Session January 4, 2017
from the Criminal Court for Shelby County No. 11-05223 Glenn
Ivy Wright, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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.
Everett Williams, J., delivered the opinion of the court, in
which Alan E. Glenn and Camille R. McMullen, JJ., joined.
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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
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.
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.
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.
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.
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."
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 ...