felt.

         The victim identified a drawing she made for the woman who interviewed her, and it was received as an exhibit. She recalled telling the woman that the drawing showed "where the pee comes out of." She recalled telling the woman that when she went to the bathroom "that night, " she saw something that looked like "boogers" in the part of her underwear that "went under her private."

         The victim acknowledged that she had testified that the Defendant did not put his finger in her private. She remembered telling the woman who interviewed her that the Defendant had put his finger in her private, and she recalled showing the woman what the Defendant did with his finger but did not recall what she had done.

         The victim testified that she had her tonsils removed when she was seven and one-half years old and that she told her mother about the abuse after she had her tonsils removed. She said she told "Jessica" about the abuse before she told her mother. She did not recall what she told the woman who interviewed her when the woman asked why the victim told Jessica about the abuse.

         The victim acknowledged her previous testimony that she did not remember what she told the woman who interviewed her about what the Defendant did with his finger inside the victim and said that watching the video recording had not helped her remember. A portion of the recording was played for the jury, and the court noted that it pertained to "this question that [the prosecutor] just asked [the victim]." The court instructed the jury that its consideration of the recording was limited to matters concerning the victim's credibility and was not to be considered as substantive evidence.

         The victim testified that after viewing the recording, she recalled why she decided to tell Jessica about the abuse. The victim said she told the woman who interviewed her that she told Jessica because it was something important. The victim acknowledged that in the recording, she told the woman that she and Jessica had talked about their favorite people and that the victim had said her "uncle" was her favorite person because he had touched her "in the bad spots." The victim testified that no one other than the Defendant had touched her in "private spots."

         Knox County Sheriff's Detective Miranda Spangler testified that she spoke by telephone with the victim's mother on January 14, 2013. She said she met with the victim's mother and the victim's grandmother and conducted a brief interview of the victim's mother. Detective Spangler said she asked the victim's mother to participate in a "one-party-consent call" with the Defendant, which Detective Spangler said involved a person making a telephone call with a detective guiding what the person said. Detective Spangler said the person who made the call would know that the call was being recorded but the recipient would not.

         Detective Spangler testified that the victim's mother made multiple one-party-consent calls to the Defendant. Detective Spangler said that because the victim's mother had blocked the Defendant's telephone number on the victim's mother's cell phone, the victim's mother used the victim's grandmother's cell phone to make the calls. Detective Spangler said the Defendant initially answered calls but eventually stopped answering.

         Detective Spangler agreed that a friend or family member, rather than a police officer, was used for one-party-consent calls because the call's recipient might be more willing to talk to the person making the call. Detective Spangler agreed that she gave the victim's mother some instructions about what to say. She said that she listened to what suspects said in one-party-consent calls and that she sometimes advised callers about what to say in order to keep the suspects talking. She agreed that she told the victim's mother to tell the Defendant he owed it to her to talk about what happened with the victim.

         The January 14, 2013 recording of the calls was played for the jury and reflects the following: A call was placed, and a message was received stating that the caller was not authorized to call the number. In the second call, the victim's mother identified herself to the Defendant and asked why he "did this" to the victim. The Defendant's response is unintelligible. The victim's mother stated she wanted to know what he did to the victim, and the Defendant responded that he could not talk about it now. The victim's mother stated that he had no choice. The victim's mother stated that the Defendant hung up. In a third call, the victim's mother told the Defendant that he owed it to the victim's mother and the victim to tell the victim's mother why he had done "this." She stated that the Defendant hung up again. In a fourth call, the victim's mother told the Defendant to quit hanging up and stated he had to talk to her about "this." She stated he owed it to her and her daughter, who had loved and trusted him. The Defendant stated, "I know, honey. I didn't mean to do it." He said, "I gave in, and I shouldn't have." The Defendant stated that he was depressed, that he did not know why he did it, that it was horrible, and that he wished he were dead. The victim's mother stated that the victim said the Defendant "put something in her" and asked what he put in the victim. The Defendant repeated, "that I put something in her." The victim's mother asked what he did and then stated that the Defendant hung up. Fifth and sixth calls were placed, and a voicemail message began playing in both. Following discussion about making a call from a different telephone number, a seventh call was placed, which reached a voicemail recording. Between the calls, the victim's mother talked to Detective Spangler and Travis Bishop, an employee of the Department of Children's Services, about how the victim's mother should proceed in speaking to the Defendant.

         Detective Spangler testified that on January 14, 2013, a forensic interview of the victim occurred at Child Help. Detective Spangler said that they located the Defendant because the victim's mother, who paid for the Defendant's cell phone service, placed a tracking device on his cell phone. Detective Spangler said she, Detective Faulkner, and Mr. Bishop followed the Defendant from a business to the Defendant's home with information from the tracking device.

         A voicemail message that the Defendant left for Detective Spangler on January 22, 2013 was played. In it, the Defendant stated that he was calling Detective Spangler in response to her questions about allegations of sexual abuse of the victim. He stated that he was impotent and unable to have sex and that he had been unable to have sex with his wife before her death. He stated that he had "issues" with the victim and that she had a history of lying. He stated that the victim had told him she had sex with two boys but that she would not tell him the boys' names. He stated that the victim had "issues" with "sexual things" and "honesty and telling the truth." He said the victim told him that she had seen her father and stepmother engaged in sexual activity. He said the victim had stolen $120 from his wallet, which was inside a drawer.

         Detective Spangler testified that after she received this voice mail message, she gathered her information and gave it to the district attorney's office. She said that after the grand jury returned an indictment, she checked with the victim's mother about the cell phone tracking information relative to the Defendant's location and that he was arrested in Battle Creek, Michigan based on that information. She acknowledged that the victim's grandmother had told her previously that the Defendant was from Michigan, had family there, and would go there if he left Tennessee.

         Detective Spangler agreed that after the forensic interview, she had the victim's grandmother attempt to make a one-way-consent call but that the Defendant did not answer. Detective Spangler agreed that she made arrangements for the victim's grandmother to make another one-way-consent call later that day, although she ultimately told the victim's grandmother not to make the call after receiving advice from the prosecutor. Detective Spangler agreed that on the morning of January 14, 2013, the victim's grandmother told her that the Defendant left a voice mail message in which he said he wanted to talk to the victim's grandmother about something important.

         Relative to the victim's forensic interview at Child Help, Detective Spangler testified that in a forensic interview, a child was alone with a trained interviewer who was not biased and did not ask leading questions. She said she and Mr. Bishop watched the interview. She agreed that the victim first made allegations against the Defendant on January 8, 2013, and that the forensic interview occurred on January 13. She agreed that after watching the forensic interview, she and Mr. Bishop talked to the victim's mother and the victim's grandmother to see if the victim's account could be corroborated and noted that children are not good with "their times, their timeline."

         The victim's grandmother testified that the Defendant was her stepfather and that her mother had passed away from hip replacement complications in 2012.

         The victim's grandmother testified that the Defendant's abuse of the victim came to light on January 8, 2013, when the victim told her babysitter, Jessica, about it. The victim's grandmother said the babysitter notified the victim's mother, who notified the victim's grandmother. The victim's grandmother said she called the Defendant on the day the victim revealed the abuse and asked him about the allegations, but he said he was at work and could not talk. She said that she received a voicemail message to call the Defendant and that they talked. She said he left messages for her on January 8 and January 14.

         A voicemail message that the Defendant left for the victim's grandmother on January 8, 2013 was played. In it, the Defendant stated that he wanted to talk to her about what she called about earlier that day. The Defendant stated that he had not wanted to talk around others earlier and that he did not have sex with the victim "or anything like that." He stated that the victim "makes up stories" and that she had told him she had had boyfriends and had sex but that he had not believed her. He said he had asked the victim to identify her boyfriends but that she did not. He said he thought the victim exaggerated things. He said he and the victim wrestled but did not do anything sexual.

         The victim's grandmother testified that she called the Defendant after she received the preceding voicemail message and asked what was going on and why the victim made the allegations. She said he stated that he did not know, that he had been depressed, that he was sorry, and that if the victim's family did not notify the police, he would leave town and they would never see him again. She said the Defendant stated that he could not go to jail and would rather die. She said the Defendant put his house on the market and left town within three weeks to one month. She agreed that she told Detective Spangler she had the ability to see the Defendant's cell phone records because she paid for his service and thought she told Detective Spangler that she had not seen any calls from the Defendant to his relatives in Michigan between January 8 and January 14, 2013. After reviewing a recording outside the presence of the jury, the victim's grandmother agreed that at Detective Spangler's direction on January 14, she attempted to make a one-party-consent call to the Defendant after the calls placed by the victim's mother.

         The victim's grandmother agreed that the victim's tonsils were removed around the time the victim first made the allegations on January 8, 2013. The victim's grandmother agreed that the victim was emotional. The victim's grandmother agreed that she told Detective Spangler and Mr. Bishop that the victim had not seemed like anything was wrong immediately after the last time the victim spent the night at the Defendant's house. The victim's grandmother thought it was unusual that the Defendant dropped off the victim without checking to see if the victim's grandmother was home but acknowledged she did not know if her son, who lived with her, had been home. She said her husband had been at work on this occasion. After reviewing a recording outside the presence of the jury, the victim's grandmother agreed that the last time the victim spent the night at the Defendant's house was "right when they got out for Christmas break." When asked whether it could have been on Christmas Eve, the victim's grandmother could not recall the date but stated it would not have been unusual for the victim to have spent the night away from home on Christmas Eve because the family was of the Jehovah's Witness faith and did not celebrate Christmas. The victim's grandmother agreed that she did not know every time the victim spent the night at the Defendant's house.

         The victim's grandmother testified that her sister was married, that the Defendant lived with the sister, and that the victim sometimes spent the night at the sister's house. The victim's grandmother said the victim had never stated that anyone other than the Defendant touched her inappropriately.

         At the close of the State's proof, the trial court granted a motion for judgment of acquittal for counts three and four of the indictment, which alleged rape of a child by vaginal/oral penetration and vaginal/digital penetration, respectively. The remaining counts for the jury's consideration consisted of counts one and two, each alleging rape of a child by vaginal/oral penetration, related to an act at the Defendant's house on his bed and to an act on the couch in the Defendant's living room, respectively, and count eight, alleging aggravated sexual battery by vaginal/digital contact, related to an act in the movie room of the victim's old house.

         The victim's mother testified as a defense witness that the victim never told her "completely" about the allegations. The victim's mother said the victim had not had any contact with the Defendant since making the allegations.

         The victim's mother testified that the victim's tonsils were removed on January 4, 2013. The victim's mother said that following the surgery, the victim stayed primarily with the victim's mother and "Jessica." She said the victim did not stay with the Defendant after the victim's tonsils were removed. The victim's mother said the victim never stated that anyone other than the Defendant touched the victim.

         The victim's mother testified that she did not know of a time when the victim suddenly had $120 in cash. When asked if she would know if the victim had $120, the victim's mother said she would not.

         The Defendant testified that he did not commit the acts to which the victim testified. He denied putting anything inside the victim. He denied touching her inappropriately. The Defendant stated that he, his wife, and his two stepdaughters moved from Michigan to Tennessee in 1980. He said that he lived in Knoxville for thirty-three years, until 2013, during which time he worked as a housepainter. He said that, aside from the present charges, he had never been arrested, convicted of a crime, or accused of anything similar.

         The Defendant testified that his wife died on June 5, 2012, from hip surgery complications. He said that they had been married for thirty-three years, that her death was unexpected, that he was depressed afterward, and that it took him a long time to get over her death. He said he had financial difficulty after her death, that he had to sell his car, and that he was facing foreclosure of his home mortgage. He said he had been unable to find work in Knoxville.

         The Defendant testified that he had been impotent since shortly before his wife's death. He said he did not seek medical treatment because he had been busy taking care of her and trying to make a living. He said he did not seek treatment after her death because he was depressed and "wasn't worried about that kind of thing." He said he was not thinking about having sex with anyone at that time.

         The Defendant testified that the victim grew up with him as her great-grandfather, that they were close, and that he had taken her and her brother fishing. He said she last stayed overnight at his house in December 2012. He said that it was not unusual for the victim to spend the night at his house and that the victim and her brother stayed there. Relative to the victim's last overnight visit, he said that he slept in his bed upstairs and that she slept downstairs on the couch. He said that the victim never came into his bedroom that night, that they would have watched television or movies in the living room, and that he never "went downstairs to the couch" that night. He denied putting his mouth on her vagina that night. He said that the next day, he took her to visit her cousins and then took her to her grandmother's house. He said he "took her up to the house" and would not have left her if no one had been home, but he did not recall who had been home.

         The Defendant recalled that he received a telephone call from the victim's grandmother on January 8, 2013, regarding allegations the victim made against him. He said he had been at work and unable to talk about personal matters and that he returned her call later. He said he denied the allegations in a voice message he left for the victim's grandmother "[b]ecause it didn't happen." He did not recall having a January 14 conversation with the victim's grandmother in which he said he would rather die than go to jail. He said that he received six or seven "harassing-type" calls on January 14, in which the unidentified callers wanted him to admit wrongdoing. He said he was angry and kept hanging up. The Defendant denied that he called the victim's mother and "basically admitted" the victim's allegations and that he said he would "disappear." He denied saying he would rather be dead than incarcerated and said the victim and the victim's mother lied in their testimony when they said otherwise.

         The Defendant addressed the January 14, 2013 telephone call, a recording of which was played during the State's case-in-chief. Regarding his statements in the call that he did not mean to do it, that he gave in, and that he should not have given in, he said he meant it as an apology for not having told the victim's mother about the victim's having said to him that she had sex with two boyfriends. He said the victim also stated she had seen her mother and stepfather having sex. He said that he had not told the victim's mother because he had not believed the victim and stated that the victim was "having issues" and had stolen $120 from his wallet. He said he regretted not telling the victim's mother about what the victim had said because if he had told her, she "maybe . . . wouldn't have been telling lies about" him. When asked if his statements were in reference to having touched the victim or put his mouth on her vagina, he responded, "Of course not." He said he had stated he wished he were dead because everything in his life was going wrong. He noted his wife's death, his financial problems, his unemployment, the victim's accusations, and his family's disowning him. He said he felt like his "life was a hell." He said he had not wished he was dead because he had put his mouth on the victim's vagina or touched her inappropriately. The Defendant acknowledged, however, that his response about not having meant to do it, having given in, and that he should not have given in had been in response to the victim's mother's question asking why he had "done this" to the victim. He acknowledged his apology had been vague. He also acknowledged that he knew the victim had made sexual allegations against him when he said it. He did not recall stating in the telephone calls that he was weak but agreed that if the recording reflected he had said it, he did.

         The Defendant testified that he did not have anywhere to stay in Knoxville in February 2013 and that none of his family in Knoxville was speaking to him. He said he went to Michigan to be with family, have a place to stay, and look for work. He said that in Michigan, he was able to stay with his brother and that he found work. He said he leased his Knoxville house to someone who was eventually able to obtain a mortgage and purchase it.

         The Defendant agreed that he had raised the victim's grandmother, who was his stepdaughter, and that they were close and trusted each other at the time the victim made the allegations.

         After receiving the proof, the jury found the Defendant guilty of rape of a child for the vaginal/oral penetration occurring at the Defendant's house on his bed, guilty of rape of a child for the vaginal/oral penetration occurring on the couch in the Defendant's living room, and guilty of aggravated sexual battery for the vaginal/digital contact related to an act in the movie room of the victim's old house. After the Defendant was sentenced to serve an effective fifty years, this appeal followed.

         I

         Motion to Suppress

         The Defendant contends that the trial court erred in denying his motion to suppress evidence of the recorded telephone calls between the Defendant and the victim's mother. He characterizes his statements in these calls as statements to law enforcement because they occurred under Detective Spangler's direction of the victim's mother and had the effect of harassing him and overbearing his will. The State contends that the Defendant failed to establish that his will was overborne and that the trial court correctly denied the motion to suppress. We agree with the State.

         The trial court conducted a pretrial hearing on the Defendant's motion to suppress evidence of the calls. At the hearing, Detective Spangler's testimony was consistent with her trial testimony regarding the circumstances surrounding the calls. Generally, she arranged for the victim's mother to make the calls in Detective Spangler's office in the presence of Detective Spangler and Mr. Bishop. She said the victim's grandmother was also present. The recording of the calls was received as evidence. Detective Spangler said she instructed the victim's mother about what she should say in the calls. The detective recalled that before the first and third calls, she told the victim's mother to say the Defendant "owed it to" the victim's mother to tell her what happened with the victim. Detective Spangler stated that she told the victim's mother to "just let him talk to find out what's going on" and what he had done to the victim.

         The victim's mother testified that she called the police on January 14, 2013, because the Defendant had called her mother and asked her mother to find out if the victim's mother would not involve the police if he agreed to leave town. She said that before she went to the police station that day, she had spoken with the Defendant by telephone and told him that she would not "let him get away with hurting" the victim. She said she had not asked him about the victim's allegations in that conversation. She could not recall whether Detective Spangler or Mr. Bishop asked her to make the recorded calls and did not recall whether Detective Spangler instructed her about what she should and should not say. She said, however, that Detective Spangler did not tell her to make any promises or threats to the Defendant. She said she asked him what he did and why he did it because she wanted to know.

         In denying the motion to suppress, the trial court made the following factual findings and conclusions of law:

[The victim's mother] placed a series of telephone calls to the defendant within a very short period of time, to the extent that the calls, although separated by multiple disconnections, were in fact akin to a single encounter. The entirety of the conversation was less than four minutes. During the first call, the defendant immediately answered the first question asked by [the victim's mother] stating that he did it because he was depressed. He then stated he could not "talk right now." The defendant hung up without saying anything else. The courts finds the act of hanging up to be less of a declination to speak about the subject than a desire not to speak about it at that particular time. He started the call by willingly explaining his actions. Only after a specific question did the defendant stop the conversation. [The victim's mother] called again and the defendant immediately hung up without saying anything. This evinces more of a desire not to talk on the phone at that time.
[The victim's mother] called a third time and informed the defendant that he had to speak with her about this subject at this time; that he "owed it to her and her daughter, " the alleged victim. The defendant then immediately began to discuss his actions by saying he didn't mean to do it, that he gave in and shouldn't have, that [it] was horrible, and that he wished he were dead. After being confronted by [the victim's mother] with a question regarding penetration, the defendant hung up again. Again, it appears that the defendant was willing to discuss the situation in general terms, but did not want to discuss specifics of his actions.
[The victim's mother] then placed three more calls in quick succession. The defendant never answered the phone again. The court finds that the act of not answering the phone a fourth time was the first clear indication that the defendant was unwilling to discuss the situation on the phone at all. It also ...

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