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State v. Durham

Court of Criminal Appeals of Tennessee, Jackson

December 14, 2017

STATE OF TENNESSEE
v.
ANTONIO DURHAM

          July 11, 2017 Session

         Appeal from the Criminal Court for Shelby County No. 15-04366 James M. Lammey, Judge

         A 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 resentencing.

         Tenn. R. App. P. 3 Appeal as of Right Judgment of the Criminal Court Affirmed in Part, Reversed in Part, Case Remanded

          Tony 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.

          Norma McGee Ogle, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         At 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.

         The 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.

         The 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.

         The 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.

         The 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 perpetrator.

         On 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."

         The 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.

         The 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 occurred:

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?
A Yes.
Q And do you remember your answer being: His hands grazed my butt but that was it?
A Yes.
Q Is that correct? But that was it; right? So today you testified that he -- you said he grabbed your breasts today earlier.
A Yes.
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.

         On 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."

         Darron 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 arrived.

         On 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.

         The 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.

         Danny 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 ...


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