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State v. Alvarado

Court of Criminal Appeals of Tennessee, Nashville

June 27, 2017


          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2014-C-2531 Steve Dozier, Judge

         The Defendant, Jose Dimas Alvarado, appeals as of right from his conviction for aggravated sexual battery. See Tenn. Code Ann. § 39-13-504. The Defendant argues (1) that the trial court erred in admitting the victim's forensic interview as substantive evidence; (2) that the trial court erred in allowing the State to present evidence and argument that the Defendant had characteristics typical of perpetrators of child sexual abuse; (3) that the trial court erred in allowing the prosecutor to make improper statements during closing argument that referenced facts outside the record and shifted the burden of proof to the Defendant; (4) that the trial court erred in instructing the jury on aggravated sexual battery as a lesser-included offense of rape of a child; and (5) that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

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

          C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and Georgia Simms and Daniel Satterfield, Assistant Public Defenders (at trial), for the Defendant, Jose Dimas Alvarado.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn R. Funk, District Attorney General; and Alyssa Henning, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         On September 26, 2014, the Davidson County Grand Jury indicted the Defendant for one count of rape of a child, involving the eleven-year-old victim, M.A.[1] On July 16, 2015, the trial court held a hearing on the State's intent to use a recording of a forensic interview.

         Pre-Trial Hearing

         The trial court held a pre-trial hearing to determine the admissibility of a video recording of the victim's forensic interview. At the hearing, counsel for the defense requested that if the forensic interview was generally admissible, the court order the State to redact ten specific portions of the interview. The trial court subsequently found that the video recording of the forensic interview complied with the requirements of Tennessee Code Annotated section 24-7-123. The trial court granted the State's motion to use the recording as substantive evidence at trial, subject to two redactions. The court reasoned that two statements made by the interviewer, Barbara Tallent, were "overly prejudicial and barred by Rule 403 of the Tennessee Rules of Evidence." The following two statements were redacted:

1. 34:33-34:41- Ms. Tallent: "That's a lot to worry about. You had a lot of things to think about."
2. 36:41-36:50- Ms. Tallent: "That's a lot of pressure on you and I'm really sorry that you've been carrying that around. He had no right to do that."

         Jury Trial

         The Defendant's jury trial began on July 20, 2015. The victim testified that he was thirteen years old at the time of the trial. He lived in Nashville with his parents and his six siblings. The victim identified the Defendant and said that he knew him from attending the same church. The victim agreed that something happened with the Defendant one evening during a church service, but he did not remember the exact date. The victim explained that he was attending an all-night service at his church that began at 7:00 p.m. and lasted until 6:00 a.m. the next morning. The victim stated that there was a break in the service, and the attendees shared a meal. The victim said that following the meal, the Defendant asked the victim to help him carry leftover food to his car. The victim agreed and accompanied the Defendant to a dark area of the parking lot.

         The victim testified that he was alone with the Defendant and that he had told no one where he was going. The victim said that he knew the Defendant and had talked to him at church prior to this night. When asked what happened when he and the Defendant reached the car, the victim replied,

And then [the Defendant] told me to get in the car and so I did, right. And like I was scared and then he told me to climb into the back of the car and then he went to like the driver's seat, the driver's seat and then he got in and he locked all of the doors and then he got in and he locked the driver's seat door and I went to the very back because he told me to go there. And then he went to the back when I went to the back, he told me to take my clothes off. And I was really scared and like I didn't know what to do so I just did what he said and I did, right.
And [the Defendant] was taking his clothes off. I was trying to find a way out. Like, I was trying to see if like the back door was open or something, it wasn't. I was scared. My heart was beating really fast. I remember he told me to make sure nobody [was] watching or nobody [was] - or like if nobody [was] nearby and I was like just hoping someone would be there.

         The victim said that he did not see anyone nearby because it was dark, and it was dark where the Defendant's car was parked. The victim testified that the Defendant's car was red and that it contained "the driver's seat, the passenger [seat, ] and three seats for like three people in the back, and then [there was] the very back part where you would like store stuff and it was like a bunch of space." The victim agreed that the three seats in the back were in one row and that this row of seats connected with the back part of the car so that there was not a separate trunk area. The victim asserted that he had not been in the Defendant's car before this evening. When asked what happened after the victim had taken off his clothes and the Defendant had removed his own pants, the victim said that the Defendant instructed him "to turn around and to like bend over." The victim said that he did this and then "remember[ed] just feeling a horrible pain" "in [his] rear end." Counsel for the State showed the victim two diagrams of a boy, and the victim circled the area he was referring to as his "rear end." When asked if he knew what was causing the pain, the victim replied, "It was [the Defendant's] private part" and that the Defendant's "private part" was "[i]nside" his anus. Counsel for the State showed the victim a diagram of a man and asked the victim to circle what he was referring to as the Defendant's private part. The victim then identified the penis on the diagram.

         The victim testified that after he felt the pain, the Defendant "took it out and he was cleaning something." When asked what the Defendant was cleaning, the victim said, "It was my rear end, but I don't know what it was" that the Defendant was cleaning off. The victim explained that the Defendant used "his undershirt, like a white one he had" to clean. The victim said that after cleaning, the Defendant "rolled [the shirt] up and . . . put it outside." He said that after that, the Defendant told the victim to "pull up [his] pants and to get dressed." The victim said that he got dressed and that the Defendant got dressed, too. He said that the Defendant put on a different shirt from the one he used to clean and instructed the victim not to "tell anybody." The victim testified that he returned to the church and did not tell anyone about what had happened because he "felt scared."

         The victim agreed that at some point he did tell someone what happened that night. He said that several months after the incident he told his mother. When asked how it came about that the victim told her, he said, "I tried to do something horrible to my brother." He asserted that she "walked in on" the victim trying to "do what happened to [him] to [his brother]." The victim said that his mother walked in "before it happened[, ]" and "a day after" he told her what the Defendant did to him. Counsel for the State asked the victim what he remembered about that conversation and he responded,

It was a question like: She told me, like has something happened to you that you're not - you're not the same person no more and like, and like spending time with the family. And she just kept asking me and she was like has someone done anything to you or has something done something - like touched you or something. Like you can tell me. And I was like, no. Like I told her several times, like no, and she was just like mentioning names of people and she asked me again she was like, has someone done something to you? And I was like yes. And then she was mentioning names and then it came up to [the Defendant's] name and I told her it was him. And that's what I told her.

         The victim said that the Defendant's name was not the first name his mother mentioned. The victim agreed that counsel for the State had shown him "a video of [the victim] talking to a woman named Barbara [Tallent] about what happened." The victim agreed that the woman in the video interviewed him about the incident with the Defendant, he identified a disc containing the interview that he had previously initialed, and he asserted that he told the truth during that interview. The disc containing the forensic interview was entered into evidence and marked as Exhibit 3.

         On cross-examination, the victim was asked about several details from the night of the incident with the Defendant. The victim agreed that he remembered the Defendant's having a red car, and he confirmed that he did not remember the exact date that this happened. The victim said that "it was warm" outside, and when counsel for the defense asked if it was summertime, the victim said, "I guess, yeah." He confirmed that his church had all-night vigils at approximately "the end of every month[, ]" and he agreed that he "remember[ed] this happening [during] one of the summertime" vigils. The victim was then asked if he remembered telling Officer Timothy Miller that the Defendant "tried to kiss [him] on the mouth[, ]" and the victim replied, "I don't remember saying that." The victim agreed that he did not tell Ms. Tallent that the Defendant tried to kiss him on the mouth.

         Dr. Verena Brown testified as an expert in child abuse pediatrics and in the field of forensic examinations. Dr. Brown said that she was employed with Vanderbilt and several times a month worked with Our Kids Clinic, which specialized in child sexual abuse. Dr. Brown explained the standard procedure for when she sees a child in conjunction with Our Kids Clinic:

[E]very child that we see in our program gets seen primarily or initially by a social worker that will take the history from the parents of what the allegations are. And then at that point, they will tell the clinician. So in my case, if it's my client, they will tell me what the allegations are, so when I examine the child, I know what sort of things I'm looking for.
And then I will go into the room and talk to the parents or caretakers about their medical history specifically. Meanwhile, if the child is old enough to speak, the social worker will be talking with the child. After that, we will do the physical exam.

         Dr. Brown further explained that the parent and the child are interviewed separately.

         Regarding the victim in this case, Dr. Brown testified that she performed an exam on the victim in February 2014. She identified the "Our Kids report" on the victim as a report generated by her and a social worker for Our Kids Clinic. She said that it contained "the history that [the victim] gave and the documentation that this was a full exam." Dr. Brown read the medical history contained in the report, which included the following:

When asked to tell [Dr. Brown] what occurred at church, [the victim] reported, it was like October last year and that his family was attending the church service that began at 7:00 p.m. and ended at 6:00 a.m. He state[d] that they were eating and that he was sitting next to a man he knew from church. He state[d] - quotes, this man was really kind to me, he gave me candy. He state[d] that the man told him to take the leftover food and put it in his car. [The victim] said okay and began walking toward the car, but it was dark and he became scared. He state[d] that he decided he was not going to take the food to the car and turned around. He state[d] as he turned around, the man was coming toward him and he told him to put the food in the car. [The victim] state[d] he told the man quote I am not going to go, I am scared end quote. But that the man continued to tell him to go to the car.
[The victim] stated that when they got to the car, the man told him to get in and asked - and he asked why. He state[d] that the man kept telling him to get in and they both got in the car and the man locked the door. [The victim] stated the man told him to pull down his pants and kept repeating, quote make sure nobody come[s], end quote.
[The victim] stated, quote I was paralyzed, end quote. He state[d] he became concerned that the man had a gun and that he did everything the man told him to do because he did not know what could happen to him. When asked what happened after the man pulled down his pants, [the victim] state[d] that the man pulled down his pants and told him to bend over. When asked what happened next, [the victim] stated quote he put his private part in my butt, end quote. He state[d] that he was crying because quote it hurt so bad, end quote. He state[d] the man kept telling him not to make a sound and that the man continued to put it in his butt and then he quote took off his shirt and he cleaned himself off and cleaned me off, end quote.
When asked if he had seen the man put anything on his penis, [the victim] said no. [The victim] also stated that he did not know what a condom was. When asked if he saw anything come out of the man's penis, [the victim] said he did not know. When asked what he had cleaned off, [the victim] said he did not know, but that the man told him that he was going to clean his butt and clean himself.
[The victim] told him at that point the man told him quote you better not tell anybody, end quote. He said he became concerned that the man might hurt him or his family. [The victim] state[d] that the man then told him to quote/unquote get out of the car. [The victim] state[d] that he [was] not sure where the man went for the rest of the night, but that he does not remember seeing him.
When asked if something like this had ever happened before, [the victim] said no. When asked if it happened after this, he said no. [The victim] stated that on another occasion while he was playing outside with his friends - he th[ought] this occurred in November - the man kept calling him, quote, [M.A.] come, [M.A. come], end quote. But that he ignored him. With regard to any previous sexual abuse, [the victim] denies any.
When asked if there was any other contact during the incident, [the victim] said no. When asked if there was anything else he needed to share, [the victim] stated no.

         Dr. Brown testified that the medical exam was normal, aside from a "little fissure or a little opening of skin at the 12 o'clock position of the anus." She explained that this could be caused by "sexual abuse" or from "passing a large stool or something of that nature." She said that the exam was "four months after the incident, so it's unlikely [the fissure] was due to th[e] incident" involving the Defendant. When asked if she would "expect to find an injury after an incident like the one that [the victim] disclosed[, ]" she responded, "Certainly not four months later. In fact, it's actually unusual to find any sort of injury at all after such a disclosure." She further explained that "the anus heals very, very quickly. And so it's very[, ] very normal to have a normal exam, especially [four] months later." She said that a rape kit was not collected due to the passage of time. She said that a standard time to collect a rape kit from a child was "within three days of an assault" because "[t]hat's when you are likely to find evidence of DNA." She confirmed that it was "possible for a child to be anally penetrated and there be no medical findings."

         On cross-examination, Dr. Brown confirmed that "only one act of penetration" was disclosed by the victim and that she was not "looking for any other type of sexual conduct during that exam." Dr. Brown also agreed that according to her information, the "act of penetration occurred in October of 2013." Dr. Brown agreed that during the exam, she found no signs of "chronic trauma" and that she did not consider the "anal fissure either a sign of acute trauma or chronic trauma."

         O.A. testified that she lived in Nashville with her husband and family and that the victim was her son. She identified the Defendant and stated that she knew him because he attended "the same church [she and her family] used to" attend. When asked how long she had known the Defendant, she said "[m]ore than [fifteen] years[.]" She explained that she "did not remember the exact year that he was there[, ]" but the Defendant had lived "on the other side" of the duplex that she and her family rented. She said that he lived there "maybe [two], [three] years." She confirmed that the victim knew the Defendant through church and said that "[s]ometimes . . . [fifty], sometimes [forty]" people attended their church. She agreed that the largest number of church attendees was "80" but explained that not "everybody goes" "every day[.]" She agreed that the victim was "around the [D]efendant at church and church related activities." O.A. confirmed that on January 16, 2014, she observed her son "exhibiting some odd behavior." She said that she saw the victim doing "something suspicious" to another one of her sons, J.A. She asked J.A. if the victim had done anything to him, and she said that J.A. responded, "[N]o, he just tried to touch my underwear."

         O.A. said that the next day, she told her nineteen-year-old daughter about the situation, and her daughter told her "somebody is doing that to him. So you need to ask him." O.A. said that she decided to talk to the victim and asked him,

Why did you try to do this to J.A. to try to . . . pull his pants down? So I said to him, is there someone doing that to you?
So he [was] just turning to look at me. And I kept saying is there somebody doing this to you? And I told him, you have to tell me the truth. And he just kept looking at me and crying. And I said . . . tell me who it is. Is it someone from school, is it a teacher? He said no. And I said is [it] someone here at home? I said is it one of your uncles? He said no. And I said then who? And then I said, where, at church? And he said yes. And I said who? Who? And he said [the Defendant].

         She explained that the victim did not give her any specifics, but that he "just kept crying." O.A. called her husband and told him "what [she] had discovered." She said that her husband called an elder from their church, Ignacio Perez. Mr. Perez came to their home and spoke with the victim and his parents. O.A. stated that he encouraged them to "not stay quiet" and "to report this to the police."

         O.A. explained that the following day, she called the victim's pediatrician, Dr. Carson. She said that Dr. Carson returned her call, and O.A. told her what happened with the victim. She said that the doctor referred her "to a counselor to tell [her] what [she] should do." O.A. said that she talked to this counselor, who told her that she "needed to report [the incident] to [the] police." O.A. said that after speaking with the counselor on Monday afternoon, she called the police immediately. She said that the police and a detective came to her home and that she took the victim to see a doctor "the next day or two days after."

         When asked if she had noticed anything regarding the victim's behavior about attending church before the victim told her about the incident, she said, "Sometimes [the victim] didn't want to go. And I would tell him go, to go with [his] dad and go to the church. He [would] say no, I don't want to go, and I would insist that he should go." She said that this behavior started about six months before the victim told her what had happened with the Defendant.

         On cross-examination, O.A. said that the vigils at her church occurred at the end of every month. She explained that many people attended, and during a break in the service, it was common for adult church members and the children to go outside and play for about thirty minutes. O.A. confirmed that during these services, she had not seen "anything strange between [the Defendant] and [the victim]." She also agreed that she had seen no physical signs of abuse on the victim; however, she said that he was "more quiet and sad and lonely" during the months leading up to January 2014.

         J.F.A.C. testified that he was married to O.A. and that the victim was their son. He explained that he lived with his family in Nashville and that their home was divided into two units. J.F.A.C. stated that his family lived in one unit and that they rented out the second unit. J.F.A.C. identified the Defendant and said that he met him at a church in Nashville in 1997 or 1998. He explained that the Defendant rented the second unit of their home in either 2007 or 2008 and that he remained there for a "year and a half or two years."

         J.F.A.C. recalled that on January 17, 2014, his wife called him while he was at work and informed him that the Defendant had been abusing the victim at the church. J.F.A.C. said that he went home and called Mr. Perez and that Mr. Perez came to his home and spoke with J.F.A.C., O.A., and the victim. J.F.A.C. explained that they took the victim to a clinic and then called the police at the suggestion of personnel at the clinic. He said that an officer came to their home. He said he and his wife took the victim to see a physician and that they took "him to a place where they d[id] therapy." Regarding the specifics of the incident involving the Defendant, J.F.A.C. said that he "tried many times to talk to [the victim], but he never wanted to tell [J.F.A.C.] specifically anything." He said that the victim met with many people regarding the incident including treatment providers and the District Attorney. He testified that either he or his wife took the victim to these meetings. He explained that when the victim met with a therapist, neither he nor his wife were in the room because "it [was] treatment just treatment between . . . that person and [the victim.]"

         J.F.A.C. explained that prior to the victim's allegations, his relationship with the Defendant was "very good." When asked to explain his family's relationship with the Defendant, he responded, "Spiritually speaking, it was a relationship through the church. It was a spiritual relationship that [grew]." He said that as a member of the church, the victim spent time with the Defendant. He agreed that the church regularly held nighttime vigils and that both the victim and the Defendant attended these services.

         J.F.A.C. also testified that he placed a telephone call to the Defendant that was recorded for the police. He explained that a detective set up the recorded call and remained with J.F.A.C. while he spoke to the Defendant. J.F.A.C. said that he and the Defendant spoke Spanish during the call. He said that he called the Defendant to discuss the incident with the victim. J.F.A.C. said that he asked the Defendant if he attacked the victim and that the conversation lasted approximately twenty to thirty minutes. When asked about his impression after the telephone call, J.F.A.C. said, "At the end of the call, after making so many questions for him to tell me, he told me that, yes . . . that he had done it and that if that would make me feel better, he accepted that he did that."

         On cross-examination, J.F.A.C. confirmed that he spoke with the church elder, Mr. Perez. He agreed that two days later he took the victim to a clinic and called the police after speaking with a doctor. J.F.A.C. said that after he called the police, Officer Miller came to his home and spoke with him and his family in English. He agreed that he translated some of Officer Miller's questions for O.A. He said that after speaking with the family together, Officer Miller spoke with the victim separately in a different room. J.F.A.C. agreed that after the victim told his parents about the incident with the Defendant, he and his family quit attending the church. He also confirmed that "if [he] had known anything was wrong before [the victim] told [him] about this, [he] would have quit going to church a long time before that."

         J.F.A.C. was also questioned about the overnight vigils at the church. He agreed that the vigil would last from 6:00 p.m. to 6:00 a.m. He confirmed that he did not remember "any service where [the victim] disappeared." However, he explained that it was "very hard to tell because [he] was an elder in the church and [he] would be focused on working on what was needed for the service of the church." J.F.A.C. agreed that he did not observe the victim and the Defendant leave the church together, but he said that he did see something "strange happen between [the victim] and [the Defendant]." J.F.A.C. explained that the Defendant "was very friendly with children. He would buy them candy."

         When asked about the recorded telephone conversation with the Defendant, J.F.A.C. agreed that throughout the discussion, the Defendant told him "no, no, no, . . . this did not happen." He said that it was at the end of the conversation when the Defendant told J.F.A.C. that he had touched the victim and "accept[ed] the situation."

         On re-direct examination, J.F.A.C. testified that the children of the church liked the Defendant. He claimed that when the Defendant "would walk into the church, the children would follow him." When asked "isn't it correct that also being active in the church the [D]efendant would go on trips with other members of the church, including children, members of the church, isn't that correct?" he replied, "Yes, it's true."

         Sergeant John Farrell testified that he was employed as a detective in the sex crimes unit of the Metropolitan Nashville Police Department (MNPD) in January 2014. He identified the Defendant and agreed that he conducted an investigation into "allegations of child sexual abuse involving the [D]efendant." He explained that during such an investigation, it was not typical for a responding officer to interview children who made allegations of sexual abuse because they were not trained to do so. Sergeant Farrell said that he responded to the scene in this case but that he did not interview the victim.

         He explained that the protocol for this type of situation was as follows:

[W]hen a child makes a . . . disclosure of sexual abuse to, say, a parent or some type of guardian, and/or whoever, a teacher maybe, they might call the police or notify [the Department of Children's Services (DCS)]. Once we get the information, we will go usually speak to the person or people that that child disclosed that information to. In the meantime, we will be in contact with DCS. And usually DCS or sometimes our unit will set up what we call a forensic interview to have that child interviewed at what we call a child advocacy center. So that's kind of how the child gets interviewed and you know the interviewers at the child advocacy center are highly trained to do this type of interview.

         He explained that the interviewers at the child advocacy center are trained differently than patrol officers and said that "they go through many courses to learn how to do this. This is what they do day in and day out." Sergeant Farrell stated that another reason he did not interview the victim when he responded to the scene was because the officers tried "to keep the amount of interviews of the victim to a minimum."

         Sergeant Farrell said that when he arrived at the family's home, he was not the first officer to respond to the scene. He explained that when he arrived, he spoke to the patrol officer to determine "what was going on and what the allegations were." He said that he spoke to the parents of the victim. Sergeant Farrell explained that he spoke in English with the parents and that the victim's father "communicate[d] pretty well" and was "interpreting what [the victim's mother] was saying." He confirmed that there was no official translator on the scene.

         Sergeant Farrell agreed that he suggested that the victim's father assist him in obtaining a recorded telephone conversation with the Defendant. He explained that "[the victim's father called the [Defendant] . . . on the telephone. And basically talked to him about these allegations. While speaking with him, we record[ed] the call in hopes of gaining some sort of confession or admission." Sergeant Farrell said that he encouraged J.F.A.C. to "tell [the Defendant] that [J.F.A.C.] knew about these allegations and . . . confront him about it and ask him to explain himself[.]" He said that J.F.A.C. agreed and that the recorded telephone conversation occurred in Spanish. Sergeant Farrell testified that he did not speak Spanish, so he was not able to understand the conversation as it was taking place. However, he said that during the telephone call, he observed that J.F.A.C. was "upset and emotional" and "at one point he may have been crying." He agreed that he gave J.F.A.C. directions regarding the recorded conversation before the telephone call took place and that he did not give directions throughout the telephone conversation. On cross-examination, Sergeant Farrell agreed that he sent the "recorded [tele]phone call to other officers for interpretation" because he did not speak Spanish. A transcript of the English translation of the conversation was entered into evidence, and it was read individually by all of the jury members.

         Sergeant Farrell agreed that he became aware during an interview that the victim made a disclosure about "the [D]efendant['s] using some sort of shirt to clean [the victim] and himself." He testified that he did not execute a search warrant during his investigation to collect this shirt or other evidence because the incident had occurred several months before the victim made a disclosure. He said that it was not likely officers would find "specific DNA like spermatozoa." Sergeant Farrell also said that when evidence ...

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