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State v. Thornton

Court of Criminal Appeals of Tennessee, Nashville

June 22, 2017

STATE OF TENNESSEE
v.
ROBERT G. THORNTON, JR.

          Assigned on Briefs August 9, 2016

         Appeal from the Circuit Court for Hickman County No. 145023CR James G. Martin, III, Judge

         Following a jury trial in Hickman County Circuit Court, Defendant, Robert G. Thornton, Jr., was convicted of two counts of rape. The trial court merged the convictions and sentenced Defendant to twelve years in the Department of Correction to be served at 100%. On appeal, Defendant argues: (1) that the trial court improperly refused to strike a juror for cause; (2) that the trial court erred by denying his motion for a mistrial; (3) that the evidence was not sufficient to support his rape convictions; and (4) that his sentence is excessive. After a thorough review of the record, we affirm the judgments of the trial court.

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

          Richard Boehms, Hohenwald, Tennessee, for the appellant, Robert G. Thornton, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Kim R. Helper, District Attorney General; and Kate Yeager Delk, Assistant 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

         Background

         State's Proof

         Tina Thigpen is the Principal at the Hickman County Middle School. During the 2012-2013 school year she was employed as a guidance counselor at the school. On May 2, 2013, Ms. Thigpen was requested to speak with the victim after there had been a fight during recess that day. The victim did not participate in the fight although he was the "subject" of the fight. Ms. Thigpen called the victim into her office, and they had a conversation. The victim was concerned that he had an STD, which raised many "red flags" with Ms. Thigpen. She continued speaking with the victim and suggested that he be tested. The victim became "visibly shaken, scared, upset, " and he began crying. Ms. Thigpen testified that she felt the need to notify the school principal, the victim's mother, and law enforcement. The victim's mother and law enforcement later arrived at the school.

         The victim's mother testified that she has three sons. At the time of the offenses, the victim was fourteen years old and in the eighth grade. The victim's mother testified that he liked sports and music, and she described him as a quiet child who was "sweet and kind."

         On May 2, 2013, the victim's mother received a call from Ms. Thigpen at the Hickman County Middle School. The victim's mother then left work and drove to the school. She walked into the room where the victim was sitting, and she immediately noticed that he was very upset. She knew that there was "something drastically wrong with him."

         The victim's mother noted that the victim spent nearly every weekend with his father, from whom the victim's mother had been divorced since 2000. She had noticed changes in the victim in the weeks leading up to May 2, 2013. The victim's mother described him as "more distan[t] than ever, " and he spent a lot of time in bed. She also testified that the victim constantly wore a hoodie, and he was "very sick all of the time."

         The victim testified that he met Defendant during the victim's eighth grade year at school. He said that he went to Defendant's house with a friend, J.D., for a birthday party. The victim testified that there was alcohol at the party, and everyone was drinking except for Defendant. The victim said that he drank "two shots." He and J.D. then spent the night at Defendant's house. After that, the victim testified that he and J.D. visited Defendant's house every other week for a "month or a month and a half." The victim testified that Defendant had a television but he did not have cable. Defendant also usually had alcohol for them to drink. The victim testified that he and J.D. usually talked and hung out together while at Defendant's house. He said that Defendant also had a roommate but the victim only saw him one time. The victim also saw other people at Defendant's house who were older than the victim. He said that there were no rules at Defendant's house. The victim testified that the main reason he went to Defendant's house was to "hang out" with J.D. He said that Defendant was always there and sitting "in front of his couch or on the chair."

         The victim described his relationship with Defendant as someone he could talk to and "open up to for problems." The victim testified that J.D. and Defendant were at Defendant's house the last time that the victim was there. He said that he and J.D. were "messing around being stupid, " and Defendant had rum and Mountain Dew at the house. Defendant mixed the two ingredients together and gave it to the victim. The victim thought that J.D. also had a drink. The victim testified that he drank two cups of the mixture and began to feel lightheaded and off balance. He said, "Like whenever I was turning or tried to move my eyes everything felt like it was going like in slow motion and moving all together I guess." The victim testified that he had never drank that much or felt that way before.

         The victim testified that Defendant showed the victim and J.D. some pornography that was playing on the television, and the victim and J.D. then went to the back room of the house and talked. The victim described the room as the closest one to the living room. He said that Defendant walked into the room while the victim and J.D. were on the bed talking. The victim testified that Defendant asked him if he wanted to "try anal or anything with a guy, " and the victim told him, "I didn't want to." The victim said that the next thing he remembered was being facedown and feeling a sharp pain inside his "butt." He could not turn around to see what was inside of him but he felt a "ripping" sensation. The victim testified that he felt J.D.'s hand on his back, and J.D. told Defendant to stop because he was hurting the victim. The victim said that he could not tell Defendant to stop because he was in too much pain. He testified that the pain stopped after a while, and he "just kind of laid there, " and J.D. hugged him. The victim testified that J.D. was in the room the entire time that Defendant was raping him. He said that Defendant did not say anything and left the room after the rape. The victim went to sleep, and Defendant was gone when he woke up at approximately 7:30 to 8:00 a.m. the next morning. The victim left Defendant's house and walked to his girlfriend's house. The victim did not tell anyone what happened because he was scared and wanted to forget about it.

         The victim admitted that he spoke with a detective a few weeks before he told Ms. Thigpen what happened. He did not tell the detective about the rape because he did not want to talk about it, and he wanted to "leave it alone and forget about it." The victim said that he finally told Ms. Thigpen what happened because he trusted her, and Defendant was in jail and "already caught." The victim testified that it was difficult to tell his mother what happened, and he did not want anyone to "feel bad" for him.

         On cross-examination, the victim testified that Defendant never personally invited the victim to his house, and he did not pressure the victim to drink alcohol or watch pornography on television. The victim admitted that he asked for alcohol the last time that he was at Defendant's house. He recalled talking to a woman a few weeks after he disclosed the rape. The victim told the woman that he went to Defendant's house three times, and Defendant was at the house one of those times. He did not feel comfortable telling the woman the whole truth and everything that went on. He said that he was afraid to tell her how many times he went to Defendant's house and what he was doing there.

         The victim testified that he was wearing tight stretchy pants at the time of the rape. He described them as "like the ones you probably get from like Hot Topic or kind of store like that." He also usually wore "band shirts." The victim did not recall how his pants were removed, and he said that Defendant pushed him from the shoulder, and he was face down on the bed. He did not know how long the rape lasted, and he could not do anything to stop it. The victim testified: "I was like I blacked out once my face hit the bed. I couldn't - - I wasn't - - I was kind of shocked at the moment. I didn't know what was going on and I felt a sharp pain." The victim said that he could not "really move, " and it "hurt real bad." He felt as though he "couldn't do anything about it." The victim testified that he felt a hand on his back, and he knew that it was J.D.'s hand "because it felt gentle [.]" He heard J.D. yelling "stop you're hurting him." The victim again testified that J.D. hugged him, and the victim went to sleep. He did not recall telling the woman during the interview that he went into the living room after the rape and slept on the couch with J.D. The victim also did not recall telling the woman during the interview that Defendant used baby oil from the nightstand and that the rape lasted approximately fifteen to thirty minutes.

         The victim did not recall every time that he went to Defendant's house but he said that Defendant was there. However, Defendant would sometimes leave after the victim got there. He did not recall telling Officer Mobley that he had been to Defendant's house four times, that Defendant was not there the first two times, and that Defendant was only there for fifteen minutes the third time the victim was there. The victim testified that he spent the night at Defendant's house two times. On redirect examination, the victim testified that he never returned to Defendant's house after the rape. He estimated that he had been to Defendant's house four or five times.

         M.C was seventeen at the time of the trial, and he attended Hickman County High School with the victim, and he knew J.D. He said that the victim was younger than he was. M.C. testified that during the spring of 2013 he and the victim would occasionally hang out after school and go to Defendant's house or go skating. M.C. noted that he was still struggling with the passing of his mother at the time. He said that his friend, D.W, was Defendant's son. M.C testified that he and D.W. were in band together. M.C. said that he went to Defendant's house sometimes with D.W. M.C. testified that he and Defendant were "pretty good friends, " and they had conversations about M.C.'s life. M.C. told Defendant about his relationships and girlfriends.

         M.C. testified that he was at Defendant's house once or twice when the victim was there. Defendant was also there when the victim was there. M.C. testified that Defendant had alcohol at the residence most of the time when they were there. M.C. testified that they all would "pitch in money and [Defendant] would go to Dickson and buy some." He said that Defendant would either purchase Jagermeister or Vodka. M.C. recalled a point when the victim stopped coming to Defendant's house. Defendant would ask M.C. if he knew when the victim was coming over again. M.C. testified that Defendant would also say, "I want to go over like the other night again, and then he would be kind of hinting that it - - it be [sic] kind of like nudging at me. . ." M.C. said that he and Defendant had been talking about relationships when Defendant asked about the victim. M.C. testified that he spent the night at Defendant's house most of the time. On cross-examination, M.C. testified that Defendant never forced him to drink alcohol.

         J.D. testified that he currently lives in Hendersonville, Tennessee with his mother and is enrolled in an online school. He previously lived with his father in Hampshire, Tennessee, located "technically" in Maury County but he had attended Hickman County Middle School. He was friends with D.W. who introduced him to Defendant. J.D. testified that D.W. referred to Defendant as his "uncle." They stopped by Defendant's house one night on Halloween and stayed approximately fifteen to thirty minutes. After that, J.D. testified that he visited Defendant's house "maybe every other weekend." J.D. said that M.C. and the victim would come over to Defendant's house. J.D. had known the victim since they were both in seventh grade. J.D. thought that the victim went to Defendant's house with J.D. two or three times. He said: "Sometimes we would just sit there and listen to music. Sometimes there would be drinking involved, but I would just mainly be hanging out with my friend, you know, we would just do typical stuff, talk so --[.]" J.D. testified that Defendant sometimes had Vodka at the house, and one time there was rum or Jagermeister.

         J.D. testified that he spent the night at Defendant's house [m]ost of the times that [he] went over there." The victim was not with him every time that he stayed at Defendant's house. J.D. testified that his memory of the night of the offense was a "little fuzzy." However, he distinctly remembered the victim "on the bed and I remember [the victim] was in pain and I was telling [Defendant] to stop." He also told Defendant that he was hurting the victim. J.D. specifically testified that Defendant was penetrating the victim's anus with Defendant's penis. J.D. testified that he could tell from the victim's facial expression that he was in pain. He did not recall if the victim said anything. J.D. testified that he was on the bed next to the victim when the rape occurred. He did not recall how the victim's pants were removed, and he said that Defendant was wearing pants but that they were unzipped and pulled slightly down. J.D. testified that the rape lasted approximately fifteen minutes, and he "felt powerless." He thought that he hugged the victim after the rape, and they both went to sleep.

         J.D. testified that he could not remember everything that happened because "[w]e were inebriated." J.D. thought that he had been drinking Vodka and that he had more to drink than the victim. He believed that the victim went to Defendant's house with him one time after the rape occurred.

         On cross-examination, J.D. testified that Defendant never forced him to drink alcohol. He said that Defendant was at the house every time that J.D. was there with the victim. J.D. did not believe that anyone other than he and the victim was at Defendant's house on the night of the rape. J.D. testified that he and the victim were lying on the bed with their head on the head board and their feet vertically on the bed. He said that they were not lying on the edge of the bed. J.D. thought that he and the victim had been in the bedroom talking for approximately thirty to forty-five minutes when Defendant walked into the room. J.D. testified that he did not call anyone to help stop the rape because he was afraid. The first time that he told anyone what happened was when his principal asked him about it.

         Sergeant Levy Mobley of the Hickman County Sheriff's Office testified that he was working as a detective for the sheriff's office in the spring of 2013. He received information during that time that teenage boys were "hanging out" at Defendant's residence.

         Sergeant Mobley interviewed the victim on April 19, 2013, at the victim's home. The victim's mother was present, and Detective Mobley asked the victim about what went on at Defendant's house. Detective Mobley testified that the victim was "reserved, " and he would not give Detective Mobley much information. The victim admitted to being at Defendant's house and that he and other friends drank alcohol and watched pornographic movies while there. He told Detective Mobley that he had been to Defendant's house three to four times. According to Detective Mobley's notes, the victim said that Defendant was not at the house the first two times that the victim was there. The victim also said that Defendant was there for approximately fifteen minutes the third time, and Defendant was there the fourth time for the entire time the victim was at the house. The victim did not tell Detective Mobley anything about what happened to him personally at Defendant's house. Detective Mobley did not press the victim on the issue because it made Detective Mobley "a little bit uncomfortable." When asked why it made him uncomfortable, Detective Mobley testified: "Well, because he's a child and because of the allegations that I was aware of that been [sic] going on over there, I was a little uncomfortable with it."

         Detective Mobley also talked with Defendant about what may or may not have been going on at his house. He testified:

[Defendant] advised me that the boys, you know, they would come over sometimes. He - - he had a son named [D.W.] that I guess they were supposedly friends and that's - - that was the connection, but anyway they - - he had - - he let boys come over and they stay around his house.

         Defendant told Detective Mobley that he would allow the boys to drink "Fanta" and watch movies. Defendant also told him that he would talk to the boys about their problems at school and "stuff like that." Detective Mobley testified that Defendant denied allowing the boys to watch pornography, and he said that they only watched cartoons. Defendant told Detective Mobley that he kept alcohol in the refrigerator but that he never provided any to the boys.

         On May 2, 2013, Detective Mobley was called to the Hickman County Middle School by the Principal. He spoke with J.D. and the victim, who was visibly upset and crying. Detective Mobley asked the victim specific and detailed questions, and their conversation lasted fifteen to twenty minutes. He said that the victim's demeanor was different than their first conversation on April 19, 2013. He also noted that victims of "sexual crimes don't always admit to it at first." Detective Mobley then referred the victim to the Child Advocacy Center to be interviewed. Detective Mobley also interviewed M.C. and D.W. Detective Mobley testified that the victim told him at the school that he had been to Defendant's house more than twice. He admitted that there were some small inconsistencies between what the victim told him on April 19, 2013, and what the victim told him on May 2, 2013, about how many times he was at Defendant's house. When asked if the inconsistencies concerned him, Detective Mobley testified:

Well, I mean it didn't really concern me because like I said before, it didn't surprise me on the first interview the fact that he didn't reveal anything, didn't - - because I'm sure he was ashamed and probably was a little embarrassed and didn't want to - - you know, I kind of took him by surprise because they had no idea why I was there . . .

         Charlsi Legendre was working at the David House Child Advocacy Center in May 2013 as a forensic interviewer, and she interviewed the victim. The interview was video and audio recorded. Ms. Legendre testified that the victim was "very closed" and "very guarded." She also noted that he was not comfortable. Ms. Legendre testified that she gave a copy of the recorded interview to Detective Mobley. On cross-examination, Ms. Legendre testified that the victim was not emotional during the interview. She said that there were "some differences in some things" which she said was "typical of teenaged boys." The victim told her that he had been to Defendant's house three times. Ms. Legendre testified that the victim originally said that Defendant was at the house when he was there on one occasion, "but then he followed it up with a detail of two separate incidents."

         On cross-examination, Ms. Legendre testified that according to her report, the victim said that J.D. was in the room during the rape, and J.D. had been back to Defendant's residence. The victim said that he thought the rape lasted between fifteen and thirty minutes. The victim also said that he fell asleep on the couch with M.C. after the rape was over. On redirect examination, Ms. Legendre testified that the victim's story never differed with respect to him being raped once while J.D. was in the room. She said that there were no inconsistencies in the victim's story other than the number of times Defendant was at the residence when the victim was there and whether M.C. was present at the time of the rape. Ms. Legendre also noted that "as the interview progressed [the victim] kind of clarified himself."

         Defendant's Proof

         Defendant testified that in March and April of 2013, he was living on Highway 48 North. He was disabled and not working at the time due to severe liver disease. Defendant said that he was also enrolled in the University of Phoenix.

         Defendant testified that he did not rape the victim or touch him "sexually in any way." He said that there was alcohol at his house because of his roommate but Defendant denied giving it to any children. Defendant testified that he occasionally drank beer, and J.D. would bring "Faygo" to the house from the store next door. Defendant also denied watching pornography with the victim or J.D. He testified that he never knew when the victim was coming to his house. Defendant testified that he had no running water because his meter had been removed from the house.

         On cross-examination, Defendant testified that D.W., who is now 20 or 21 years old, is his son. Defendant described their relationship as good. He said that D.W. did not live with him but D.W. would have his friends come to Defendant's house. Defendant remembered the victim, J.D., and M.C being there. He thought that he also remembered someone named "Chance, " who had dropped D.W. off at Defendant's house "one time or something."

         Defendant testified that in March and April of 2013 D.W. rarely came to Defendant's house. He said that D.W.'s friend came to Defendant's house when D.W. was not there to meet with either D.W. or "Elizabeth." Defendant testified that the friends would sometimes hang out with him if D.W. or Elizabeth was not there. Defendant said that he developed a relationship with the young boys and that they would "drop by and talk to [him] about stuff and ask him [stuff] about school, and some of them had girlfriend problems and just random stuff." He said that M.C. struggled with the passing of his mother. Defendant also said that he would provide food to M.C. "if he was there at night." He thought that M.C. spent the night at his house one time.

         Defendant testified that J.D. did not come to the house very often because he was going to move to Hendersonville with his mother. He said that J.D. stopped by occasionally on Saturdays to meet with "Elizabeth." Defendant estimated that J.D. was at his house "no more than 10 times, " and J.D. spent the night there four times. Defendant testified that he and J.D. were alone at the house on one or two occasions, and they sometimes watched movies such as "True Blood, " and "the Vampire Diaries and stuff." They also may have watched one of the "Twilight" movies. Defendant said that he did not watch the movies with D.W., M.C., or the victim.

         Defendant testified that D.W. stayed at his house "continually for about a week[]" because D.W. and his girlfriend had some "issues." He said that other times D.W. stopped by "randomly." Defendant testified that there were three bedrooms in his house. Defendant said that one of the bedrooms belonged to D.W., one belonged to him, and the third bedroom did not have electricity and was used for storage. Defendant also testified that since D.W. was not at the house ...


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