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Song v. State

Court of Criminal Appeals of Tennessee, Nashville

May 17, 2017

YOUNG BOK SONG, AKA MIKE
v.
STATE OF TENNESSEE

          Assigned on Briefs August 9, 2016

         Appeal from the Criminal Court for Davidson County No. 2003-C-1792 Steve R. Dozier, Judge

         Petitioner, Young Bok Song, filed a petition for writ of error coram nobis concerning his multiple convictions for rape of a child and aggravated sexual battery and his sixty-five-year sentence. The petition was dismissed without an evidentiary hearing, and Petitioner appeals. We affirm the judgment of the coram nobis court.

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

          David M. Hopkins, Murfreesboro, Tennessee, for the appellant, Young Bok Song.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         I. Background

         The factual basis for Petitioner's convictions was summarized by this court, as follows:

The victim, S.L., born on September 8, 1989, and fourteen years old at the time of the trial, testified that she lived with her mother, Chong Suk Pak, and her younger sister, victim J.L., in a two-bedroom apartment in Nashville during the times the defendant had sexual contact with her. She testified that she did not know or have any memories of her biological father. S.L. said she met the defendant when she was very young and remembered him living with her family "for a little bit." After the defendant moved out to live with his ex-wife and children, S.L. visited him at his house a "couple of times a week, " but also continued to see the defendant at her apartment because he often babysat S.L and J.L. while their mother was at work.
S.L. testified to a number of different sexual encounters with the defendant. S.L. said the first time she remembered the defendant having sexual contact with her was when she was about eight years old and her mother was at work. She said she was in her bedroom practicing her flute and her sister was in the living room when the defendant came into the room and "told [her] to take off [her] clothes." After taking off all her clothes, S.L. closed her eyes at the direction of the defendant and laid down on her back on the bed while his "penis went inside [her] vagina." S.L. said this hurt and she began to cry, but the defendant "told [her] to be quiet." S.L. said that "[a]fter [the defendant] finished, [he] told [her] to go wash [herself], " which she did. She said she did not yell for her sister because she was afraid of the defendant. S.L. could not remember how many times the defendant had raped her in her bedroom but said it happened more than twice.
The second incident occurred when S.L. was again in her bedroom practicing her flute and the defendant told her sister and his own daughter, Mindy, to go outside and play. S.L. did not remember how old she was at the time of this encounter. She said the defendant came into her room and told her to take off her clothes and then "put his penis into [her] vagina" while she was lying on her bed. She did not recall how long this episode lasted, nor did she remember if the defendant said anything.
The third sexual encounter occurred in her living room while S.L.'s mother was at work and her sister was asleep in the bedroom. She said the defendant told her to take off her clothes, and he then "[p]ut his penis inside [her] vagina" while she laid on the floor on her back. Asked if she ever said anything to the defendant when he told her to remove her clothes, S.L. said she "sometimes . . . said that [she] didn't want to do it, " but he "still did it." S.L. said she felt pain during the rape and cried, but the defendant told her to be quiet. Asked how she knew her mother was at work, S.L. said that the defendant called her mother "before . . . to make sure that she was still there." S.L. said she had her eyes closed the entire time and did not know if the defendant had ...

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