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State v. Stewart

Court of Criminal Appeals of Tennessee, Knoxville

January 4, 2018


          Assigned on Briefs December 20, 2017

         Appeal from the Criminal Court for Knox County No. 104396 Steven Wayne Sword, Judge

         The Defendant, Joshua Michael Stewart, was found guilty by a Knox County Criminal Court jury of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-15-522 (2014) (rape of a child), 39-13-504 (2014) (aggravated sexual battery). The trial court sentenced the Defendant to twenty-five years for rape of a child, twelve years for aggravated sexual battery, and eight years for aggravated sexual battery. The court ordered partial consecutive service, for an effective sentence of thirty-three years at 100% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the court erred by denying his request to exclude references to his tattoos and relationship with his father from the recording of his police interview. We affirm the judgments of the trial court.

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

          J. Liddell Kirk (on appeal) and Scott C. Firth (at trial), Knoxville, Tennessee, for the appellant, Joshua Michael Stewart.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Charme P. Allen, District Attorney General; and Joan S. Stewart and Ashley McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.



         In this case, the Defendant was indicted for rape of a child and two counts of aggravated sexual battery. The victim was ages seven and eight at the time of the incidents and was the Defendant's stepsister.

         The victim testified that her birthday was December 12, 2000, that she was age fifteen at the time of the trial, and that she was in the tenth grade. She said that she had lived with her father since eighth grade, that she had lived with her best friend's family for about six months before moving into her father's home, and that she had lived with her mother before living with her best friend's family.

         The victim testified that between second and fourth grade, she lived with her mother, her stepfather, her younger brother, and the Defendant in a two-bedroom apartment. The victim said that she shared a bedroom with her younger brother and that the Defendant slept in the living room. She s aid that the Defendant was her "big brother" and that she looked up to him. She recalled the Defendant's babysitting her and her younger brother frequently and said that she talked to the Defendant about her problems and that she saw the Defendant as her protector. She said that the Defendant was age twenty-four or twenty-five during this time. She said that as she became older, she wanted to spend less time with the Defendant.

         The victim testified that she was in court "[t]o prosecute [the Defendant] for making me touch him, touching me, and fingering me." She said this happened in the two-bedroom apartment and recalled she was in second grade at the time. She stated that one incident occurred at night after she had gone to bed. She said that she hated going to bed because she knew the Defendant would enter her bedroom. She said that the Defendant entered the room, that she attempted to act as though she were asleep, and that the Defendant "took [her] arm, " "made [her] touch his penis" until he ejaculated on her hand, cleaned her hand with what she believed was a paper towel, and left the room. She recalled this incident "vividly" and said that the Defendant pulled the blanket away, grabbed her left arm, and did not speak. She said that her younger brother slept in the bedroom during the incident. She said that the Defendant did not hurt her when he grabbed her arm but that she was scared to pull away or to refuse him. She said that this incident was not the first time she had touched the Defendant's penis and said she knew it was a penis because "it was just one of those things that you could tell . . . . It was weird." She said the Defendant made her rub his penis by placing his hand around her hand and moving her hand up and down. She recalled hearing the zipper and button of the Defendant's pants before and after the incident and said it was warm outside. She said that the Defendant told her if she told anyone, they would never see each other again. She thought she was in the third grade at the time.

         The victim testified that more than one incident occurred in the apartment, although she did not recall the events "vividly." She recalled one incident in which she awoke during the night, walked to her mother's bedroom, and asked her mother to come into her bedroom because she was scared of the dark. The victim said that her mother would not get out of bed, that the Defendant was awake in the living room watching pornography, and that she asked him if she could watch a Barbie movie. She said the Defendant replied, "Yeah, after you watch my movie." She recalled that she watched the Defendant's movie, that a woman performed a sex act on a man, and that the Defendant told her if she were ever sick, she should come to him because "the white stuff would make [her] feel better." She said that the Defendant wanted her to "taste it, " that she refused, and that the Defendant left her alone.

         The victim testified that generally, the Defendant told her not to open her eyes each time he entered her bedroom and that the Defendant said frequently that "it was just a game and . . . he would play [her] game if [she] played his" game. She said she and the Defendant played board games and hide and seek. She said that generally, the Defendant usually told her she was "a good girl" after each incident before leaving her bedroom. She said that she was "surprised" the first few times the Defendant entered her bedroom at the apartment but that after a while, she "kind of got use[d] to it . . . and . . . anticipated it." When asked if she recalled anything about the Defendant's body, she said he "had a lot of tattoos."

         The victim testified that about one month before her family moved out of the apartment and to a home on Jacksboro Pike, the Defendant moved into a home with his then-wife in Knoxville. The victim recalled visiting the Defendant's home frequently and said she was best friends with the Defendant's daughter. She described the layout of the Defendant's home and said that when she was about age nine and in the fourth grade, she slept in the Defendant's daughter's room or in the living room. She recalled one incident in the Defendant's daughter's bedroom during which the Defendant "made" her touch his penis with her hand. T he victim said that the Defendant's daughter slept in the bedroom during the incident. The victim recalled lying on her back in the Defendant's daughter's bed and the Defendant's telling her to be quiet. She did not recall whether her eyes were closed. She said that she rubbed his penis, that he ejaculated, that he cleaned her hand, and that he left the bedroom. T he victim said that she told the Defendant's daughter about the incidents and that the Defendant's daughter did not believe her.

         The victim testified that a second incident occurred at the Defendant's home. She recalled that she fell asleep on the couch in the living room, that she faced the wall while lying on the couch, and that the Defendant came to the couch and "made" her touch his penis. She said that he took her hand and placed it on his penis, that he closed his hand around her hand, and that she rubbed his penis until he ejaculated. She did not see anyone else in the room but recalled that the ...

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