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State v. Moreno

Court of Criminal Appeals of Tennessee, Nashville

May 30, 2017


          Assigned on Briefs March 14, 2017

         Appeal from the Circuit Court for Perry County No. 2015-CR-3 Deanna B. Johnson, Judge

         Defendant, Rafael Moreno, Jr., pled guilty to one count of aggravated statutory rape. After a sentencing hearing, the trial court sentenced him to a three-year sentence of incarceration as a Range I, standard offender. Defendant appeals the trial court's denial of judicial diversion and/or an alternative sentence. Because the trial court did not abuse its discretion, we affirm the judgment of the trial court.

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

          Vanessa Bryan, District Public Defender, and Jakob L. Schwendimann, Assistant Public Defender, for the appellant, Rafael Moreno, Jr..

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Kim Helper, District Attorney General; and Jennifer Mason, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.



         Defendant was indicted by the Perry County Grand Jury in February of 2015 for aggravated statutory rape. He pled guilty to the offense with the trial court to determine the length and manner of service of the sentence at a hearing.

         Investigator Kurt Mercer of the Perry County Sheriffs Department testified at the sentencing hearing that he became involved in an investigation of Defendant after a referral from the Department of Children's Services ("DCS") in September of 2014. Investigator Mercer travelled to the home of C.F., [1] the victim, who was fourteen years of age at the time. He was accompanied by a DCS case manager.

         The victim reported to Investigator Mercer that Defendant, who was twenty-seven years of age at the time, lived with her family. The victim told Investigator Mercer that Defendant would come into her bedroom to watch movies and play games. The victim also reported Defendant "touching, feeling, him doing things in the room with her and sometimes with her other sisters present."

         After this visit, Investigator Mercer interviewed Defendant at the residence. Defendant described his relationship with the victim as close friends and then "basically admitted to all of [the victim's] allegations." Investigator Mercer described Defendant as "very honest and forthcoming." In fact, Defendant admitted that he had intercourse with the victim on at least two occasions and masturbated in front of her on at least one occasion. Investigator Mercer explained that Defendant "believed that [he and the victim] were in a relationship that was more than friends." Defendant admitted to the investigator that the relationship was "wrong." Investigator Mercer got the feeling Defendant thought he was in a consensual relationship with the victim. The victim eventually admitted that she had intercourse with Defendant and indicated that it was consensual.

         The victim's father testified that he knew Defendant for approximately ten years because Defendant attended school with his oldest stepson. Defendant's mother passed away in an apartment fire two to three weeks before high school graduation, and Defendant did not have anywhere to live. At the time, the victim's father had three stepchildren and two natural children living at the home he shared with his wife, the victim's stepmother. The victim's father trusted Defendant and considered him a part of the family. After living with the family for one and a half to two years, Defendant moved to Indiana. Defendant stayed in Indiana for a while but eventually called to tell the victim's father "he had gotten in a little trouble and he wasn't doing as good up there [as he thought he should be]." The victim's father offered for Defendant to come back and live with them again. This time, Defendant stayed for nearly a year before the family moved into a new home. Defendant moved with them into the new home and shared a room with one of the victim's brothers. Defendant had a full-time job and was consistent with "[h]elping paying on all [the] bills."

         The victim's father once saw Defendant sitting at the foot of his oldest daughter's bed. He did not have any concerns about Defendant at that time and treated Defendant like a member of the family. The victim's father came home one day to see Investigator Mercer's car parked in the driveway. Once the victim's father learned about the allegations, Defendant was no longer welcome in the home. The victim's father described the victim as "very ...

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