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State v. Mabe

Court of Criminal Appeals of Tennessee, Nashville

October 18, 2017

STATE OF TENNESSEE
v.
JAMES WILLIAM MABE

          Assigned on Briefs May 10, 2017

         Appeal from the Circuit Court for Warren County No. 15-CR-521 Larry B. Stanley, Jr., Judge

         The Defendant, James William Mabe, was found guilty by a Warren County Circuit Court jury of three counts of attempted rape of a child, a Class B felony, and three counts of aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-13-522 (2014) (child rape); 39-12-101 (2014) (attempt); 39-13-504 (2014) (aggravated sexual battery). The trial court merged the attempted child rape convictions with the aggravated sexual battery convictions and imposed eleven-year sentences for each conviction. The court ordered partial consecutive sentences, for an effective twenty-two-year sentence at 100% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by failing to require the State to make an election of the offenses, (3) the trial court erred by failing to instruct the jury on the lesser included offenses of child rape; and (4) his sentence is excessive. We affirm the judgments of the trial court.

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

          Brandon J. Cox (on appeal), Smithville, Tennessee, and Daniel Barnes (at trial), Sparta, Tennessee, for the appellant, James William Mabe.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lisa S. Zavogiannis, District Attorney General; and Tom Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         This case involves allegations of inappropriate sexual contact between the victim and the Defendant, the victim's then-stepfather. At the trial, the victim's father, a county correction officer, testified that the victim was eight years old at the time of the March 2016 trial and that he and the victim's mother had two additional children. He said that he and the victim's mother married in 1989 and divorced in 2011. He said that he remarried in 2011 and that his current wife had children from a previous marriage. He said the victim's mother married the Defendant sometime after the 2011 divorce. The victim's father said that during the divorce proceedings, he and the victim's mother agreed to share custody of the victim and that the arrangement worked well for everyone. He said that, additionally, he always picked up the victim from her mother's home when the victim's mother needed and that if he were working, the victim's stepmother, picked up and dropped off the victim.

         The victim's father testified that on January 8, 2015, the victim w as scheduled to go to her mother's home for a few hours and that the victim's stepmother drove the victim to the agreed-upon location. He said he was scheduled to pick up the victim after he left work. He said that after the victim's stepmother dropped off the victim, the victim's stepmother called him at work. He said that she asked him to go to the investigator's office and that she was already there with an investigator when he arrived. He said that she and the investigator told him that the victim had disclosed earlier that the Defendant had "molested or raped" the victim. He said that he took the victim to the sheriff's office, the Child Advocacy Center (CAC), and Our Kids Center.

         The victim's father testified that he discussed the allegations with the victim's mother and that the victim's mother did not believe the victim. He said that as a result, he was concerned the victim would continue to have contact with the Defendant, and he obtained an order of protection prohibiting the victim's mother and the Defendant from having contact with the victim. He said that the victim's mother was prohibited from having contact with the victim initially but that at the time of the trial, the victim's mother was allowed supervised visitation with the victim. He said the supervised visits were ordered at the request of the Department of Children's Services (DCS).

         The victim's father testified that the victim had changed since she disclosed the allegations. He said that the victim began knocking on his bedroom door at night, crying and scared. He said that this initially occurred five or six nights weekly and lasted for a long period of time. He said the victim said she was scared of the Defendant and feared what might happen if she returned to her mother's home.

         On cross-examination, the victim's father testified that although the custody arrangement was for equally shared custody, any deviation from the parenting plan involved the victim's coming to his home. He said that the victim's mother mostly did not work but that she had worked between late 2013 and the end of 2014. He said the victim disclosed the allegations on January 8, 2015, and that the victim immediately went to the CAC and to Our Kids Center the following week. He said that the victim never had difficulty sleeping before her disclosure but that she had difficulty afterward.

         The victim's father testified about a previous incident in which Terry Steele and the victim were "playing, " that Mr. Steele pinched the victim's buttocks, that the victim reported feeling uncomfortable due to the pinch, and that the victim's father discussed it with Mr. Steele. The victim's father said that Mr. Steele apologized. The victim's father did not know about the victim's accusing the boys from Mr. Steele's neighborhood of "pinning her down on the bed." The victim's father agreed that the victim accused a boy at her school of pinching or slapping her buttocks, that the victim's father talked to the victim's teacher, that the boy was "notorious for doing that" to several children, and that the victim's father told the victim to "slap" the boy and report it to her teacher in the future. He said the incident resolved itself.

         The victim's stepmother testified that she worked as a hospice nurse and as a part-time jail nurse. She said that she and the victim had a good relationship and that they had never had a "big blow-up, " although the victim's stepmother did not always agree with the victim's decisions. The victim's stepmother said that on January 8, 2015, around 4:00 or 5:00 p.m., she drove the victim to meet the victim's mother in order for the victim to spend a few hours with the victim's mother before the victim's mother went to work that evening. The victim's stepmother recalled that her son went with them and that her son was the first person to mention someone had inappropriately touched the victim. The victim's stepmother said that the victim's mother was not at the meeting location and that while they waited, the victim saw a "semi truck, " which the victim thought belonged to the Defendant. The victim's stepmother assured the victim that if the Defendant were with the victim's mother, the victim did not have to go with the victim's mother because of an order of protection the victim's mother obtained against the Defendant after a domestic incident unrelated to this case. The victim's stepmother said that her son stated that the victim had told him that the Defendant had placed the Defendant's hands down the victim's pants while she was napping and "touched" the victim's "privates." The victim's stepmother said that the victim shook her head at her stepbrother as though she did not want her stepbrother to say anything about the incident. The victim's stepmother said that she asked the victim if those events occurred and that the victim shook her head indicating yes. The victim's stepmother recalled that the victim was nervous and embarrassed, that the victim's stepmother asked if it felt as though anything "went inside of her body, " and that the victim said she felt a finger and burning. The victim's stepmother said she asked the victim how many times this occurred, that the victim would not answer the question directly, and that the victim said this occurred when the victim lived at Mr. Steele's home and at the home across from the "cattle barn or the cows." The victim's stepmother said that the victim's mother arrived before the victim could provide any additional information. The victim's stepmother said that she encouraged the victim not to mention to the victim's mother what they had discussed until the victim's stepmother could talk to the victim's father because the victim's mother feared what might happen. She said she felt powerless to prevent the victim from going with the victim's mother because the Defendant and the victim's father were not there.

         The victim's stepmother testified that after the victim left with the victim's mother, she contacted Warren County Sheriff's Investigator Travis Thaxton. She said that at Investigator Thaxton's request, she met him at the sheriff's office, that she called the victim's father and requested he come to the investigator's office, and that she told the victim's father what the victim reported earlier that day. She said that a city police officer came to the sheriff's office and completed a police report and that afterward, the victim's father drove to pick up the victim. The victim's stepmother said that the officer scheduled an appointment at the CAC for the next day.

         The victim's stepmother testified that on January 9, 2015, the victim underwent a forensic interview at the CAC and that the victim was examined physically at Our Kids Center approximately two weeks later. The victim's stepmother said that she provided the victim's medical history to the nurse practitioner who examined the victim and that about four years earlier, the victim experienced a thirty-minute seizure at home, received treatment from a neurologist, had not experienced any additional seizures, and no longer took medication. T he victim's stepmother said that the victim did not have memory problems and that the seizure occurred when the victim was in preschool. Based upon the victim's disclosure, the victim's stepmother also reported to the nurse practitioner that digital penetration occurred on more than one occasion and that the victim was shown pornography.

         The victim's stepmother testified that she was present during the victim's examination at Our Kids Center and that the victim repeated the same allegations the victim made on January 8, 2015. The victim's stepmother said that the victim had complained of painful urination since the victim's stepmother had known the victim and that the issue was ongoing. She said that she treated the victim's complaint with baking soda baths and ointment and that the problem resolved itself until the victim presented again with the same symptoms. The victim's stepmother said that at the time of the trial, the victim complained less frequently.

         On cross-examination, the victim's stepmother testified that the victim had not taken seizure medication for approximately two years. She said that when the victim saw the semi-truck on January 8, the victim became scared. The victim's stepmother said that the incidents alleged by the victim occurred in the summer, which was months before the victim's disclosure. The victim's stepmother denied that she told the victim not to report the allegation to the victim's mother. The victim's stepmother said that she told the victim not to tell her mother that night because the victim said she had told her mother previously, but her mother did not do anything about the allegation. The victim's stepmother stated that the criminal charges related to the order of protection the victim's mother obtained against the Defendant were dropped soon after the order was obtained.

         The victim testified that she was age eight and that she was home schooled, although she went to school the previous year. She said that before the incidents occurred, her mother lived at Mr. Steele's home for a while and that the Defendant came there sometimes. She said that at one point, the victim's mother lived with the Defendant "close to some cows."

         The victim testified that on the day her stepmother drove her to meet her mother, she saw a truck she thought belonged to the Defendant because he was a truck driver. She said she did not expect the Defendant to be there. She said that while they waited for her mother, her stepbrother told her stepmother that the Defendant had "touched" her, that she told her stepbrother the Defendant had touched her, and that she did not remember what she told her stepmother while they were inside the car. The victim did not think she went with her mother that day and did not recall going to the sheriff's office. She recalled going to the CAC and said she went to the CAC for them to "help [her] with the problem . . . [w]hat [the Defendant] did." She remembered the interview at the CAC and said the woman showed her the cameras and the microphone inside the interview room. She said that she watched the video recording of the interview and that nothing was missing from or changed in the recording. She said, though, that after watching the recording, she told the prosecutor that she may have misunderstood the woman who asked questions.

         The victim testified that during the interview, she discussed living at Mr. Steele's home. She said that when her mother and the Defendant lived at Mr. Steele's home, she, the Defendant's daughter from a previous relationship, her mother, and the Defendant lay in a bed together at night and that the Defendant "touched" her. She did not recall who she lay beside but said the Defendant touched her "[f]ront and back." The victim was shown a drawing of a girl, displaying the front and back of the body, and was asked to circle the areas the Defendant touched. The victim circled the genital and buttock areas. She said that she was unsure with what the Defendant touched her, that she felt something "inside" her "front, " and that she thought it had to be the Defendant's hand. The victim said she told her mother and her stepmother about this incident. The victim said she told her mother about this incident when she and her mother were "putting up cans" in the refrigerator at Mr. Steele's home. The victim said she told her mother that the Defendant "touched" her, although not where the Defendant touched her.

         The victim testified that she did not recall any additional incidents occurring at Mr. Steele's home but said that an incident occurred at a place near "where there were cows, " which she remembered because she and her mother lived next to the cows. She said that at the home beside the cows, she, the Defendant's daughter, and the Defendant lay in the Defendant and the victim's mother's bed to take a nap when the victim's mother was at work. The victim recalled wearing underwear and a shirt. She s aid that she awoke from her nap when the Defendant "touched" her and that the Defendant's hand was inside the "front" of her "pants." She said she felt the Defendant's hand inside her. When asked if the Defendant touched her buttocks during this second incident, she said, "I think both of the times it was the front." She thought the Defendant touched her buttocks but was unsure.

         The victim testified that another incident occurred in the living room at the home beside the cows. She said that she and the Defendant were sitting in a rocking and reclining chair with a purple blanket over them, that they were watching Scooby-Doo, and that she thought the Defendant's brothers were there. She said that the Defendant "touched" her when they were covered by the blanket. She said that the Defendant's hand went "in her pants" and on her "front" private area. She denied the Defendant touched her buttocks and said she did not think anything went inside of her. The victim did not recall any incidents involving Mr. Steele or a boy at her school.

         On cross-examination, the victim testified that she suffered from nightmares that began a long time ago. She recalled having a seizure but denied she had difficulty sleeping because of it. She said that when her mother lived at Mr. Steele's home, the victim, her mother, the Defendant, and the Defendant's daughter slept in a large bed and that Mr. Steele slept in another bedroom. T he victim said that sometimes she slept in a Hello Kitty bed. She recalled the Defendant's being sick and sleeping with a machine that covered a portion of his face. Relative to the incident the victim described at Mr. Steele's home, she thought the Defendant was awake when he touched her.

         The victim testified that when her mother lived at the home near the cows, she and the Defendant's daughter slept in the same bed at night but that she slept in her mother's bed at naptime. She said that when her mother lived near the cows, the Defendant and "Mr. Earl" cared for her when her mother was at work. Relative to the incident in which she watched Scooby-Doo, she thought "a few" of the Defendant's brothers were there but was unsure of the number. She said that she was familiar with the Defendant's truck because he took her to work with him once when her mother lived at Mr. Steele's home.

         On redirect examination, the victim testified that the Defendant showed her a cell phone on the same day of the incident that occurred in bed at the home near the cows. She said that the Defendant showed her a video recording of a man with "his hand under a [naked] girl's bottom and she got up and walked away." She said that the Defendant asked her to tell him what occurred in the recording. On recross-examination, she stated that she thought the cell phone belonged to her mother and was blue. She agreed that every time the Defendant touched her, she was asleep or about to go to sleep.

         M'Lee Hudgins, a forensic interviewer with the CAC, testified that she conducted the victim's interviews on January 9, 2015, and February 5, 2015. Video recordings of the interviews were played for the jury.

         In the January 9 recording, the victim stated that her stepmother brought her to the CAC to talk about the Defendant's touching her "privates." The victim said the Defendant touched her on two occasions, once at her mother's home and once at Mr. Steele's home. She explained that she "felt a finger . . . inside" her "front one." The victim was shown a drawing and circled the vaginal area when asked to identify her front one. She said that the Defendant "rubbed" her "back one, " which she identified as her buttocks, that he touched her under her clothes with his hands, that she did not feel anything enter her buttocks, and that this occurred when her mother was at work. She said that a couple days later, she told her brother about the incident, that he mentioned it to the victim's stepmother in the car, and that the victim told her stepmother about the incident. The victim said the incident occurred when she lay in bed with the Defendant and the Defendant's daughter at naptime.

         The victim explained that one incident occurred when she, the Defendant, and the Defendant's daughter were in the Defendant and the victim mother's bed. The victim said that she had taken naps with the Defendant previously but that the Defendant had not touched her. The victim said that the Defendant began touching her when they were taking a nap and that "he did the front first." The victim said that it felt as though the Defendant's finger was inside her, that it was "going around and around, " and that it felt strange. She said that after the touching, the Defendant showed her a "gross video" on his cell phone, that the video showed a naked girl sitting on a sofa with a man touching her "back private part, " and that the Defendant asked, "Do you think she did not feel good?" The victim said that she responded, "Whatever, " that she had to say something to the Defendant, and that the Defendant "would have got on to her" if she did not respond. She said the Defendant's daughter was asleep in the bed when the Defendant showed her the video. The victim thought the Defendant showed her a second video but could not recall its contents. She said that the Defendant did not say anything when he touched her. She said that she removed her pants during naptime but wore underwear and a long-sleeve shirt and that the Defendant removed his black short-sleeve shirt with blue letters but wore shorts or underwear. She denied touching the Defendant's body.

         The victim stated that another incident occurred when the victim's mother and the Defendant lived at Mr. Steele's home, which she said was before the incident at the home near the cows. She said that the Defendant touched her front part when she lay in bed with her mother and the Defendant. T he victim said the Defendant's daughter was either sleeping with them or with Mr. Steele. She said that her stomach hurt, that her mother said she would rub the victim's stomach, that the Defendant began rubbing the victim's stomach instead, and that the victim did not trust the Defendant. The victim said that the Defendant touched the "front" inside her clothes and that the Defendant "went way down." She said that she "did not hardly remember" whether she felt the Defendant's finger but said later that "there was a finger . . . that went inside and did something." She said it felt as though the finger went "around and around." She said that she thought she was age six at the time of this incident and that she was age seven at the time of the interview.

         The victim stated that the Defendant's touching her did not feel right but that the Defendant did not say anything about the incidents. She said she told her mother about the Defendant's touching her privates but that her mother acted as though she did not care.

         The victim stated that the first incident was at Mr. Steele's home, that "squirrels jumped over" his home, and that they lived at Mr. Steele's home during the summer. She said that the second incident occurred at another home when it was summer.

         During the February 5 forensic interview, the victim stated that "something else came up" but that she could not remember. She said that other than the two incidents she discussed in the previous interview, she almost fell asleep in a living room chair while watching Scooby-Doo, that the Defendant touched her "front private, " that she could not remember if he touched her under her clothes, that she could not remember if anything entered her body, and that she did not think the Defendant said anything during the incident. She described the chair as a rocking chair and said that she and the Defendant were reclined in it. She said that she and the Defendant lay on their backs and that the Defendant did not want her to touch his body. She thought her mother was at work but was unsure. She said that the Defendant wore a black shirt with "blue stuff" on it and that she wore a Barbie shirt and pants. She said she and the Defendant were under a purple blanket during the incident.

         On cross-examination, Ms. Hudgins testified that she was unaware of any additional allegations of abuse by the victim. Ms. Hudgins had no knowledge about a boy at school pinching the victim's buttocks and said the victim mentioned during the interview that Mr. Steele tickled her. M s. Hudgins said that determining whether a child had been coached was a task for experts but that her training included asking enough questions in order for "team members" to determine whether a child had been coached. On redirect examination, Ms. Hudgins stated that disclosures of sexual abuse occurred in stages. She said that when a child had suffered abuse more than once, it sometimes became difficult for the child to process the incidents and that the child might disclose various incidents at different times. On recross-examination, she agreed that another explanation for varying stories was that a child fabricated the allegations.

         The victim's mother testified that the victim was born on September 19, 2007, and that she and the victim's father shared custody of their children when they divorced. She said that she and the Defendant married in February 2011 and that they divorced in July 2015. R elative to the incident the victim described at Mr. Steele's home, the victim's mother said that Mr. Steele was the victim's great uncle and that she and the Defendant lived with Mr. Steele twice during their marriage. The victim's mother recalled living at Mr. Steele's home in June 2011 and between November 2013 and June 2014. She said that between November 2013 and June 2014, she, the Defendant, the victim, and the Defendant's daughter lived at Mr. Steele's ...


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