Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
from the Circuit Court for Perry County No. 2015-CR-3 Deanna
B. Johnson, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.,
TIMOTHY L. EASTER, JUDGE
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.
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.,  the victim, who was fourteen years of age
at the time. He was accompanied by a DCS case manager.
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."
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.
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."
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