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State v. Montgomery

Court of Criminal Appeals of Tennessee, Nashville

September 1, 2017


          Assigned on Briefs February 23, 2017 at Knoxville

         Appeal from the Circuit Court for Rutherford County No. F-69052 Royce Taylor, Judge

         The 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.

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

          Gerald 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.

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




         The Rutherford County Grand Jury indicted the Defendant for six counts of rape of a child, involving the victim, A.W.[1] See Tenn. Code Ann. § 39-13-522(a) (2003). A jury trial began on March 10, 2015.

         Jury Trial

         At the 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.

         As an 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 their bodies.

         When asked what impact he believed his mother's use of corporal punishment had on his personal behavior, he responded,

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.

         The 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."

         After 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.

         The 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."

         The 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 know."

         The 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.

         The 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."

         Regarding 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.

         The 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.

         The 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."

         The 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 everything.
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 myself up[.]

         The 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.

         The 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.

         The 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.

         The 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.

         The State also asked the victim if he remembered any other times that the Defendant performed oral sex on him. The victim said,

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 that.
And sometimes she would just make me do it on my own. And sometimes she would hold my wrist and continue the penetration herself.

         When 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 apparently ...

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