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State v. Smartt

Court of Criminal Appeals of Tennessee, Nashville

November 14, 2017


          Session February 15, 2017

         Appeal from the Circuit Court for Warren County No. F-14190 Larry B. Stanley, Jr., Judge

         Defendant, John David Smartt, was indicted for five counts of rape of a child, (Counts 1, 2, 3, 6, and 9); one count of rape, (Count 12); three counts of especially aggravated sexual exploitation of a child, (Counts 4, 7, and 10); and three counts of aggravated sexual exploitation of a child (Counts 5, 8, and 11). Following a second jury trial, after the first trial ended in a mistrial, Defendant was convicted as charged on all twelve counts. The trial court imposed an effective sentence of 153 years' incarceration. In this appeal as of right, Defendant contends that: 1) the trial court erred by allowing testimony regarding a recorded phone call by the victim to Defendant; 2) the trial court erred by allowing into evidence Defendant's wife's journal; 3) the evidence was insufficient to support Defendant's convictions; 4) this court should overturn prior case law, so that the testimony of a victim regarding the content of sexually explicit material must be corroborated; and 5) his sentence is excessive. Having reviewed the entire record and the arguments of the parties, we affirm the judgments of the trial court.

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

          Joshua T. Crain, Murfreesboro, Tennessee, for the appellant, John David Smartt.

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

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.




         The victim in this case, whom we will identify by her initials, J.S., was 20 years old at the time of trial. Defendant is her father. She testified that Defendant had not worked since 2001, due to his degenerative disc disease and osteoarthritis. J.S.'s mother "always had a job" and worked as a certified nursing assistant. J.S. testified that her mother typically left the house at 5:30 a.m. to go to work and left work to come home at 4:30 p.m. J.S. testified that her mother also had second and third jobs and worked "late into the night." J.S. and her brothers were left in the care of Defendant.

         J.S. testified that on an occasion when she was four years old, she was alone with Defendant in the living room, and Defendant turned on a pornographic movie. She described the movie and testified, "it went to a shot of a woman giving a man a blow job and [Defendant] kind of explained to me, you know, that she was enjoying it, he was enjoying it." She testified that Defendant then took her into his bedroom, and "it was the first time that I remember he told me to give him a blow job and when I wasn't understanding what I was supposed to be doing he just kept saying, suck it like a straw . . . ." J.S. testified that she "couldn't do what he wanted [her] to do and he stopped" and told her not to tell anyone about the incident. She testified that Defendant "put his penis in [her] mouth and wanted [her] to suck on it."

J.S. described another occasion when Defendant showed her a video:
There was a home video of my mom that he showed to me and told me, you know, that she liked what she was doing and it like started out with her playing with herself with a toy and the camera was up close and you could hear him talking and then later on in the video it backs up and she is on the bed and then he gets onto the bed with her and they have sex and he showed it to me. I only remember seeing it one time but it was when we lived in Morrison.

         J.S. testified that she did not remember how old she was at the time of the incident, but she estimated that she was eight or nine years old. She described another incident when Defendant showed her a sexually explicit video:

On one other occasion that he showed me a video on the computer. It was like of a young girl and a man where she was playing to be a young girl. In the video she was playing like his daughter and he was getting on to her because her room was dirty and told her that he needed to punish her and like she runs upstairs and then the video starts out with her giving him a blow job and then proceeds to go on and they have sex.
. . . .
She looked young. I mean I guess she was an adult playing like a teenager but she looked young.

         J.S. testified that Defendant told her, "that's what happens to bad girls." She testified that Defendant asked her to perform oral sex "basically . . . on a daily basis. It happened so frequently that I knew when he cracked the door open and poked his head in and said, [J.S.], come here, I knew what was going to happen."

She described an incident when she was in kindergarten:
I was in kindergarten. We were living in a house on Bybee Drive here in McMinnville and he brought me into his bedroom, my parents' bedroom, and he had me lay on the bed and try like while I was laying down trying to do it upside down while he would stand up on the side of the bed and try to give him a blow job and he would lean over me and I would be laying down and he had me do that until he ejaculated and when he came on my body he asked me what it felt like and I didn't know. The only thing I associated it with was like ketchup so I told him that it felt like hot ketchup.

         J.S. testified that she did not know that Defendant's behavior was wrong at the time. She testified that Defendant told her, "that's what daddies do to show their little girls that they love them . . . so I thought that if I did that that he would be nice to me."

         J.S. testified about an incident that occurred in the family's minivan when she was in kindergarten. She testified that Defendant picked her up from school, and stopped the car and "had [her] come up to the front of the van and he pulled out his penis and he told [her] to suck it and [they] sat at the stop sign and [she] gave him a blow job." She testified that "[i]t was the first and only time that that had ever happened."

         J.S. also testified about an incident when Defendant took photographs of her. She testified that Defendant picked her up from basketball camp and took her home. She testified,

[H]e brought me to my parents' bedroom and it was just me and him in there. My mom had just gotten him a digital camera that he had been wanting for a long time and he got a white towel and laid it over the foot of their bed and told me to get undressed except for the shirt and he wanted me to get on my knees so that he could take pictures from the angle looking straight on to my vagina from that angle and he would have me hold my hair up and look up and my face was not in the pictures. He took a bunch of pictures and when he was finished he was like, look, and after I got dressed he showed me - he pulled them up on the screen and showed me the pictures that he had just taken.

J.S. was embarrassed and concerned that Defendant would show the photos to other people. She remembered that the incident occurred when she was in fourth or fifth grade because that's when she attended basketball camp.

         J.S. testified that when she was in fifth grade, she was taken out of class one day and asked questions about her family by a lady she did not know. The lady asked J.S. if her father had ever harshly disciplined her, whether she had ever seen her parents or siblings without their clothing, and whether she had ever seen a movie that showed people not wearing clothes. J.S. denied that any of those things had happened. She testified, "I didn't know who she was or why she was asking me those questions and my parents had always said, 'what happens under this roof stays under this roof. . . .'" She testified that Defendant imposed "ridiculously horrible punishments for things that shouldn't have been an issue and so I was afraid of telling . . . ."

         Regarding Count 6 of the indictment, J.S. testified that when she was 12 years old, she began menstruating. Defendant told her, "[w]hen you start your period you will be a woman and we can have sex and we can make a baby and he would ask me if I had his baby if he would be the baby's dad or the baby's grandpa . . . ." J.S. testified that shortly after she started having periods,

[Defendant] took me into his room he took off all my clothes and he was wearing his pants but he had pulled his penis out of the zipper hole and he pulled me up to the very edge of the bed and tried to wrap my legs around his waist and was trying to like thrust into me but I kept squeezing my legs so that my body would move as he tried to push forward that I would just slide up the bed. I didn't want that to happen and then he started trying to grab my shoulder and just pushing me into him or himself into me just very rough and like he was rubbing himself up and down my vagina with his penis and trying to spit on it and he was pushing in and he - I could feel that he was like trying to push into my hole and then I hollered out that it had hurt. He told me to go to the bathroom and wash myself out.

         Regarding Counts 7 and 8 of the indictment, J.S. testified that Defendant showed her photographs on his digital camera of her mother in their bedroom. J.S. described the photographs Defendant showed her:

Some of them like he was holding her vagina lips open or had his finger inside of her or she was doing the same thing, holding herself open and like he would - he showed me there was a picture of her vagina and there was like white, creamy stuff and he asked me if I knew what that was and then explained to me that he had made her have an orgasm.

         After Defendant showed J.S. the photographs, he told her take off her clothes "and pose the same way that [her mother] had." She testified that Defendant "took the exact same pictures of [her] with the exclusion of [her] finger inside of [her] or his finger inside of [her] vagina and the one where she had cream on her." Defendant then showed J.S. the photographs he took of her. J.S. was around 13 years old at the time of the incident. She testified that, unlike when she was younger, she understood that Defendant's actions were wrong. She testified, "I wanted him to be nice to me. I didn't want him to hurt me."

         Regarding Count 9 of the indictment, J.S. testified that her brothers were all spending the night at her grandparents' houses, and she was alone with Defendant. She was nine or ten years old at the time of the incident. She testified,

It was an awful, awful day because from the moment that I woke up until soon before my mom came home I had to spend the entire day naked. [Defendant] fixed a breakfast for us and he was completely naked wanting us to eat breakfast but I just felt so uncomfortable that I couldn't eat and we were in the dining room and he was telling me how sexy that I was and like he was pulling my leg up on to his side and I remember looking over in the reflection of the fish tank and I could see myself and he was telling me that I'm sexy and I remember just thinking I don't look anything like my mom. I wasn't developed in the same way. I was just a little girl and I was confused really, mainly just confused and disgusted and throughout the day it was just he would - he would put his mouth on my vagina and the very end of the day what finally led him to let me put my clothes back on is he had me give him a blow job and he like ejaculated in my mouth but I wouldn't swallow it and I ran to the bathroom and spit it out and he got mad at me and was telling me that there were thousands of girls in this world that would kill to be in my position and that I should have swallowed it and be grateful for what I had and he let me put my clothes back on and hooked up the Playstation and just went out in the living room and acted like nothing ever happened when my mom came home.

         Referring to Counts 10 and 11 of the indictment, J.S. testified that on one occasion, when she was 11 or 12 years old, Defendant made a video with his cell phone of her performing oral sex on him. She testified,

[H]e pulled out his penis and he told me to suck it and he had his phone out taking a video of it and then afterwards he showed me the video of it and that was the last time I ever saw it and I didn't even see the whole thing. He just showed me a little bit of it.

         She testified, "I saw my face and I was sucking his penis."

         Referring to Count 12 of the indictment, J.S. testified that when she was a freshman in high school, Defendant again had vaginal intercourse with her:

It was very similar to the first time as far as the place and the side of the bed and exactly what he was doing. He was rubbing his penis up and down my vagina and he was trying to push himself into me really hard and I kept trying to avoid it by stiffening up and moving with him but this time he actually - I felt him push himself inside my vagina and it was horrible and painful and I screamed out that it was painful and [ ] he stopped instantly and was telling me that he was sorry and that he didn't mean to hurt me but he had.

         J.S. testified that the first time she told anyone about Defendant's sexual abuse, she was 11 or 12 years old. She told her older brother. She testified, "I told him everything. I mean we sat and talked for a while and he was upset and crying and he told me that - like everything that with what he's been through and what I've been through, we need to tell Mom." J.S. and her brother devised a plan that she would scream and run away from Defendant the next time he attempted to abuse her, and they would call her brother's friend to drive them to their mother's workplace. J.S. testified, "a couple of days later [Defendant] pulled me downstairs and he tried to force my hand down his pants and when I yanked away I yelled no and I ran up as fast as I could. We wedged the door. He didn't chase me . . . but we wedged the door anyway . . . ." She testified that they did not have time to call her brother's friend and drive to her mother's workplace before her mother got off work, "[s]o instead we just took the chair away from the door and waited for my mom to come home."

         That evening, J.S.'s brother told their mother that Defendant had been molesting her since she was four years old. J.S. testified that her mother left the room and came back into the room with Defendant. J.S.'s mother told her, "you're ...

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