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State v. Blackwell

Court of Criminal Appeals of Tennessee, Nashville

June 26, 2017

STATE OF TENNESSEE
v.
ANTHONY BLACKWELL

          Session April 18, 2017

         Appeal from the Circuit Court for Giles County No. CR16292 Russell Parkes, Judge

         The Defendant, Anthony Blackwell, was convicted by a Giles County jury of the aggravated rape of a child, a Class A felony, and sentenced as a Range III, Persistent Offender to fifty-years' imprisonment at one-hundred percent service. On appeal, the Defendant contends that the evidence was insufficient to support his conviction, that the trial court erred by allowing certain medical testimony and records pertaining to "child sexual abuse, " and that his sentence was unlawful. Upon review, we affirm the judgment of the trial court.

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

          Hershell Koger, Assistant Public Defender (at trial and on appeal), and Brandon E. White (on appeal), Columbia, Tennessee, for the Defendant-Appellant, Anthony Blackwell.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Brent A. Copper, District Attorney General; and Chuck Crawford and Jonathan Davis, Assistant District Attorney Generals, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and John Everett Williams, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On July 10, 2013, the Giles County Grand Jury indicted the Defendant for the aggravated rape of a child, four-month-old A.T.[1] The offense occurred in June 2013 while the Defendant cared for the child when the victim's mother was at work.

         The Defendant filed several pretrial motions, including two motions to redact portions of A.T.'s medical records from three different treatment providers, Hillside Hospital, Vanderbilt Children's Hospital, and Our Kids Center. On September 23, 2015, the trial court held a pretrial hearing on the Defendant's motions.

         At the hearing, defense counsel argued that references in the medical records to "child abuse" or "child sexual abuse" were highly prejudicial and were not an appropriate medical diagnosis. The trial court reserved ruling on most of the challenged statements until trial but did order two statements redacted from the Our Kids Center records. After the hearing, the Defendant filed a motion to preclude testimony from Dr. Kevin Oothout[2]regarding "child sexual abuse" and requested the trial court reconsider the admission of A.T.'s medical records. The trial court overruled the Defendant's motion. A jury trial began on October 5, 2015, at which the following evidence was presented.

         Trial. The victim's mother testified that, in June 2013, the Defendant had been living with her and her fiancé for about two months. During this time, the Defendant would occasionally babysit A.T. and his two-year-old brother when the victim's mother was at work. Shana Martin, a family friend, regularly cared for the children while the victim's mother was at work. On June 8, 2013, Martin cared for the children until around 5:00 or 6:00 p.m. when the victim's mother returned from work. The victim's mother testified that A.T. did not have any injuries when she bathed him and put him to bed on the night of June 8, 2013.

         The Defendant offered to care for the children the next day, June 9, 2013, while the victim's mother was at work. The victim's mother left for work around 6:00 a.m. while the children were still asleep. She testified that the Defendant was in the living room, and that he had been out all night and had not slept at all. However, the Defendant told her he was still able to babysit the children, and she testified that the Defendant was "acting fine" and that she "trusted to leave [her] kids with him."

         The victim's mother testified that she next heard from the Defendant around 12:30 p.m., when he called her and said that A.T. "had had a bowel movement and he was bleeding just a little bit." Around 12:45 p.m., the victim's mother texted the Defendant and told him she would "pick up some juice for [A.T.] for constipation after [she] got off work." She did not speak with the Defendant again until she got home from work around 5:30 p.m. When the victim's mother arrived home, she asked the Defendant where A.T.'s soiled diaper was so that she could inspect it. The Defendant responded that he had thrown the diaper away in a nearby dumpster because "it smelled really bad." The victim's mother testified that the Defendant left about ten minutes after she arrived, and that he appeared to be in a hurry. She then checked A.T.'s diaper and noticed that "[A.T.]'s rectum was bigger, it was red, it was swollen, " and "[i]t was torn in one place." The victim's mother decided to take A.T. to the emergency room at Hillside Hospital. She called the Defendant and told him that she was "taking [A.T.] to the ER for constipation, " and asked if he could come back to babysit A.T.'s brother. The victim's mother testified that, at the time, she believed A.T.'s injuries were due to constipation, and she still trusted the Defendant to watch her other son.

         At the Hillside Hospital emergency room, A.T. was initially diagnosed with an infection. However, after a second examination of A.T., the doctor informed the victim's mother that he was suspicious of A.T.'s injuries, and he called the Department of Children's Services. The victim's mother testified that A.T. was later transferred to Vanderbilt Children's Hospital by ambulance, where he was hospitalized for two days and was further examined.

         On cross-examination, the victim's mother confirmed that, when she brought A.T. to the hospital, he had been suffering from "a small diaper rash" for the past two days. However, she did not tell anyone at Hillside Hospital about the rash "because [she] figured it was just a diaper rash." The victim's mother did not tell anyone at Hillside Hospital that she had concerns about A.T.'s care. On redirect, the victim's mother again confirmed that there was no bruising, swelling, or tearing to A.T.'s anus when she bathed him the night before, and that there were no other adults around A.T. after she gave him the bath other than the Defendant and herself.

         Shana Martin testified that she had been a friend of the victim's mother for eight years and that she would babysit A.T. "[a]t least a couple of times a week." Martin testified that she watched A.T. on June 8, 2013, while his mother was at work, and that the Defendant was also at the apartment. Martin testified that she changed A.T.'s diaper multiple times that day and that she did not notice anything unusual, including any redness, swelling, bruising, or tearing to his anus. Martin also testified that there was no blood in A.T.'s stool or anything else unusual about his diapers. Martin denied that she cut A.T. with her fingernails or caused any injuries to A.T.

         The victim's father testified that he had been engaged to the victim's mother for about two years and that they had been together for about eight years. He said that, on the weekend of June 8 and 9, 2013, he was serving time in the Giles County Jail for violation of his probation. The victim's father testified that he met the Defendant at a local tattoo parlor and invited the Defendant to live with his family for a few months when the victim's mother was pregnant with A.T. After a while, the Defendant moved to Alabama for a few months, and then he returned to live with the family again. The victim's father testified that the Defendant lived with them for a month or two before the incident occurred. He said that he was not an active father and that he had never bathed A.T. or changed his diaper. He testified that he last saw A.T. on June 7, 2013, around 6:30 p.m. before reporting to jail and that he did not injure A.T. in any way.

         Kelly Duncan testified that she had been a registered nurse for fourteen years and that she was working in the emergency room of Hillside Hospital on June 9, 2013. Duncan testified that she examined A.T. after he had initially been seen by a nurse intern. At that time, A.T.'s mother requested that Duncan look "at A.T.'s bottom area." Duncan testified that, when she examined A.T.'s bottom, she noticed "bruising all over . . . the cheeks of his bottom" that was "kind of red and a very dark purple." Duncan also testified that A.T.'s anus was dilated about four times the normal size for an infant and that "there was tearing that extended from his anus all the way up to what would be his bottom." Duncan testified that, because of the color of the bruising, she believed the injuries were fairly new. Duncan said that there was no evidence that A.T. was constipated and that they charted a normal stool while A.T. was in the emergency room. Duncan also testified that there was no evidence a hard stool had caused the injuries to A.T. Duncan confirmed that A.T. was four months old and weighed 16.99 pounds when he was examined. After her examination, Duncan asked Dr. Oothout to physically examine A.T. as well. Although Dr. Oothout had already seen A.T. in the examination room and examined his diaper, he had not looked at A.T.'s bottom. After Duncan and Dr. Oothout examined A.T. together, they immediately contacted the Department of Children's Services and the Pulaski Police Department. Duncan testified that Giles County EMS transferred A.T. and his mother to Vanderbilt Children's Hospital where he could be evaluated for trauma. Duncan explained that the transfer was requested because they "suspected sexual abuse, " and Vanderbilt had experts that focused on children and abuse.

         On cross-examination, Duncan confirmed that A.T.'s medical records reflected that his "symptoms began or occurred gradually two days ago, " and that this was noted in A.T.'s medical records by Dr. Oothout. On redirect, Duncan denied that A.T.'s injuries could have been caused by digital extraction or a fingernail cut. Duncan testified that A.T.'s injuries were caused by an object larger than a finger to cause the amount of dilation to his anus. Duncan testified that, in her fourteen years of experience as a nurse treating both adults and children, she had never seen injuries like those suffered by A.T.

         Dr. Kevin Oothout, an expert in the field of emergency medicine, testified that he was a physician at Hillside Hospital in June 2013. Dr. Oothout, along with Duncan, treated A.T. on June 9, 2013. A.T.'s medical records from Hillside Hospital were admitted into evidence without objection. Dr. Oothout confirmed that A.T. arrived at the emergency room for injury to his rectum, and that he did both a preliminary examination and a second more thorough examination. During the preliminary examination, Dr. Oothout testified that he mostly relied on the nurse intern's information. Dr. Oothout testified that, during his later examination, he thoroughly examined A.T.'s rectum and that his diagnosis was that "[t]here was tears to the rectum, there was dilation of the rectum, and there was bruising around the rectum." Dr. Oothout concluded that A.T.'s injuries were caused by "non-accidential trauma. There was a high index of suspicion for some type of abuse." Dr. Oothout confirmed that he chose "child abuse" as the diagnosis in A.T.'s medical records. Dr. Oothout explained that their medical records are kept electronically, and that "[he] looked for rectal injury in that drop down menu and it wasn't available, and [he] felt like [child abuse] was the closest thing that [he] could cho[o]se from the list that fit."

         Dr. Oothout opined that A.T.'s injuries "probably occurred in the last 48 hours before [he] saw [A.T.]." Dr. Oothout based his opinion "[o]n the color of the bruising, the fact that the tears were not healed and the bruising still was red to purple, which is consistent with within 48 hours." Dr. Oothout testified that he did not believe that A.T.'s injuries were accidental, particularly considering that A.T. was four months old and could not have injured himself. Dr. Oothout concluded that, based on his observations, "something was placed inside the child's rectum with force enough to cause the bruising and large enough [in] diameter to cause the tearing, " or, in other words, A.T. suffered "inflicted trauma caused by penetration." Dr. Oothout testified that, because of A.T.'s injuries, he was obligated to contact the police and the Department of Children's Services and to transfer A.T. "to a bigger medical center to make sure there weren't other injuries that were deeper." Dr. Oothout testified that constipation, application of ointment, digital extraction, or fingernails could not have caused A.T.'s injuries. Rather, Dr. Oothout testified that A.T.'s injuries were caused when "[s]omething was placed into the rectum with force that was probably larger [in] diameter than your finger and smaller than a baseball bat." Dr. Oothout testified that, in his two decades as an emergency room physician, he had never seen injuries like A.T.'s injuries on an infant.

         Defense counsel objected to the presentation of the State's next witness, Lori Litrell, a medical provider from Our Kids Center. The parties agreed to first conduct a direct examination of Littrell "for purposes of qualifications" and then to conduct a voir dire outside the presence of the jury to determine whether she would be qualified as an expert witness. As to her qualifications, Littrell testified that she was a physician assistant at Our Kids Center, an outpatient clinic of Nashville General Hospital. Littrell testified that Our Kids Center "perform[s] forensic medical evaluations on children when there are concerns of sexual abuse." Littrell testified that she had a master's degree in nursing and was licensed as both a family nurse practitioner and physician's assistant. Littrell stated that she received specialized training in and presented lectures on child sexual abuse. Littrell said she was also a member of the American Academy of Pediatrics and the American Professional Society on the Abuse of Children, which provided her with continuing education and resources in the field of child sexual abuse. Littrell estimated that she had given approximately fifty presentations or lectures on topics relating to child sexual abuse. Littrell testified that her training at Our Kids Center included forty hours of classroom training and observation or performance of one-hundred supervised examinations before becoming an independent provider. Littrell estimated that she had performed over one-thousand forensic examinations. Littrell said that she had testified multiple times in cases of child sexual abuse and was qualified as an expert witness in all prior cases.

         After Littrell presented her qualifications, the trial court held a hearing outside the presence of the jury to determine whether Littrell would be qualified as an expert witness and to rule on the Defendant's motion to redact portions of the Our Kids Center medical records. Defense counsel voir dired Littrell regarding her background and the function of Our Kids Center. Littrell testified that "[Our Kids Center] do[es] not diagnose sexual abuse." Rather, Littrell said that she intended to testify that A.T.'s injuries were "the result of penetrated trauma." After defense counsel's voir dire, the State requested that the trial court qualify Littrell as an expert witness in the field of "child sexual abuse, and specifically, in the area of conducting and evaluating forensic examination[s] of alleged child abuse victims." Defense counsel argued that, although Littrell may be an expert in the field of child sexual abuse, it was not "relevant for the case that we're here on today" because the charges against the Defendant were for aggravated rape of a child, not child abuse. The State responded that "a finding of inflicted injury from penetrated trauma, is very relevant and something that the jury can conclude is child sexual abuse." The trial court ruled that Littrell had specialized knowledge and that, "based on her education, training, field of specialty, [and] her prior certifications, " Littrell was accepted as an expert in the field of child sexual abuse. The trial court then proceeded to hear from the parties regarding the redaction of the Our Kids Center medical records. The trial court ordered certain portions of the records redacted and the State proceeded with its direct examination of Lori Littrell.

         Littrell testified that children were referred to Our Kids Center by law enforcement, the Department of Children's Services, referrals from other medical providers, and by concerned parents. She explained the procedures for an examination and testified that each exam was documented by photographs, videos, or a combination of both. Littrell testified that, on June 10, 2013, she performed the forensic examination of A.T. and created a report on the examination, which was admitted without objection. Littrell testified that she observed redness, bruises, and swelling around A.T.'s anal area, and that the anal opening was dilated. Littrell also noted two separate anal tears. Littrell testified that the examination was performed at the Vanderbilt Children's Hospital emergency room and that the examination was recorded and photographed. Littrell identified multiple photographs of A.T.'s bruised and torn anal area, which were admitted into evidence and published to the jury without objection. Littrell also identified a video of A.T.'s examination, which was admitted into evidence and played for the jury. Littrell testified that, based on her experience, she classified A.T.'s injuries as acute, meaning that they would have happened "any time in the last 72 hours, but there's no way to pinpoint an exact date." Littrell also testified that she "found the injuries consistent with penetrative trauma." Litrell said that "[t]here was no history whatsoever of any sort of accident." Litrell also said that A.T.'s injuries could not have been caused by constipation, application of ointment, or digital extraction. Although Littrell opined that it was "possible" some of A.T.'s injuries could have been caused by long fingernails, she explained that she "wouldn't expect fingernails to cause bruising."

         Dr. Cristina Estrada testified that she was employed at Vanderbilt Children's Hospital where she served as an associate professor of pediatrics and emergency medicine and the division chief of pediatric emergency medicine and the fellowship training program for pediatric emergency medicine. Dr. Estrada testified that her primary duty was to work as a physician in the pediatric emergency room and treat children at Vanderbilt Children's Hospital. Dr. Estrada testified that she had evaluated approximately 70, 000 children, including approximately 30, 000 infants, since she began practicing medicine in 2001. Dr. Estrada was qualified as an expert in the field of pediatric emergency trauma and general pediatric emergency room care. Dr. Estrada testified that she treated A.T. at the Vanderbilt Children's Hospital emergency room in the early morning hours of June 10, 2013. A.T.'s medical records from his hospitalization at Vanderbilt Children's Hospital were admitted into evidence without objection. Regarding A.T.'s injuries, Dr. Estrada testified that he had "a tear . . . [on] his anus as well as some bruising around his anus and he also had a bruise to his lower back." Dr. Estrada said that the bruising and tear were "significant" and that the tear "was at least one centimeter in depth and length." Dr. Estrada testified that the tear was significant because it was not an anal fissure and "did not appear to have occurred by normal routine daily life." Dr. Estrada also testified that A.T.'s rectum "appear[ed] enlarged and dilated." Dr. Estrada confirmed that she relied on Littrell's examination and notes in treating A.T. as well. Dr. Estrada testified that she had seen injuries similar to A.T.'s injuries and that they were "exclusively penetrating traumatic injuries." Dr. Estrada also testified that A.T.'s injuries could not have been caused by digital extraction, a fingernail cut, constipation or a hard-stool bowel movement. Dr. Estrada concluded that "[b]ased on the child's developmental age and stage, these would certainly have to be by penetrating trauma." On redirect examination, Dr. Estrada also confirmed that she "100 percent believe[d] that this was as a result of sexual abuse." Dr. Estrada noted that it was "very difficult to stage or age any of [A.T.'s] injuries, " but that "they appear to be more recent than not."

          Dr. Harold Lovvorn, an expert in the field of pediatric surgical care, testified that he was a faculty pediatric surgeon at Vanderbilt Children's Hospital. Dr. Lovvorn also treated A.T. at Vanderbilt Children's Hospital on June 10, 2013. Dr. Lovvorn testified that he performed an exam of A.T. under anesthesia in the operating room in order to get a complete and thorough exam both externally and internally. Dr. Lovvorn testified that he observed "pretty significant injuries to [A.T.'s] anal region, " including "two lacerations" and bruising around his anal opening. Dr. Lovvorn testified that the injuries were "very unusual in a four-month-old baby and [were] highly suspicious for injury inflicted upon the child." Dr. Lovvorn explained that, at four months old, a baby is not mobile, and his limited movements could not have caused the injuries. Dr. Lovvorn also testified that there was no "consistency with passage of a firm stool that would have caused that level of injury." Dr. Lovvorn confirmed that A.T.'s injuries were likely caused by a type of penetration. Dr. Lovvorn said that he "would put the injury somewhere around 12 hours would be [his] best estimate." On redirect, Dr. Lovvorn opined that the object used to penetrate A.T.'s anus would have been about an inch or more in diameter.

         Investigator Ryan Southerland of the Pulaski Police Department testified that he was notified about A.T.'s case on June 10, 2013. Investigator Southerland obtained A.T.'s medical records, spoke with medical personnel at Hillside Hospital, Vanderbilt Children's Hospital, and Our Kids Center, and interviewed the victim's mother after A.T. was released from the hospital. After the interview, Investigator Southerland also searched for A.T.'s diapers that were allegedly thrown in the dumpster, but no diapers were found. Investigator Southerland said that the dumpster was "half to less than half" full and was located thirty to forty feet away from the balcony of the victim's mother's apartment.

         Investigator Southerland confirmed that A.T.'s mother was at work on June 9, 2013, and A.T.'s father was incarcerated all weekend. On June 12, 2013, Investigator Southerland located the Defendant, who agreed to come to the police department for an interview. Investigator Southerland testified that the interview lasted around an hour and that it was video and audio recorded. The video was admitted without objection and played for the jury. Investigator Southerland testified that the Defendant was asked multiple times during the interview what happened to A.T. First, the Defendant told Investigator Southerland that the only thing he noticed was blood in the diaper. The Defendant told Investigator Southerland that he spoke with A.T.'s mother on the phone and that she advised him "to put Vaseline on it." Later in the interview, the Defendant mentioned that there were also rips to A.T.'s anus as well as a green and off-white substance. Investigator Southerland testified that each time the Defendant was asked about what happened, he noticed and recalled different things. The Defendant also told Investigator Southerland repeatedly that he did not do anything to A.T. The Defendant told Investigator Southerland that the night before he babysat A.T. he was painting at a friend's house and consumed "six or seven" beers and was intoxicated. The Defendant told Investigator Southerland that he arrived back at the apartment around 4:30 a.m. and that he had been up all night. Investigator Southerland also testified that the Defendant said during his interview that "he may have got [sic] rough with the child and . . . he wasn't going to deny that he did get rough with the child." During the interview, a DNA swab was taken from the Defendant. After the interview, Investigator Southerland prepared rape kits to be sent to the Tennessee Bureau of Investigation ("TBI"), obtained final copies of the medical records, and presented the case to the Giles County Grand Jury.

         On cross-examination, Investigator Southerland confirmed that A.T.'s mother, A.T.'s father, and Martin were never suspects. Investigator Southerland did not recall reading in the Hillside Hospital medical records that A.T.'s injuries had "began, occurred gradually two days ago." Investigator Southerland also did not recall if A.T.'s mother told him that A.T.'s injuries had started or gotten worse two days before he was taken to the hospital.

         Casey Koza, a forensic technician formerly employed by the TBI, testified for the defense. Koza testified that, in June 2013, she specifically worked in the area of forensic biology and serology. Regarding A.T.'s case, Koza testified that she received two sexual assault kits containing various bodily swabs, an article of baby's clothing, and two diapers with wipes. Koza testified that, given the charge of aggravated rape of a child, she was testing only for semen on the items she received, and that all items tested negative for the presence of semen. According to TBI policy, because no semen was found, none of the items were sent for any further DNA testing. On cross-examination, Koza confirmed that the presence of fecal matter in A.T.'s diapers made it difficult to test for semen and that she could not conclusively say there was no semen present. Koza also testified that the fecal matter contained bacteria which could degrade biological evidence over time, and that the diapers were not examined until August and September 2013. Koza also confirmed that diaper changes would have affected whether there were any fluids present for testing and that condom use would have eliminated the biological evidence.

         The Defendant testified that he met A.T.'s father and mother at a tattoo shop in Pulaski, Tennessee, where his girlfriend worked. The Defendant testified that he lived in Huntsville, Alabama at that time and wanted to move to Pulaski, so the victim's father invited him to stay at his house until he found work. The Defendant confirmed that he had a criminal history, including felony theft and burglary convictions. The Defendant testified that he did not have a job and that he would frequently watch A.T. and his brother while A.T.'s mother was at work. The Defendant testified that he did not watch the children on June 8, 2013, but that he did watch them the next day, June 9, 2013. The Defendant stated that, around 11:30 p.m. or 12:00 a.m. on June 8, he went to help a friend paint his apartment. He did not arrive back home until 4:30 or 5:00 a.m. in the morning. The Defendant testified that he stayed awake so that he could watch A.T. and his brother after A.T.'s mother left for work. The Defendant confirmed that he had consumed seven or eight beers that night.

         The Defendant testified that, while he was watching the children on June 9, 2013, he "noticed that [A.T.] had a hard stool early that morning after he woke up and [the Defendant] fed him." He testified that he "cleaned [A.T.] up" and "found some blood in his diaper, " but that he "didn't think nothing [sic] about it until later on that day." The Defendant testified that, after changing A.T.'s diaper, he went outside on the balcony to smoke a cigarette and threw the diaper in a dumpster about ten to fifteen feet away. The Defendant stated that he noticed "what looked like cuts" on A.T.'s anus later that day, and so he called A.T.'s mother. The Defendant testified that A.T.'s mother told him to "put some Vaseline on it and make sure that he was comfortable." The Defendant stated that he later noticed an "off-white, green and pink substance" in A.T.'s diaper. The Defendant testified that when A.T.'s mother arrived home from work, he left for a friend's house. The Defendant said that A.T.'s mother called him after he left and told him she was taking A.T. to the hospital and asked the Defendant to come back to watch A.T.'s brother. The Defendant testified that he "got a little frustrated" with A.T. while he was watching him and that he "may have been a little rough, but [he] ...


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