11, 2017 Session
from the Criminal Court for Shelby County No. 15-04366 James
M. Lammey, Judge
Shelby County Criminal Court Jury convicted the Appellant,
Antonio Durham, of attempted rape, a Class C felony, and
sexual battery, a Class E felony. After a sentencing hearing,
the trial court merged the convictions and sentenced the
Appellant to ten years in confinement. On appeal, the
Appellant contends that the evidence is insufficient to
support the convictions and that the trial court erred by
failing to instruct the jury on Class B misdemeanor assault
as a lesser-included offense of attempted rape. The State
claims that the trial court erred by merging the convictions.
Based upon the oral arguments, the record, and the
parties' briefs, we conclude that the trial court
committed plain error by merging the Appellant's
convictions and remand the case to the trial court for
R. App. P. 3 Appeal as of Right Judgment of the Criminal
Court Affirmed in Part, Reversed in Part, Case Remanded
N. Brayton and Samuel Christian, Memphis, Tennessee, for the
appellant, Antonio Durham.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Tyler Parks and Gavin
Smith, Assistant District Attorneys General, for the
appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
D. Kelly Thomas, Jr., and Camille R. McMullen JJ., joined.
MCGEE OGLE, JUDGE.
trial, the then sixteen-year-old victim testified that on May
9, 2015, she was fifteen years old and went to "a
Mother's Day party and an anniversary party" at her
"uncle Danny's" house. Fifty to one hundred
people attended the party. About midnight, the victim was
sitting on the bed in her uncle's bedroom "in the
back" of the house. She was watching television and
using her cellular telephone. The Appellant, who was not
related to the victim, came into the room. He was wearing a
white shirt and blue jeans. The victim said he sat on the
bed, stared at her, and talked to her. The victim was wearing
earphones but could hear him talking. She stated, "[H]e
said something about how the other people had thought he was
drunk and told him to come back there with me." The
Appellant then left the bedroom.
victim testified that the Appellant returned to the bedroom,
that he was wearing a blue shirt with yellow writing instead
of the white shirt, and that he "pulled his pants down
and showed me his penis." The Appellant's underwear
was pulled up, but the victim could see through his underwear
that his penis was erect. The victim said that she was lying
at the foot of the bed and "trying not to look" and
that the Appellant's pants were down for at least two
minutes. He did not say anything to her and left the room.
The victim used her grandmother's telephone to call her
mother and told her mother to come pick her up.
victim testified that about five minutes later, the Appellant
returned to the bedroom and asked if he could borrow her
telephone. The victim said no because she thought he was
going to break it. The Appellant approached the victim, who
was sitting on the bed, and she "scooted" away from
him. She said she felt scared and uncomfortable and told him
that she was "too young." The Appellant replied
that "that's okay, we're all children" and
pushed her down on the bed. He got on top of her, began
kissing her neck, and pulled her tights and underwear down to
her ankles. He also "touched" her breasts.
victim testified that she thought the Appellant was trying to
"rape" her. She kicked him off and pulled up her
underwear and tights. The Appellant grabbed the victim, put
her arms behind her back, and dragged her into the adjacent
bedroom. The victim said that she fell onto a basket and that
the basket "pierced" her skin. She screamed, and
the Appellant left the room.
victim testified that she went into the kitchen and told her
grandmother that she was "almost raped." The victim
was upset, angry, and crying. After she told her grandmother,
she went back into her uncle's bedroom with some female
family members. Her uncle took her outside to see if the
Appellant was still at the party, but she did not see him at
that time. She later saw him outside and saw that some people
"had him by his arms trying to take him back to the
house." The Appellant was still wearing the blue and
yellow shirt, and the victim told her uncle,
"[T]hat's the guy." She said her uncle tried to
"punch him so they backed him to the porch." The
victim saw a knife on the porch and was going to stab the
Appellant, but her grandmother stopped her. Later that night,
the victim spoke with the police and told them what had
happened. On May 11, 2015, she looked at a photograph array
at the police department and selected the Appellant's
photograph. She wrote on the photograph, "I was laying
in the bed in the back room and this was the person who tried
to rape me." The victim told the jury that she was
"100 percent sure" the Appellant was the
cross-examination, the victim testified that the first time
the Appellant came into the bedroom, he stayed about five
minutes and did not do anything unusual. He left the room and
was gone about two minutes. The second time the Appellant
came into the bedroom, he stayed about ten minutes and showed
his penis to her for two to three minutes. The victim stated
that he was standing up and "saying something" but
that she did not remember what he said. She acknowledged that
he was wearing boxer shorts and that she did not actually see
his penis. The Appellant left the bedroom and was gone about
five minutes. The victim said that she was not supposed to
leave the room because "a lot of adults were in the
house" and that she did not tell anyone about the
Appellant's pulling his pants down because she
"didn't think that was necessary at the time."
victim testified that when the Appellant entered the bedroom
the third time, he started to approach her in "a
dangerously close way." She said that she backed up and
told him she was too young and that he "proceeded to
attack [her]." She stated that the Appellant was on top
of her for two minutes, that she was crying and telling him
to get off of her, and that he told her to shut up. The
victim said the attack lasted "a good ten minutes."
The Appellant did not hit the victim or tear her clothing
during the attack, and she was not injured except for her
falling onto the basket.
victim testified that the Appellant pulled down her tights
and underwear but that she never saw his penis. Defense
counsel asked if the Appellant tried to insert his penis into
her vagina, and she answered, "Not . . . to my
knowledge. I wasn't going to let it happen and get that
far." She then acknowledged that the Appellant was
stronger than she and that he did not try to insert his penis
into her vagina. She also acknowledged that he never touched
her buttocks or "private areas." Defense counsel
asked if the victim remembered testifying at a previous
hearing, and she said yes. The following exchange then
Q Okay. And do you remember being asked a question by the
State: Did he ever touch you with his hands anywhere? Do you
remember being asked that question?
Q And do you remember your answer being: His hands grazed my
butt but that was it?
Q Is that correct? But that was it; right? So today you
testified that he -- you said he grabbed your breasts today
Q Okay. So these are two different statements.
A No, not really. That was, like, the only skin-on-skin
contact that he did, but he did touch my breasts.
redirect examination, the victim reiterated that when she
testified that the Appellant touched only her buttocks, she
meant that his touching her buttocks was the only
"[s]kin-on-skin" contact. The Appellant also
touched her breasts, but her breasts "were
clothed." The victim acknowledged giving a statement to
police on May 11, 2015, and saying in the statement that the
Appellant was "grabbing my breasts between my leg[s] and
attempted to pull my pants down/off."
Rivers, the victim's grandmother, testified that she
attended the party on May 9 and was in the kitchen frying
fish when the victim came into the kitchen "crying,
shaking, telling me that she had almost got raped."
Rivers and the victim went to the bedroom to try to find the
Appellant, but he was gone. Some family members found him
"up on the corner" and brought him back to the
house. Rivers heard that her son was "jumping" the
Appellant and went outside. The Appellant got away from
Rivers' son and ran to the side of the house, and the
victim tried to stab the Appellant. Rivers grabbed the
victim's hand and told her that "you can't do
that." Rivers stayed with the victim until the police
cross-examination, Rivers testified that the incident
occurred about 9:30 or 10:30 p.m., that people were inside
and outside the house, and that loud music was playing. She
said she did not know where the victim got the knife.
victim's mother testified that she attended the party but
left and received a text message from the victim. She
returned to the party, saw people leaving, and wondered what
was going on. The victim was standing on the porch and was
"distraught" and crying. The victim told her mother
what had happened, and her mother saw the Appellant "ran
to get in the car." On cross-examination, the
victim's mother denied hitting the Appellant.
Royal testified that on May 9, 2015, he hosted a party for
his wedding anniversary and his son's birthday. Forty to
fifty people attended the party, and adults and children were
present. The party lasted all day, but the children went home
in the afternoon and the adults "stayed and finished the
night out." The victim, who was Royal's "great
great niece, " attended the party, and Royal saw her in
his bedroom. The Appellant, who was Royal's wife's
great nephew, also attended. At first, the Appellant was
wearing a white t-shirt. Royal later noticed, though, that
the Appellant was wearing "something blue." The
blue clothing turned out to be ...