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State v. Batts

Court of Criminal Appeals of Tennessee, Nashville

March 27, 2017


          Assigned on Briefs June 21, 2016

         Appeal from the Criminal Court for Davidson County No. 2012-B-1185 J. Randall Wyatt, Jr., Judge

         A Davidson County Criminal Court Jury convicted the Appellant, Tyrone Batts, of two counts of rape, a Class B felony; one count of attempted rape, a Class C felony; and one count of robbery, a Class C felony. After a sentencing hearing, the Appellant received an effective thirty-six-year sentence. On appeal, the Appellant contends that the evidence is insufficient to support his robbery conviction, that the trial court erred by allowing a nurse practitioner to testify about statements made by the victim, that the trial court erred by allowing the prosecutor to make improper comments during the State's closing arguments, that his separate convictions for rape and attempted rape violate due process and double jeopardy, and that the trial court erred by imposing the maximum punishment in the range for each offense and consecutive sentencing. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

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

          Jeffrey A. DeVasher and Emma Rae Tennent (on appeal) and Martesha L. Johnson and Jonathan Wing (at trial), Nashville, Tennessee, for the appellant, Tyrone Batts.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn R. Funk, District Attorney General; and Amy M. Hunter and Mindy Morris, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Timothy L. Easter, JJ., joined.



         I. Factual Background

         In May 2012, the Davidson County Grand Jury indicted the Appellant for two counts of rape, one count of attempted rape, and one count of robbery. Subsequently, the trial court ordered that he have a psychiatric evaluation at Middle Tennessee Mental Health Institute (MTMHI) to determine his mental competency. On March 31, 2015, the trial court found the Appellant competent to stand trial, and he proceeded to trial on April 6, 2015.

         The victim testified that in February 2012, she was a student at Vanderbilt University. On the night of Friday, February 10, the victim was planning to meet some friends for a concert. She said that she walked to the on-campus parking garage where she always parked her car and that "plenty" of cars were in the garage. When the victim got to her car, she opened the door and perceived someone immediately behind her. She said that she knew something was wrong and that she was terrified.

         The victim testified that she turned around and that a man, whom she later identified as the Appellant, pushed her into her car. He unfastened his pants and "forced [her] head onto him." The victim was gagging and "trying to reason" with him, but he kept forcing her mouth onto his penis. She said that the Appellant told her to "'suck his [d***]'" and that his penis went into her mouth. After a couple of minutes, the Appellant "pushed [her] down, " lifted her dress, and "went down on [her]." She stated that he put his lips and tongue on and inside her vagina. The State asked if she was afraid, and the victim responded, "Yes. . . . I didn't know what he had, if he had like a gun or knife or anything and I didn't want to find out, so I just again did what I needed, what I felt like I needed to do just to survive." She said that she kept "trying to talk him out of it" and that she was "hoping that he would just stop." About one minute later, the Appellant stopped putting his mouth on her and tried to penetrate her vagina with his penis but was unable to do so. The victim explained that the Appellant was nervous and "kept looking around because at any moment, really, someone could have driven by or walked up."

         The victim testified that after the Appellant was unable to penetrate her, he "pulled [her] back up and told her to "'keep sucking his [d***].'" She acknowledged that the Appellant was holding the back of her head and pushing his penis into her mouth. He continued to do so until he ejaculated onto her chest, face, and eye. The Appellant then asked the victim if she had any money. The victim was in shock, scared, and "just wanted him to go." She said she was still terrified and gave him the money from her purse. The Appellant left, and the victim shut and locked her car door. She telephoned the police and drove to a nearby Mexican restaurant.

         The victim testified that the incident occurred about 7:00 p.m. and lasted ten minutes or less. Her car door was open, and the Appellant had an erection the entire time. It was dark outside, but the lights in the parking garage were on and the area was bright. An ambulance arrived at the Mexican restaurant and transported the victim to the hospital. She spoke to a police officer, and a nurse practitioner collected evidence for a rape kit. A couple of days later, a detective showed the victim a photograph array, and she selected the Appellant's photograph. She said she had never seen or spoken to the Appellant prior to February 10, 2012.

         On cross-examination, the victim acknowledged that she viewed the photograph array at the police department on February 13. She also acknowledged that prior to viewing the array, she had been told that the police had a suspect. After she selected the Appellant's photograph, the police confirmed that he was the suspect. On redirect examination, the victim testified that she was 100% certain the Appellant was her attacker.

         Officer Dustin Chester of the Metropolitan Nashville Police Department (MNPD) testified that on February 10, 2012, he was dispatched to the Qdoba Grill for a "rape call." Officer Chester was "just around the corner" from the restaurant, which was directly in front of the Terrace Parking Garage, and arrived almost immediately. Less than one minute later, the victim's car pulled up. Officer Chester said that the victim was very distraught, that she was crying profusely, and that "you could tell that she had just been [through] something that . . . obviously scared her." A white liquid that appeared to be semen was on the victim's face.

         On cross-examination, Officer Chester testified that the victim described her attacker as an African-American male, twenty to thirty years old, six feet tall, and weighing 200 pounds. She said he was wearing a black shirt and blue jeans.

         On redirect examination, Officer Chester testified that the victim told him that the man "made her perform oral sex on him and then pushed her further into the car where he lifted her dress and performed oral sex on her." She did not think the Appellant's genitals penetrated her genitals. The victim said that "at the end" of the attack, the man told her to give him all of her money. She gave him $23.

         Sergeant Ryan Finnegan of the MNPD testified that he heard about the incident over the police radio and was responsible for securing the parking garage. He used his police car to block one of the exits, and he and other officers cleared the stairwells and each level of the garage. He said that the lighting in the garage was good and that he had to use his flashlight only to look into individual vehicles. The police did not locate a suspect that day.

         Pamela Crues testified by video deposition that she was a nurse practitioner in the emergency room at Nashville General Hospital. On the night of February 10, 2012, Ms. Crues interviewed the victim at the hospital. The victim told Ms. Crues that her assailant forced her to "perform oral sex" on him, that he "performed oral sex" on her, that he attempted to have vaginal sex with her, and that he ejaculated onto her face. Based on what the victim told her, Ms. Crues collected swabs from the victim's oral gum line, labia, vagina, face, left eye, and neck. She placed the sealed swabs in a rape kit and sealed the kit.

         Sergeant Michelle Hammond of the MNPD testified that in February 2012, she was a detective in the Sex Crimes Unit. On February 10, she responded to Nashville General Hospital and spoke with the victim. She said that the victim was "visibly shaken" and that the victim's hair, makeup, and clothing were disheveled. The victim also had a crusty substance on her face, and Sergeant Hammond told the victim to keep her hands away from her face in order to preserve the evidence.

         Sergeant Hammond testified that the victim described her attacker as an African-American male, "in his 20s, " having a shaven head, and weighing 180 to 200 pounds. The victim told the officer that the man "immediately grabbed her by the hair and said, 'suck my [d***]' and forced her to perform oral sex on him." The victim said she tried to reason with him. He told her that he was not going to hurt her, but he "forcefully laid her back to where she was in, partially in her chair over the console and then performed oral sex on her." Afterward, he got on top of her and attempted to vaginally penetrate her with his penis. He was unable to do so, so he got off of her and told her to give him oral sex again. He intermittently masturbated and ejaculated partially in her mouth and on her face.

         Sergeant Hammond testified that the victim said the man asked if she had any money. Sergeant Hammond stated, "At that point she took it, you know, fearful for her life she took it out of her wallet and [gave] him $23." He asked if that was all the money she had, and the victim told him yes. The man then walked away.

         On cross-examination, Sergeant Hammond acknowledged that three days later, she showed a six-photograph array to the victim. At that time, Sergeant Hammond knew the Appellant was a suspect. On redirect examination, Sergeant Hammond acknowledged that she did not say anything to the victim to suggest the Appellant was the suspect.

         Heather Baltz testified that she was a detective in the MNPD's Sex Crimes Unit in February 2012 and the lead detective in this case. On February 12, she asked the Appellant if he would provide a DNA sample. He agreed, so Ms. Baltz collected a cheek swab from him. On cross-examination, Ms. Baltz acknowledged that prior to showing the victim the photograph array on February 13, she contacted the victim and advised her that a suspect was in custody.

         Chad Johnson, a special agent forensic scientist with the Tennessee Bureau of Investigation, testified as an expert in DNA analysis that he analyzed evidence collected in this case. A labial swab collected from the victim revealed the presence of Amylase, a chemical found in saliva. However, only the victim's DNA profile was obtained from the sample. An oral gum-line swab collected from the victim was negative for the presence of semen or sperm. Neck and face swabs collected from the victim showed the presence of semen. Agent Johnson separated the semen into two components: A sperm component and a non-sperm component. The sperm DNA matched the Appellant's DNA. The non-sperm component showed that the Appellant was a major contributor to the mixture and that the victim was a minor contributor.

         At the conclusion of Agent Johnson's testimony, the State rested its case and presented the following election of offenses: Count one, rape, for the Appellant's forcing the victim to perform fellatio on him immediately after he was behind her; count two, rape, for the Appellant's performing cunnilingus on the victim; and count three, attempted rape, for the Appellant's attempting to penetrate the victim's vagina with his penis. The jury convicted him of all three offenses and count four, robbery. After a sentencing hearing, the trial court sentenced him to an effective thirty-six years in confinement.

         II. Analysis

         A. Sufficiency of the Evidence

         The Appellant contends that the evidence is insufficient to support his robbery conviction because it fails to show that he took the victim's property by violence or putting her in fear. In support of his argument, he notes that the State did not present any evidence that he was armed with a weapon, that he suggested to the victim that he possessed a weapon, that he threatened to harm her if she did not give him money, or that he forcibly took her purse. He argues that the evidence shows the victim gave him the money in order to stop the sexual assault, not because she was in fear of bodily injury. The State argues that the evidence is sufficient. We agree with the State.

         When an appellant challenges the sufficiency of the convicting evidence, the standard for review by an appellate court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

         A guilty verdict can be based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). "The jury decides the weight to be given to circumstantial evidence, and '[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.'" State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). "The standard of review 'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

         Robbery is defined as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401(a). A theft of property occurs when someone, with the intent to deprive the owner of property, knowingly obtains or exercises control over the property without the owner's effective consent. Tenn. Code Ann. § 39-14-103.

         In support of his argument that the evidence is insufficient, the Appellant relies on State v. Owens, 20 S.W.3d 634, 636 (Tenn. 2000), in which the defendant took an item from a store without paying for it and fled. He ran for five blocks, stopped, and used a box cutter to confront an employee who had chased him. Id. In the case, our supreme court adopted the common law rule of robbery, stating that "the use of violence or fear must precede or be contemporaneous with the taking of property from the person." Id. at 641. The court went on to conclude that the evidence was insufficient to support the defendant's robbery conviction because the evidence did not show that the violence or fear preceded or was contemporaneous with the taking of the property from the store. Id.

         The facts in the instant case are completely distinguishable from the facts in Owens. Taken in the light most favorable to the State, the evidence shows that the Appellant approached the victim as she was getting into her car and forced her into her car. He made her perform oral sex on him, performed oral sex on her, and tried to penetrate her vaginally. He forced her to perform oral sex on him a second time and ejaculated onto her face and neck. At that point, he asked if she had any money, and she gave him the $23 she had in her purse. The victim repeatedly testified that she was terrified and in fear for her life during her ordeal and justifiably so: the Appellant had just raped her at least twice and had tried to rape her a third time. The State asked if the victim was afraid during the attack, and the victim responded, "Yes. I didn't know what he had, if he had like a gun or knife or anything and I didn't want to find out, so I just again did what I needed, what I felt like I needed to do just to survive." For this court to conclude that the victim did not fear the Appellant at the time of the robbery, which occurred immediately after the sexual offenses, because he did not use a weapon, ...

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