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State v. Smith

Court of Criminal Appeals of Tennessee, Jackson

May 11, 2017


          Session January 4, 2017

         Appeal from the Criminal Court for Shelby County No. 11-05223 Glenn Ivy Wright, Judge.

         A jury convicted the Defendant, Travis Smith, of rape of a child, a Class A felony, and he was sentenced to serve twenty-five years in prison. The Defendant appeals, challenging the sufficiency of the evidence, the trial court's decisions regarding the admission of testimony, the sufficiency of the bill of particulars, the timing of the State's election, the jury instructions regarding the election, the introduction into evidence of a videotape of the victim's forensic interview, and the State's alleged failure to turn over exculpatory evidence. The Defendant also asserts he is entitled to relief for cumulative error. Discerning no error, we affirm the Defendant's conviction.

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

          James F. Schaeffer, Jr., and Robin L. Steward, Memphis, Tennessee, for the appellant, Travis Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Katie Ratton and Joshua Corman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.




         The Defendant lived with his cousin, the victim's mother, for a period of months in 2010. During this time, the Defendant twice raped the victim, who was eight or nine years old at the time of the offenses. After an absence of some months, the Defendant again spent the night at the victim's home. The victim revealed the abuse after the victim's mother discovered that the victim and Defendant were both out of bed in the early morning hours.

         The Defendant was indicted for one count of rape of a child occurring between September 30, 2010, and November 1, 2010. On April 4, 2014, the State moved to amend the period of time during which the offense occurred to between May 15, 2010, and October 17, 2010, which was the period of time that the Defendant lived with the victim's family. The motion to amend the indictment was granted. The Defendant objected to the amendment of the indictment and also requested the State to file a written response to the Defendant's request for a bill of particulars. The Defendant argued that the bill of particulars would essentially have to tie the abuse to a particular date in order to allow the defense to prepare for trial.

         The State filed a bill of particulars which detailed the testimony it anticipated the victim would give. The bill of particulars stated that the State could not specify an exact date or time for the offense. The State anticipated that the victim would testify that the Defendant woke her up in her bedroom one night during the time he was living with her family, told her to go to the living room, and kissed her and rubbed her back. The next time the Defendant woke her, he told her to go to the bathroom, undressed her, told her to lie on the floor and hold her legs up, and penetrated her vagina with his penis. The bill of particulars summarized the final incident by stating that the Defendant again woke the victim while she was sleeping in her bedroom, told her to go to the living room, undressed her, told her to lie on the floor and hold up her legs, and again penetrated her vagina with his penis.

         Trial began June 8, 2015, and the Defendant stated that he was renewing his motion for a bill of particulars, arguing that the State had given only "generalities" and that the State should have to specify exactly when the crime occurred. On further discussion, the Defendant stated he was not renewing the motion, but "just basically it would be an election as to what we're proceeding on here when the alleged incident occurred." The trial court ruled that the State's election regarding the factual basis for the conviction could come at the close of the State's proof.

         The victim testified that she was born on August 4, 2001, and that in 2010 she lived in a small house with her family. The permanent residents of the house were her mother and father, who shared a room, her older brother, who had his own room, and herself and her two younger sisters, who shared a room. In 2010, the victim normally slept on the top bunk in the girls' bedroom. At one point in 2010, the Defendant stayed with the family and slept in the living room.

         The victim testified that one night, the Defendant came into her room, tapped her on the back, and called her nickname. The Defendant told her to go into the living room. No one else was awake. The victim testified that the Defendant's actions did not seem normal, but that her mother had taught her to obey adults. The victim sat on a couch and the Defendant started kissing her and rubbing her back. The victim was scared and thought she would get in trouble if anyone found out. The Defendant also told her that he would beat her with a belt if she told anyone, and she believed him. The Defendant told the victim to go back to bed, and she did not reveal what had happened to anyone.

         Shortly after this, the Defendant again woke her the same way and told her to go into the bathroom and lie down on the floor. He entered the bathroom and locked the door. He took off her pants and underwear. The Defendant was wearing boxers but took them off. He told her to lift her legs after he had removed her clothes, then he held up her leg and penetrated her vagina with his penis. No one else in the house was awake. The Defendant told her to get dressed and go back to her room. The victim was not able to get back to sleep.

         The last incident again began with the Defendant waking the victim up by tapping her back in the middle of the night. She almost began to cry when he woke her because she thought that he was "fixing to do it again." The Defendant, who was wearing socks and underwear, told her to go to the living room and take off her clothes. He told her to lie on the couch and got on the couch in front of her and raised her leg. He pulled his underwear down and again penetrated her vagina with his penis.

         The victim testified that the Defendant left town for a while, but she was afraid he would return, and she did not reveal the abuse. By 2011, the victim and all her siblings were sleeping in the victim's brother's room in one bed.

         On April 29, 2011, the victim saw the Defendant at a family party. She went into the house to use the bathroom, and he came into the bathroom with her, shut and locked the door, and started taking pictures of her. The victim asked to spend the night with her aunt because she knew that the Defendant had asked to stay at the victim's house. Accordingly, the victim was not at her home that night. The next day, the family met at another party, and the victim, the Defendant, and the victim's immediate family all went back to the victim's house to spend the night.

         In the middle of the night, the Defendant came in and tapped the victim on the back and called her name. None of the victim's siblings woke up. The Defendant told the victim to go to the living room, and she did. The Defendant walked back and forth in front of the victim's mother's room, "holding the light down" from the telephone that he had used to take her picture, "trying to see was [the victim's mother] up or was she [a]sleep."

         At this point, the victim's mother opened her door and began to call the victim and her sister. The Defendant, who was standing in front of the victim's mother's room, ran into the bathroom, which was located next to that bedroom, and locked the door. The victim walked down the hall to her mother, and the victim's mother asked why she was out of bed. The victim told her mother that she was looking for some water she thought her father had left for her, but her mother responded that "that did not sound right, " and asked, "what are you doing up[?]" The victim went into her mother's room and told her mother that the Defendant had woken her up. The victim's mother asked her if the Defendant had touched her, and the victim told her that he had done so but not on that night. The victim's mother called the Defendant out of the bathroom.

         Because the victim's mother was afraid that her children would be taken from her care due to the lack of utilities, she did not call the police, but instead roused the whole family to drive to the hospital. The Defendant accompanied them. The next day, the victim went to the Child Advocacy Center ("CAC") and had a forensic interview. The interview was played for the jury and was largely consistent with the victim's testimony at trial. She affirmed that she told the truth in the interview and that the recording was a true and accurate depiction of the interview. The victim acknowledged that in the interview, she said the second rape occurred on the floor of the living room rather than on the couch. She stated that she could not remember which it was, but that she had told the truth in the interview and was telling the truth at trial.

         On cross-examination, the victim acknowledged that she had known the Defendant her whole life, that he had babysat her and her siblings, and that he had never beaten her or her siblings with a belt or been violent with them. The victim did not remember what season it was when the Defendant committed the offenses against her, and she did not remember what grade she was in. She did not tell any of her friends, family, or teachers. Her grades did not change due to the assaults. The victim testified on direct examination that she was nine when the Defendant assaulted her, but she testified on cross-examination that she turned nine in August of 2010 and that she could not remember whether the assaults occurred in the spring, summer, or fall of that year, or whether she was still in the third grade or had started the fourth grade.

         Prior to the victim's testimony, a court deputy informed the court that the victim had been waiting outside to testify and that she had told an attorney who was also waiting that a man with dreadlocks and a white t-shirt exposed his genitals to her outside the courtroom. The defense requested to "voir dire" the victim regarding the event, for the purpose of making a record, and sought to have the attorney also testify. The trial court denied the request on the basis of relevance. At the end of the day, however, the trial court permitted the attorneys to summarize the event for the record. Defense counsel stated that the victim told an attorney that a man exposed his penis to her and that the attorney "observed nothing." Defense counsel stated that he wanted "to put her on and just ask her about those things" because it would go to her "credibility." The State responded that the attorney had said that he and the victim were in a "glassed-in" room and that the victim "started saying something to him to try to get his attention and she immediately went and backed up against a wall so that she was out of view." The victim told the attorney that a man was exposing himself to her. The prosecutor stated that the attorney saw an African American man with dreadlocks, that the attorney went to confront the man, and that the man ran away. The man was not apprehended. Defense counsel added that the attorney did not see the man "fiddling with his clothes." The trial court concluded that it would not permit the defense to "cross-examine" the victim about the incident because it was not relevant to trial.

         The victim's mother testified that in 2010, she, her husband, and their four children lived in a house that had three bedrooms and one bathroom. On May 15, 2010, the victim's mother had a party to celebrate her own birthday, and the Defendant had nowhere to go after the party, so she let him stay at her house. The Defendant stayed at the victim's mother's house "off and on" from May 15, 2010 until October 16, 2010, and he slept mainly in the living room and occasionally in the victim's brother's room. At the time the Defendant lived with the family, the victim slept on the top bunk in one of the bedrooms. The Defendant moved out of the home on October 16, 2010, but he returned for Christmas. He left town in early January 2011 to go to California.

         The victim's mother next saw the Defendant at a family gathering on April 29, 2011. The Defendant asked if he could spend the night with her, and after warning him that she had no utilities, she allowed him to come. She could not recall if the victim overheard this conversation, but she testified that the victim then asked if she could spend the night with her aunt. That night, the Defendant and the victim's grandmother stayed in the living room of the home, and the victim stayed with her aunt.

         The next day, the entire family attended a birthday party. The victim's grandmother went to spend the night elsewhere after the party. At around 10:30 or 11:00 p.m., the family, including the victim and Defendant, returned to the house.

         The victim's mother testified that at some point in 2010, the victim and one of her sisters wet the bed. The victim's mother eventually had to dispose of the mattresses on the bunk bed, and the children all began sleeping in one room. By the time the Defendant stayed with the family in 2011, all four children slept in one bed in the victim's brother's room. The victim's mother would wake up the victim and her sister every night to ask them to use the bathroom in order to prevent bedwetting.

         The victim's mother testified that her utilities were cut off sometime in September or October 2010. She had a generator that functioned from the end of 2010 to the beginning of 2011. The victim's mother habitually slept with the television on and the volume up when she had electricity, but by April, there was no power in the house. The victim's mother used two kerosene lanterns for light, one placed in the bathroom and one in her bedroom. After the utilities were cut off, the family began to keep a large plastic tub of water in the bathroom and used buckets of water from the tub to flush the toilet.

         The victim's mother testified that the victim and her siblings were asleep together that night. The Defendant came to her door and asked her for a cigarette, and she gave him one. He came again an hour later to ask for another cigarette. The victim's mother did not have any to spare, so he asked her for cigarette butts and she gave them to him. The victim's mother was on the telephone with her friend, but she "kept hearing noises" in the house. Around 1:00 or 2:00 a.m., she decided to wake the children to ask them to use the bathroom. The victim's mother opened the door to go into the hallway, and as she did, she saw "a flash run by." It looked to her as though someone had run out of her son's room, which was directly across the hall, and into the bathroom, and she heard the bathroom door shut and lock. She called her two older daughters' names, and Defendant asked her if she wanted him to get the children up and let them use the bathroom. She told him that she would get them up. She called their names again, and her younger daughter answered from the bedroom, but the victim did not respond. She then saw the victim walking up the hallway. She asked the victim why she was up, and the victim responded that she thought her father had left some water out for her. The victim's mother found this suspicious because her children did not "get[] up in the middle of the night without someone waking them up."

         The victim pulled her mother into the victim's mother's bedroom and told her that the Defendant had woken her up. After speaking to the victim, the victim's mother called the Defendant out of the bathroom and woke her husband. The Defendant denied any wrongdoing. He told her that he had woken up her son to ask him for a blanket. The victim's mother then woke her son, who said that the Defendant never asked him for a blanket. She also testified that the Defendant did not ask her for a blanket either time he knocked on her door and that the Defendant knew where she kept the linens because he had stayed with her for an extended period of time. The ...

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