Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 9, 2016
from the Circuit Court for Hickman County No. 145023CR James
G. Martin, III, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
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.
T. Woodall, P.J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ.,
T. WOODALL, PRESIDING JUDGE
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
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."
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."
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."
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
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.
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
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"
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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."
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.
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.
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
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
. . .
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
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
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.
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
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."
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.
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.
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