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State v. Johnson

Court of Criminal Appeals of Tennessee, Nashville

November 3, 2017


          Session Date: May 9, 2017

         Appeal from the Criminal Court for Davidson County No. 2014-C-2213 Cheryl A. Blackburn, Judge

         The Defendant, Zachary Michael Johnson, was indicted for five counts of rape by force or coercion, a Class B felony, all involving the same victim and occurring over a short period of time. The jury convicted him of the lesser offense of sexual battery, a Class E felony, in two counts of the indictment and acquitted him of the remaining three counts of the indictment. The trial court subsequently sentenced him as Range I, standard offender to concurrent terms of two years for each conviction, suspended to three years of supervised probation. On appeal, the Defendant challenges the sufficiency of the convicting evidence and argues that the trial court committed plain error by not instructing the jury on the lesser-included offense of assault by extremely offensive or provocative physical contact. Following our review, we conclude that the evidence is sufficient to sustain the convictions but that the trial court erred in not instructing the jury as to the lesser-included offense. Accordingly, we reverse the judgments of conviction and remand for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Remanded for a New Trial

          Richard Lewis Tennent and Jodie A. Bell (on appeal); and Bernard F. McEvoy and Jessica Van Dyke (at trial), Nashville, Tennessee, for the appellant, Zachary Michael Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Deputy Attorney General; Glenn R. Funk, District Attorney General; and Megan M. King and Leandra J. Varney, Assistant District Attorneys General, for the appellee, State of Tennessee.

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


          ALAN E. GLENN, JUDGE


         This case stems from sexual activity that occurred between the Defendant and the victim, S. K., [1] who had met online, on the evening of May 27-28, 2014, during their first and only in-person date. After drinking together at a bar, the Defendant and the victim went to the Defendant's condominium, where they drank more alcohol together before engaging in sexual contact that began with consensual kissing but escalated, according to the victim, into non-consensual acts involving the Defendant's forceful and violent digital and penile penetration of the victim's vagina and digital penetration of the victim's anus. The victim reported the Defendant's actions to the police that same night/early morning after she arrived home, and the Davidson County Grand Jury subsequently indicted him for five counts of rape involving force or coercion, with count one based on the Defendant's first instance of digital penetration of the victim's vagina, count two based on his first instance of digital penetration of the victim's anus, count three based on his penile penetration of the victim's vagina, count four based on his second instance of digital penetration of the victim's vagina, and count five based on his second instance of digital penetration of the victim's anus.

         At the Defendant's trial, the victim testified that she met the Defendant through the online dating site, "Tinder, " approximately a week to a week and a half before their May 27, 2014 in-person date. They first exchanged Facebook messages through the dating site, but after she became comfortable with him, she gave him her cell phone number, and they began texting and talking. She recalled that they had at least one long phone conversation before May 27, during which the Defendant tried to convince her to visit in his home. The victim testified that she refused because she could tell that he was intoxicated.

         The victim estimated that she and the Defendant exchanged approximately twenty text messages before they met in person. She was "almost positive" that none of their conversations were "sexual in nature." She acknowledged, however, that she sent him a topless photograph of herself as well as a video in which she was masturbating while topless. The Defendant also sent her a video, shot from the waist down, of himself masturbating. When asked why she had sent a topless video of herself to the Defendant if she did not intend to have sex with him, the victim explained that her long, unhappy marriage had just ended, and she was feeling "liberated" and "good about [herself]":

That's a hard question to answer, but I know that I had just gotten out of a really long like unhappy loveless marriage. And I think that the way that the technology of that like has changed so much, so I wasn't used to being able to do something like that. And I felt a little liberated in some weird way of being able to do that, and I felt good about myself. There was no pressure from his part to do it. I did it of my own accord. And I know that it alludes to sex, but that was not my intention. It was mainly just almost like for me.

         The victim testified that she and the Defendant arranged to meet on the night of May 27, 2014, after she completed her work shift at the Green Hills Mall. Their plan was to go out for drinks; she had no intention of going to his home, much less having sex with him. The victim said that she did not shave her legs or otherwise "groom" herself as she would have if she had any intention of being intimate with anyone.

         The victim testified that the Defendant, who was obviously drunk, showed up at her workplace twenty to thirty minutes before the 9:00 p.m. closing time. She sent him outside at 9:00 p.m. to wait for her while the store completed its closing process, and she joined him there at 9:15 or 9:20 p.m. The Defendant had not brought his car, which annoyed her because she did not want to be responsible for taking him home. The victim explained that, while she was bothered that the Defendant showed up drunk and did not bring his car, she had been looking forward to going out after work and therefore ignored her concerns.

         The victim testified that she and the Defendant walked to a bar across the street from the mall, where the Defendant had a beer and she had a beer and a shot of whiskey as they engaged in small talk in the upper level portion of the bar. After approximately thirty to forty-five minutes, the Defendant, who had been "acting weird towards the bartender, " rudely threw a credit card at the bartender to pay their bill. They then went downstairs, where the victim wanted to get another drink from the downstairs bar. However, the bartender with whom the Defendant had had the upstairs altercation pointed the Defendant out to the manager, and the manager asked them to leave.

         The victim recalled that, as they were walking toward her car, she was very upset with the Defendant and questioned why he had been so rude to the bartender, telling him that she frequently went to that bar after work. According to the victim, the Defendant "was kind of laughing it off in a very cocky way." She said the Defendant kept trying to convince her to go to his apartment, but she kept resisting because what she really wanted to do was to "go out somewhere else . . . to let loose and have some fun."

          The victim testified that the Defendant was very persuasive, and she finally relented and agreed to go with him to his Hillsboro Road condominium, where the Defendant said he had something for them to drink. She described herself as a "people pleaser, " a "trusting" person, and "a free flowing kind of hippy old soul." She said that she ultimately agreed to accompany the Defendant to his home to avoid conflict and to stop the Defendant's irritating repeated pleas for her to "come over, come over, come over." She stated that her intention was just to "go up there and to hang out."

         When they arrived at the Defendant's condominium complex, the Defendant again caused her concern by instructing her to park in one of the parking spots outside the condominium gates. She recalled that she questioned why and that the Defendant told her that the walk to his apartment would be closer if she parked where he directed. The victim said she felt an "instinct" that something was not right, so she pulled out of the area and drove away for a short distance. However, the Defendant again began pleading for her to come up for a drink, so she again relented, returned, and parked where he indicated.

         The victim testified that she began to relax after she had been in the Defendant's condominium for a few minutes. She recalled seeing empty, airplane-size "Fireball whiskey bottles" and a collection of antique cameras. She said the Defendant gave her a Fireball whiskey, which she sipped, and the Defendant had one as well. She remarked on how nice his condominium was, and they resumed an earlier conversation about the Defendant's interest in photography. At one point, the Defendant made a strange reference about buying bullets and indicated a box of bullets on the shelf. When she asked him why he bought bullets, he gave her a "solemn look, " as if he were sad and intended to hurt himself. The victim stated that she felt bad for the Defendant, and it was at that point that they began kissing.

         The victim testified that they were sitting together on the Defendant's couch when they began kissing. The kissing was "not aggressive, " and she was "okay" with it. The Defendant then picked her up, carried her to his bedroom, and laid her gently on his bed. The victim recalled that she had her legs wrapped around the Defendant and that she and the Defendant were still kissing as he carried her. She and the Defendant continued to kiss after he laid her on his bed. Both were still fully dressed, with the victim in a dress, tights, and possibly a cardigan. According to the victim, up to this point everything that had taken place was consensual.

         The victim testified that the Defendant then "started to put his hand over [her] tights on top of [her] vagina." She told him, "[N]o, I don't want -- no, stop" in a casual way, because she was not "panicked or anything" at that point. The Defendant, however, "kept on going towards [her] vagina over [her] tights." She again said "no, " in a sterner voice, but the Defendant did not stop. The victim stated that, although she could not now recall this detail, she reported to the police immediately afterwards that the Defendant said to her at this point, "Oh, we're going to f*** tonight."

         The victim testified that it was then that she became "really panicked." She recalled that she crossed her legs in an attempt to keep the Defendant's hand away. The Defendant, however, "went underneath [her] tights" and "stuck his finger up [her] vagina." She felt a "really bad pain around [her] wrist" because the Defendant was holding it so tightly. She also felt pain "down . . . in [her] vagina, " followed by a "weird pain" in her anus. The victim stated that she repeated "no" at least ten times, with her voice becoming progressively louder and moving into a scream. She also physically fought to get away from the Defendant, who was trying to remove her tights. The victim recalled that she fell to the floor on the other side of the bed and that her tights were off when she landed on the floor. She could not, however, remember exactly when the Defendant succeeded in removing them because she was in "such a panic, and . . . in shock" at what was happening. She did recall that when the Defendant saw after removing her tights that she had not shaved, he said, "[O]h, you're a dirty girl."

         The victim testified that the Defendant at some point had both of her wrists pinned because she later saw bruises in the shape of fingerprints on both wrists. She stated that the Defendant inserted what felt like three or four fingers into her vagina, to a depth of at least three or four inches. She was unsure if he inserted just one, or more than one, finger into her anus because she had never experienced that before and, therefore, had nothing with which to compare the feeling. Both penetrations hurt, and neither was consensual.

         The victim testified that after she fell off the bed, the Defendant walked out of the room. She said she got up from the floor and, in a state of shock, picked up her tights and put them back on. As she was doing so, she heard a rustle of keys from the other room where she had placed her cell phone, wallet, and car keys. When she went into that room, she saw that her cell phone was gone. She repeatedly asked the Defendant where it was, and he continually said that he did not know and that she was crazy. The victim stated that she was panicked because she did know how to get back to her car and felt trapped without her cell phone for communication. She said she looked in several of the Defendant's drawers for her phone, all while pleading with the Defendant to return it.

         The victim testified that she finally offered to give the Defendant oral sex in exchange for the return of her phone. She explained that she was feeling "desperate and scared and almost panicked and lost, " did not know what else to do, and feared that the Defendant would "hurt [her] further" if she did not perform oral sex "because he seemed like that's what he wanted." She said when she asked the ...

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