Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 23, 2017 at Knoxville
from the Circuit Court for Rutherford County No. F-69052
Royce Taylor, Judge
Defendant, Angela Montgomery, appeals as of right from her
convictions for six counts of rape of a child. The Defendant
argues (1) that there was insufficient evidence to support
her convictions; (2) that the trial court erred in allowing
the State to present evidence that the Defendant used
corporal punishment to discipline her children; and (3) that
the trial court erred in allowing the prosecutor to introduce
a witness's prior inconsistent statements. Following our
review, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
L. Melden, District Public Defender; and Sean G. Williams and
Jeffrey Burton, Assistant Public Defenders, for the
appellant, Angela Montgomery.
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Jennings H.
Jones, District Attorney General; and Hugh Ammerman and Sarah
Davis, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
Rutherford County Grand Jury indicted the Defendant for six
counts of rape of a child, involving the victim,
See Tenn. Code Ann. § 39-13-522(a) (2003). A
jury trial began on March 10, 2015.
outset of the trial, a jury-out hearing was held to determine
the admissibility of evidence that the Defendant used
corporal punishment as a means to discipline the victim and
his three siblings. The State sought to enter such evidence
at trial "to show the effect that it had on [the victim]
and his acquiescence with [the Defendant's]
actions." Counsel for the Defendant responded that there
was no correlation between corporal punishment, or "acts
of discipline involving physical force[, ]" and the
Defendant's charge of raping her son.
offer of proof, the victim testified that between the years
of 1999 and 2002, his mother would use "either a switch
or a wooden spoon" to spank the victim and his siblings.
He explained that she used such punishment techniques
"when [the children] weren't cooperating in whatever
[the Defendant] really wanted them to be doing" or when
the victim or his siblings "directly defied her."
The victim stated that the Defendant would use a wooden spoon
or switch to hit the disobeying child "anywhere from the
calf up to the buttock area to the lower back." He
explained that the Defendant "would hit [the children]
until she felt that [they] had learned [their] lesson for
whatever the infraction" was. The victim confirmed that
the Defendant hit them in such a way as to leave marks on
asked what impact he believed his mother's use of
corporal punishment had on his personal behavior, he
Well, I learned pretty quick that if I didn't do what she
said[, then] I was going to get a pretty substantial
switching or a spanking with the wooden spoon. I mean, she
quoted over and over again, spare the rod, spoil the child.
And stated that she was a strict parent. And that was how she
brought us up. And that's what you are supposed to do is
to show your children that they do not defy you.
prosecution asked the victim if he was scared of the
Defendant, and he replied, "Yes." The victim also
confirmed that "there was no doubt that [the Defendant]
ruled that household."
hearing arguments from the State and the Defendant and
observing the offer of proof, the trial court allowed the
State to introduce evidence that the Defendant used corporal
punishment on the victim and his siblings. The trial court
reasoned as follows:
Well, I think from the standpoint of looking at the proof
that was just presented, this matter is relevant probably
under 401 simply to show the nature of the relationship
between the parent and the child.
I think that's important. If it falls under 404(b), I
think it has to be offered to show a complete story of
what's going on in the household. And it would be
appropriate to allow that in under those circumstances. So
I'm going to allow the proof to come in.
jury returned to the courtroom, and the following testimony
was presented. The victim testified that he was born in 1989,
and that he turned thirteen years old in 2002. He stated that
the Defendant was his biological mother and that he had three
younger siblings: M.W., J.W., and A.W. He explained that his
parents were divorced in 1996 and that during the period of
1999 to 2002, he lived with the Defendant "every other
weekend[, ]" and then he would split time between his
parents for "any kind of like school holiday."
victim described the first time that the Defendant "did
sexually inappropriate things with [him]." The victim
explained that he had brought home a permission slip from
school regarding a sexual education class. He stated that
when the Defendant saw the permission slip, she said,
"[T]his isn't something you need to learn at school,
. . . this is something that would be better learned at home
with me." The victim testified that he said he thought
his father should sign the permission slip, but the Defendant
told him "that it didn't matter. That she was still
[the victim's] parent. And that she would teach [him]
about the sexual education that [the victim] needed to
victim testified that that night, after his three younger
siblings had been put to bed, the Defendant "sat [the
victim] down on the love seat in the living room" of
their home. He said that the Defendant told him "that
this [was] something that everybody ends up learning as you .
. . grow into an adult" and that she removed her
clothing and showed the victim "her vagina and genital
area." When asked to describe the incident in further
detail, the victim said,
She spread her legs and then began to spread her labia open
and started to point out her vagina and what that would be
used for in sex and reproduction. And that's where the
baby comes from. And, you know, that's kind of where the
action is when you are having sex.
. . . .
She asked me if I wanted to touch her. And I stated that I
did not. And then she went ahead and took her top off and
showed me her breasts and talked about how they were involved
in what's called foreplay and . . . during intercourse.
And how that they were where the baby breast feeds. And that
[was] the role they would play as far as actually having a
child and feeding it.
victim asserted that during this incident, the Defendant did
not touch him and that he did not touch the Defendant. The
victim stated that at the conclusion of this incident, he
told the Defendant that he did not think he was ready for
"that much in graphic detail."
sleeping arrangements in the Defendant's home, the victim
testified that M.W. and J.W. shared bunk beds in one room
upstairs and that "sometimes [A.W.] would sleep in the
bed with [the Defendant] or sometimes [the victim] would
sleep in the bed with [the Defendant]." The victim said
that when he was not sleeping in the same bed as the
Defendant, he slept in the bunk beds with M.W. and J.W. The
victim explained that both the bedrooms were on the upstairs
level of the Defendant's home.
victim recalled that the next "sexual contact" with
the Defendant occurred the night after the first incident. He
detailed the encounter as follows:
When I was coming out of the shower, I was walking into the
room that she slept in because I had some drawers there where
I kept my t-shirts and underwear and shorts and stuff. Kind
of like pajama clothes and a few shirts and everything.
And I had my towel on. And I was getting my pajamas out. And
she came into the room and proceeded to tell me that I was
going to be starting puberty soon.
And I was starting to put my t-shirt on and was going to - I
was like, okay, well, you know, that's, I guess, good
information to know. And before I could put my shorts on, she
took my towel off and started to handle my genitals and show
me that my testicles would get bigger and my penis would get
bigger. And that I would start to grow pubic hair around that
area. And started to stroke my penis to the point that I
reached an erection.
victim said that after he reached an erection, the Defendant
told him "that's what you have to do with a penis
before it's ready for sex." The victim testified
that the Defendant continued "to stroke" his penis,
and he told her "that [he] wasn't really comfortable
with that." The victim said that the Defendant told him
"that's part of growing up . . . . You get
comfortable with sexual contact."
victim stated that the next sexual episode occurred on his
"next visitation" with the Defendant, approximately
two weeks later. He stated,
That time I was coming out of the shower. And [the Defendant]
pretty much did the same thing but continued stroking me a
lot longer on my penis with an erection. And explaining that
that's a natural part of sex is the foreplay. And, you
know, to get your partner aroused and everything. And, you
know, that that's something you get more comfortable with
the more you do it.
. . ..
On that incident, I believe I - that was the first time that
she actually made me climax, which at the time was completely
new to me. I had never experienced that before. The only time
that I really was using my genitals was to go to the
bathroom. I had never experienced that.
And it felt kind of like an electric sensation shooting
through my penis. And it kind of really freaked me out
because I didn't know what it was. And she explained that
that's a climax. That's what happens. That is the
point of sex is to offer your partner pleasure and
And after that happened, you know, my erection went down. And
I put my clothes back on and went into the bathroom and tried
to look at myself to make sure that, you know, nothing was
wrong. Because I didn't know if I had done something
wrong and broken myself or something. And I kind of cleaned
victim stated that another incident with the Defendant did
not occur for the next "three or four months." The
victim described this encounter, recalling a time where he
took his clothes into the bathroom, so that after showering,
he could get dressed in the bathroom. The victim explained
that he "figured if [he] was already dressed by the time
[he] got out of the bathroom, then [he] wouldn't have to
go" into the Defendant's bedroom and "be naked
looking for [his] clothes." He said that while he was in
the shower, however, the Defendant came into the bathroom and
removed his clothes from the room. He explained,
So, when I came into the bedroom to get some more pajamas or
to find the ones that weren't in [the bathroom], [the
Defendant] proceeded to start to fondle my genitals again to
the point where I got an erection. And said that - at this
point, she was going to teach me about oral sex. And started
to put my penis in her mouth. And sucked and stroked me to
the point of climax.
victim said that he ejaculated onto the carpet and then went
back into the bathroom and cleaned himself. The State elected
to use these factual allegations to support count one.
victim described another episode in which the Defendant
"perform[ed] oral sex" on him in the
Defendant's bedroom. He said,
I started to climax again and kind of turned my head and was
kind of expecting what was going to happen. And I looked over
at - when I opened my eyes, I was looking towards the dresser
and saw this C.D. case of Neil Diamond's Greatest Hits.
And was kind of trying to pull it together and everything.
And went ahead and climaxed. And that was kind of that round
for that night.
prosecutor asked the victim if he remembered what type of
clothing the Defendant wore during these sexual encounters,
and he said that "she usually just wore like a long
t-shirt to bed." The State elected to use these factual
allegations to support count two.
State also asked the victim if he remembered any other times
that the Defendant performed oral sex on him. The victim
Yeah. The oral sex kind of became the norm after she did that
the first time. And during the course of that, she would take
my hand and tell me that this is part of foreplay to get your
partner excited for actual intercourse. And would take my
hand and put it into her vagina and have me push my fingers
in and out to satisfy whatever she was trying to get out of
And sometimes she would just make me do it on my own. And
sometimes she would hold my wrist and continue the
asked to describe the first incident in which this occurred,
the victim responded,
Well, at that point, [the Defendant] had already performed
oral sex on me. And then said that I was ready to learn some
more about sex. And had me get up on the bed with her. And
she was [lying] back with her t-shirt pulled up with her
lower body exposed.
And [the Defendant] took my wrist and started to rub her
vagina. And told me that you use these two fingers, the
middle two or the index and the middle finger, to put that
into the vagina and go back and forth to create friction.
Because [the Defendant] was saying that if you just stick it
in, it's kind of boring. It doesn't really do
anything. But if you go back and forth, that creates a lot
better sensation for your partner.
. . . .
And [the Defendant] had me do that for several minutes until
I assumed that she climaxed or at least felt that I had