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State v. Collins

Court of Criminal Appeals of Tennessee, Knoxville

November 27, 2017


          Assigned on Briefs July 25, 2017

         Appeal from the Criminal Court for Hawkins County No. CC-15-CR-77 John F. Dugger, Jr., Judge

         The Defendant, Daniel Stephen Collins, was convicted by a Hawkins County jury of the aggravated sexual battery of his eight-year-old daughter, a Class B felony, and was sentenced by the trial court to nine years at 100% in the Department of Correction. The Defendant raises three issues on appeal: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by not qualifying the victim as a competent witness and by allowing the prosecutor to lead her testimony; and (3) whether the presentment was constitutionally defective because it failed to charge the crime for which he was convicted. Following our review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          John D. Parker, Jr. (on appeal and at trial) and Steven C. Frazier (at trial), Kingsport, Tennessee, for the appellant, Daniel Stephen Collins.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Dan E. Armstrong, District Attorney General; and Ryan Blackwell and Cecil C. Mills, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

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


          ALAN E. GLENN, JUDGE


         On December 22, 2014, the victim, the eight-year-old biological daughter of the Defendant, reported to her mother that the Defendant had pulled her pants down and "tickled" her "private" earlier that day while the victim's mother was at work. The next day, the victim's mother took the victim to the hospital, where she was examined by a physician and interviewed by an investigator with the Department of Children's Services ("DCS"). The Hawkins County Grand Jury subsequently returned a presentment charging the Defendant with the aggravated sexual battery of the victim.

         At the Defendant's June 23, 2016 trial, the victim's mother testified that she and the Defendant had been married for ten years and had one child together, the victim, before their divorce became final in November 2015. On December 22, 2014, she and the Defendant were still married and lived together with the victim in a home in Church Hill. The victim, who was in the third grade at that time, was home for Christmas break, and the Defendant, who worked the 3:00 to 11:00 p.m. shift at Cooper Standard, kept the victim from the time the victim's mother left for her 8:30 a.m. to 5:00 p.m. job until he dropped her off at the home of her maternal grandparents between 2:00 and 2:30 p.m.

         The victim's mother testified that when she left work that day, she went directly to her uncle's funeral, where she met her parents and the victim. Afterwards, she took the victim home, and they changed into their pajamas and sat down to watch television together. Not long after they sat down, the victim told her that she needed to tell her something. When the victim's mother muted the television and asked the victim what she needed to tell her, the victim said that "earlier that day that [the Defendant] had touched her private parts." The victim then stood up and demonstrated to her mother how she had been trying to hold her pants up while the Defendant was trying to pull them down. The victim said that the Defendant finally got her pants down to her mid-thigh, and she showed her mother exactly where the Defendant had touched her.

         The victim's mother testified that she thanked the victim for telling her and told her that she would speak with the Defendant. She then watched a little more television with the victim, put the victim to bed, and waited for the Defendant to return home. As soon as he came into the bedroom after arriving home from work, she told him that she needed to talk to him and said that the victim had told her that he touched her "private parts." The Defendant "immediately got defensive and started hollering" that the victim was a liar. She told him to be quiet because the victim was in bed and after about five minutes he stopped talking, prepared for bed, and then got into bed. She eventually lay down in bed with him, but she did not sleep. After another thirty minutes to an hour, the Defendant got up and took a shower before returning to bed.

         The victim's mother testified that the Defendant got up once during the night to get a drink from the kitchen and that she followed him to make sure he did not go into the victim's bedroom. The next morning, she took the victim with her to work. That evening, she took the victim to the emergency room, where law enforcement and DCS were notified. She and the victim moved in with her parents that night, and they never again lived with the Defendant.

         On cross-examination, the victim's mother agreed that the victim referred to the Defendant as having "tickled" her "private parts."

         The ten-year-old victim testified that on the last day that she lived with the Defendant she was sitting on the couch watching television in her pajamas when the Defendant sat down beside her, pulled down her pajama pants to her ankles, pulled down her underwear, and tickled her "private" for about five minutes while her face was buried in the couch. She denied that she tickled the Defendant or that they were playing together at the time. After the Defendant stopped, she pulled up her pajama pants and underwear and got dressed in preparation for going to her grandmother's house.

         The victim testified that after she had changed into a tee shirt and shorts, she went to the Defendant's room to see if he was ready to leave. At that point, the Defendant "did it again, " pulling down her shorts and underwear and "tickl[ing]" her front "lower private." She asked him to stop, and he did after five minutes. The victim said that during the drive to her grandmother's house, the Defendant asked her not to tell her grandmother or her mother what had happened.

         The victim testified that she did not tell her grandmother, but that night while the Defendant was gone, she told her mother that the Defendant had tickled her "private." She also showed her mother what the Defendant had done by "act[ing] it out, but without pulling [her] pants down or anything." The next morning, she accompanied her mother to her mother's workplace. Before leaving the house, she went into the Defendant's bedroom, where the Defendant was lying in bed with his eyes closed, and told him that she was sorry. She did not know if he was awake during her apology. The victim explained that she said she was sorry because she "felt guilty." She testified that she later went to the hospital, where she related what had happened to a detective and the medical staff.

          At the request of the prosecutor, the victim circled on an anatomical drawing the portion of her body that the Defendant had touched. The drawing, on which the victim had ...

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