Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 18, 2017 at Knoxville
from the Circuit Court for Maury County No. 22553 Robert L.
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.
R. App. P. 3; Judgment of the Circuit Court Affirmed
J. Hubbell, Columbia, Tennessee, for the appellant, Yelsin A.
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.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE
Maury County Grand Jury charged the defendant with one count
of rape of eight-year-old P.M.P.
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 bed 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."
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
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.
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.
redirect examination, Detective Luttrell insisted that he and
the defendant were "able to communicate" despite
the language difference.
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.
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."
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.
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."
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.
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 ...