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State v. Smith

Court of Criminal Appeals of Tennessee, Jackson

January 16, 2018


          Assigned on Briefs March 7, 2017

         Appeal from the Circuit Court for Chester County No. 15-CR-12 Donald H. Allen, Judge

         Defendant, James Earnest Smith, was indicted for one count of rape of a child and one count of aggravated sexual battery. After a jury trial, Defendant was convicted of two counts of aggravated sexual battery. The trial court merged the convictions and imposed a sentence of twelve years' confinement. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that the sentence was excessive. After a thorough review of the record, we affirm the judgments of the trial court.

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

          Lloyd R. Tatum, Henderson, Tennessee, for the appellant, James Earnest Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jody Pickens, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.





         In November 2014, the victim was nine years old and lived in a home on Milam Road in Finger, Tennessee, with her mother and Defendant, her stepfather. The victim's mother and Defendant had married in 2011, and the victim referred to Defendant as "dad." Also living in the home were the victim's two younger brothers, her older stepbrother, and her younger half-sister ("sister"). The home was located on the county line between Chester County and McNairy County, and the victim attended the fourth grade in a Chester County school.

         On November 22, 2014, the victim's stepbrother, James "Hunter" Smith, was riding four-wheelers with his friends when he fell off and hit his head. The victim's mother took Hunter to the hospital in Selmer, Tennessee, around 5:30 that evening while Defendant stayed home with the other children. The victim testified that while the other children were in the living room watching television, Defendant called her into his bedroom. She testified that Defendant used his hands and touched "[m]y lower area and my up here, " indicating her chest, over her clothes. Defendant then took off the victim's clothes and touched her "lower area . . . [w]here my underwear is." The victim testified that Defendant touched both the inside and outside of her "private part" with both of his hands. Defendant then took off his clothes and had the victim lie on her back on the bed while he lay next to her on his side. The victim testified that Defendant "touched me in my private areas, " both inside and outside, with "[h]is private areas" and that it hurt. The victim stated that Defendant "touch[ed] my private parts at times and quit[] a few minutes and then d[id] it again." Eventually, Defendant stopped and told the victim to go to bed. The victim testified that she felt scared that Defendant "would hurt me badly." The victim put her clothes back on and left the room. It was dark outside, the other children were already asleep, and the victim was in bed before her mother and Hunter returned from the hospital.

         On cross-examination, the victim testified that she shared a bedroom with her sister and that her sister would occasionally follow her if she got up in the middle of the night. However, her sister stayed in the living room watching television and did not follow the victim into Defendant's bedroom on the night in question. The victim admitted that she had previously made similar accusations against her biological father. The victim also acknowledged that she was "[k]ind of" angry at Defendant when he punished her by telling her that she would not be receiving a sewing machine as a Christmas present. The victim admitted that she cried but denied that she told Defendant "I hate you." The victim acknowledged that the incident with the sewing machine could have been the same day as the alleged assault, but she could not remember. The victim did not remember injuring her private parts on a bicycle but stated that she had testified about it previously based on what her mother had told her. The victim did not remember seeing any scars below Defendant's bellybutton. On redirect examination, the victim testified that she could not see very well during the assault because the light in the bedroom was off and she was not wearing her glasses. The victim denied accusing Defendant because she was mad about the sewing machine.

         Dr. Lisa Piercy, a board-certified child abuse pediatrician, testified that she examined the victim on December 12, 2014. She spoke to the victim and the victim's mother separately to obtain a medical history before performing a physical exam. The victim reported that Defendant, her ...

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