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State v. Black

Court of Criminal Appeals of Tennessee, Jackson

September 21, 2017

STATE OF TENNESSEE
v.
DAVID BLACK

          Assigned on Briefs August 1, 2017

         Appeal from the Criminal Court for Shelby County No. 15-00541 Paula Skahan, Judge

         The defendant, David Black, appeals his Shelby County Criminal Court jury convictions of attempted rape of a child and aggravated sexual battery, claiming that the trial court erred by improperly admitting certain evidence and that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

          Harry E. Sayle III (on appeal) and Nick Cloud and Paul Pera (at trial), Assistant District Public Defenders, for the appellant, David Black.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         In February 2015, the Shelby County Grand Jury charged the defendant with one count each of attempted rape of a child and aggravated sexual battery. The trial court conducted a jury trial in April 2016.

         The State's proof at trial showed that the victim, D.S., [1] was 15 years old at the time of trial. In 2008, when the victim was eight years old, she and her mother began living with her aunt, A.Y.[2], and A.Y.'s husband, the defendant. Shortly thereafter, the victim's mother moved out of the residence, and the victim continued to reside with A.Y. and the defendant. In 2010, A.Y. and the defendant divorced, but the victim would often accompany her younger brother and her male cousins, C.Y. and D.B., to visit the defendant at his residence on certain weekends.

         C.Y., who was also 15 years old at the time of trial, testified that the defendant treated the victim differently than the other children and that the defendant would spend more time with her:

[The defendant will] let [the victim] do things like drive his car and he'll let me drive for like a few minutes and then he'll let her drive for the rest of the time that we're there until we go home.
And then as far as food-wise, as if we'll have cookies and ice cream, I wouldn't have the cookies but he'll give her more of the food than he'll give me and [D.B.] because he'll say we either had enough or she didn't - we didn't have enough for her, so he'll give her the rest of the food.

         C.Y. also recalled that the defendant would separate the victim from the other children on occasion. According to C.Y., the defendant would tell the boys to go outside to play, and he would make the victim stay inside "to clean up or help him with something or cook." When C.Y. and the other boys would attempt to reenter the residence while the victim was alone with the defendant, the defendant would permit them to get a drink of water but then make them ...


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