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State v. Cruz

Court of Criminal Appeals of Tennessee, Nashville

April 17, 2017

STATE OF TENNESSEE
v.
YELSIN A. CRUZ

          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Circuit Court for Maury County No. 22553 Robert L. Jones, Judge

         The defendant, Yelsin A. Cruz, appeals his Maury County Circuit Court jury conviction of rape of a child, claiming that the trial court erred by denying his motion to suppress his pretrial statement to the police, that the evidence was insufficient to support his conviction, and that the 27-year sentence is excessive. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

          Jacob J. Hubbell, Columbia, Tennessee, for the appellant, Yelsin A. Cruz.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Mike Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Maury County Grand Jury charged the defendant with one count of rape of eight-year-old P.M.P.[1]

         At the November 2015 trial, Maury County Sheriff's Department Detective Johnny Luttrell testified that on April 24, 2013, he responded to the Emergency Department at Maury County Regional Hospital, where he spoke with the victim. As a result of that conversation, Detective Luttrell asked another officer to bring the defendant to the sheriff's department for questioning. Detective Luttrell provided the defendant with Miranda warnings, and the defendant executed a written waiver of his constitutional rights. Upon questioning by Detective Luttrell, the defendant provided an oral statement. Because the defendant could not write very well in English, Detective Luttrell wrote the statement and then read it back to the defendant, who then signed it. Detective Luttrell read the statement to the jury:

"I was laying in the be[]d watching TV, and [the victim] came in the bedroom. She had no clothes on. She had a towel on, but was open. [The victim] got into the bed with me. She pulled my pants down. She started touching me and hugging me and my d*** went up. She got on top of me and jumped down on me. My d*** went up in her and I let her do that. This was written for me by Detective Luttrell."

         In addition to recording the statement in writing, Detective Luttrell audio recorded his interview with the defendant. That recording was exhibited to the trial and played for the jury. During the interview, the defendant said that he told the victim, "No, " but she continued to jump on him. He said that "[s]he wanted it." At some point, the defendant said that the victim "told him to come back that she was bleeding." The defendant told the detective that the victim had moved her towel as though "[s]he was trying to show off her body to him." After the defendant provided his statement, Detective Luttrell had another officer transport the defendant to the jail while he obtained a warrant for the defendant's arrest.

         Detective Luttrell took photographs and retrieved evidence from the residence where the offense occurred. In particular, he photographed a white shirt and a towel that lay on the defendant's bed, both of which had "brownish red" stains. He collected both the towel and the shirt from the residence. He collected the victim's underwear and shirt from her mother at the hospital. He recalled that the bedding was wet underneath the towel but said that he did not collect the bedding. Detective Luttrell obtained DNA samples from both the defendant and the victim and took them, along with the victim's clothing and the shirt and towel collected from the residence, to the Tennessee Bureau of Investigation ("TBI") for forensic testing.

         During cross-examination, Detective Luttrell acknowledged that he did not obtain the services of an interpreter or other person who spoke Spanish to assist him in interviewing the defendant. He recalled that an employee of the sheriff's department was fluent in Spanish, but he did not contact that person to help him communicate with the defendant. He said that there were occasions during the interview when the defendant indicated that he did not understand certain of the detective's questions. Detective Luttrell agreed that before he suggested to the defendant that the victim "wanted it, " the defendant had denied having any physical contact with the victim. Detective Luttrell said that he interviewed the victim, the victim's mother, and the defendant and that he did not interview any other person.

         During redirect examination, Detective Luttrell insisted that he and the defendant were "able to communicate" despite the language difference.

         TBI Agent and Forensic Scientist Greg Fort testified that he performed forensic testing of the victim's underwear, her yellow shirt, a towel, and a white polo shirt. Testing did not indicate the presence of semen on the white shirt. Semen was present on the towel, and DNA testing established that it came from the defendant. Agent Fort did not find semen on the victim's panties or shirt. He did not perform any tests to determine whether there was blood on any of the items. He did not receive a "sexual assault kit" for testing.

         Leigh Anne Pickup, a physician's assistant at Maury County Regional Hospital, testified that she treated the victim when the victim was brought in to the emergency department. She recalled that the victim's primary complaint was vaginal bleeding and that the victim claimed that "she sat on a plant at school." The victim told Ms. Pickup that she had bathed after school and then gone to her grandparents' house. Ms. Pickup recalled that the victim "was obviously complaining of some pain and was concerned about this bleeding, but remained active and did smile during her exam." Upon examining the victim, Ms. Pickup found that the victim "had a tear at the posterior vaginal introitus, meaning, . . . the lowest part of the vagina closest to the anus." The victim also had "bruising around the introitus."

         Because of the extent of the victim's injuries, Ms. Pickup asked for assistance from her attending physician, Doctor Omar Hamada. Doctor Hamada ordered testing and then repaired the laceration to the victim's vagina "under conscious sedation." Ms. Pickup said that the victim's injury was "not consistent with . . . falling on a plant" or a stick. She said that the injury required "penetration into the vagina." As he repaired the victim's injury, Doctor Hamada examined the victim's hymen and discovered that "[t]he hymen was torn at the 6:00 position two to three centimeters, a second-degree perineal laceration in midline through vaginal introitus." Based upon these findings, Ms. Pickup surmised that the victim's injuries were the result of a sexual assault. Ms. Pickup then telephoned the police and "Our Kids, which is an intermediary organization that helps facilitate care of children that are" in danger.

         During cross-examination, Ms. Pickup testified that the victim did not indicate to her that the defendant had caused the injuries. Ms. Pickup said that any object penetrating the victim's vagina "could have caused the laceration, but there had to be significant impact to cause the bruising surrounding the vagina."

         Doctor Omar Hamada testified that he examined the victim on April 24, 2013. He recalled that the victim was initially "very reluctant to be examined" and that "her story seemed to change a little bit depending on who questioned her." At that point, Doctor Hamada decided to sedate the victim to perform a more thorough examination. During that examination, he observed "a traumatic laceration" to the victim's "posterior vaginal fourchette, " explaining that "the laceration was from inside the vagina down around the outside opening into the perineal area." He said that the victim was "bleeding profusely" from her vagina. Doctor Hamada also observed that the victim's "[h]ymen was torn traumatically, " and he agreed that penetration by an adult penis could have caused the victim's injuries. Doctor Hamada noted bruising around the victim's vagina "'on either side of'" the laceration.

         Doctor Hamada testified that he did not order collection of a rape kit because he did not observe any pubic hair or seminal fluids during his examination of the victim's vagina. He opined that the victim's injury was caused by "a direct hard force, " explaining, "It wouldn't be something that just accidentally happened or something that was gentle. . . . [I]t would require a pretty traumatic event." He said that the victim's injuries were "[n]ot at all" consistent with the ...


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