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State v. Bolden

Court of Criminal Appeals of Tennessee, Knoxville

May 23, 2017


          Session February 22, 2017

         Appeal from the Criminal Court for Morgan County No. 2013-CR-13 E. Eugene Eblen, Judge

         The defendant, Michael C. Bolden, appeals his Morgan County Criminal Court jury conviction of aggravated rape of a child, claiming that the evidence was insufficient to support his conviction and that the trial court erred by failing to instruct the jury on rape of a child as a lesser included offense. We affirm the conviction and sentence but remand for correction of a clerical error in the judgment.

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

          C. Brad Neff, Jamestown, Tennessee, for the appellant, Michael C. Bolden.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Russell Johnson, District Attorney General; and Alyson Kennedy and Robert Edwards, Assistant District Attorneys General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.



         In January 2013, the Morgan County Grand Jury charged the defendant with one count of aggravated rape of a child. The trial court conducted a jury trial in June 2015.

         The State's proof at trial showed that the victim, C.H., [1] resided in Morgan County with his mother, A.H., [2] in September 2012. A.H. testified that the victim was born on December 17, 2009, and that he was three months shy of his third birthday on September 10, 2012.

         A few days prior to September 10, the victim was accidentally run over by a vehicle in a library parking lot but fortunately sustained only minor injuries. On September 10, the defendant paid a visit to A.H.'s residence to "check on" the victim's well-being. The defendant sat on the floor of the living room and helped the victim play with some toy trucks. After a few minutes, the victim decided to play in his bedroom, and the defendant asked A.H. if he could assist the victim in carrying the toys to the victim's bedroom; A.H. acquiesced and followed them. While A.H. was standing outside of the victim's bedroom, her husband requested her assistance in locating an item, and A.H. walked away "for maybe a minute, minute and a half." When she returned to the victim's bedroom, she saw the defendant "sticking his [penis] in my kid[']s mouth." A.H. stated that the defendant had one of his hands on the victim's head and that he was using his other hand to hold his penis.

         A.H. testified that she immediately "started screaming, " and the defendant replied that he "wasn't doing nothing, " although A.H. could "clearly see his pants were unbuttoned." A.H.'s husband "had to force [the defendant] out of the whole house, " and the defendant was "screaming I'm sorry, I'm sorry, I didn't mean to." When police officers arrived at the house, the defendant continued "screaming I'm not right in the head, I didn't mean to, I wasn't right, I didn't mean to do it."

         A.H. admitted that she had been previously convicted of attempted forgery, misdemeanor theft, misdemeanor criminal impersonation, and possession of less than half a gram of methamphetamine and that she was currently serving a jail sentence in Cumberland County. A.H. clarified that all of her criminal convictions had occurred after the rape of the victim.

         On cross-examination, A.H. stated that, when she reentered the victim's bedroom, the defendant was on his knees, and A.H. was adamant that she saw the defendant's penis inside the victim's mouth. A.H. denied using any drugs on September 10, 2012, and testified that she did not begin using methamphetamine until after the victim's rape. A.H. denied that the victim had a history of grabbing men in the crotch. A.H. confirmed that she had contacted Mark and Linda Peterson shortly after the rape occurred, explaining that she had met the defendant through the Petersons and that she wanted to inform them of what had transpired because the defendant "would slip off into the bedroom" with the Petersons' children on prior occasions.

         Morgan County Sheriff's Department ("MCSD") Chief Deputy Steve Cochran testified that he interviewed the defendant on September 12, 2012. Chief Cochran provided the defendant with his Miranda warnings, and the defendant signed a waiver of his rights and agreed to speak with Chief Cochran. At that time, the defendant admitted that he had placed his penis in the victim's mouth. Chief Cochran asked the defendant "what made [him] excited . . . about the child, " and the defendant replied that "he was excited and turned on by" seeing the victim "in his diaper." The defendant denied that he had committed any other sexual assaults or that "little boys turned him on" prior to his assault of the victim. Following the interview, Chief Cochran asked the defendant to give a handwritten statement, and the defendant complied, writing that he "went to his bedroom to play with him then after [I] played with him [I] stuck my penis in his mouth."

         On cross-examination, Chief Cochran admitted that no video or audio recording of his interview with the defendant existed. Chief Cochran acknowledged that he did not inquire about the defendant's educational background but stated that he had read the Miranda warnings aloud to the defendant "just in case" the defendant was unable to read. Chief Cochran conceded that the defendant had not signed his handwritten statement, which was on the back side of the rights waiver form which he had signed.

         On redirect examination, Chief Cochran stated that he had given "hundreds" of interviews and Miranda warnings throughout his career in law enforcement and that he was able to discern when an interviewee understands the questions being asked of him. Chief Cochran had "no question" about the defendant's ability to understand his rights.

         Kingston Police Department Officer Brian Luttrell testified that in September 2012 he was employed as an MCSD corrections officer. Officer Luttrell was present during Chief Cochran's interview of the ...

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