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State v. Ware

Court of Criminal Appeals of Tennessee, Jackson

February 8, 2018

STATE OF TENNESSEE
v.
TIMOTHY WARE

          Assigned on Briefs May 17, 2017

         Appeal from the Criminal Court for Shelby County No. 16-00491 John Wheeler Campbell, Judge

         Defendant, Timothy Ware, was indicted by the Shelby County Grand Jury for one count of aggravated sexual battery. Following a jury trial, Defendant was convicted as charged and sentenced to 16 years' confinement. On appeal, Defendant contends that the evidence was not sufficient to sustain his conviction. Having reviewed the record and the briefs of the parties, we affirm the judgment of the trial court.

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

          Stephen C. Bush, District Public Defender; and Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for the appellant, Timothy Ware.

          Herbert H. Slatery III, Attorney General and Reporter; Breanne N. Hataway, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Rainey, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Facts

         We will identify the minor victim in this case by her initials, A.A. In January 2015, A.A. lived with her mother Yalonda Durrett and her grandmother in a house in Memphis. They shared the house with their roommates, Defendant and his girlfriend, Vicky. Ms. Durrett had known Defendant for 11 or 12 years, and Defendant had lived with Ms. Durrett and her family for two-and-a-half years.

         In January, 2015, A.A. was ten years old. She testified about an occasion when she fell asleep on a couch in the living room while watching a movie. Defendant was the only other person in the room with her. A.A. testified that she woke up and felt Defendant touching her under her dress. She testified that Defendant was rubbing her "wrong spot" with his fingers, on top of her underwear. A.A. identified the genital area, on a female diagram, as the place Defendant touched her. When A.A. woke up, Defendant "started playing with his phone like he didn't do anything." A.A. went to her mother's room and asked to sleep with her. She told her mother two days later what Defendant had done.

         A.A.'s mother, Ms. Durrett, testified that her daughter told her about the incident on January 22, 2015. She testified that A.A. was crying and she appeared "[v]ery scared, very nervous, worried." Ms. Durrett testified that A.A. typed a message on her phone because she did not want to say it aloud. Ms. Durrett "told [A.A.] to put on her shoes[, ] and [they] left the house immediately." They went to her friend's house and called the police. The police spoke to Ms. Durrett and A.A. at Ms. Durrett's friend's house. Ms. Durrett testified that A.A. did not have a medical exam following the incident. On cross-examination, Ms. Durrett testified Defendant had been a friend of the family and that she had never had problems with him before the incident.

         Stacey Hughes, a detective in the Sex Crimes Unit of the Memphis Police Department, testified that a medical examination was not performed on A.A. because two days had elapsed between the incident and when it was reported. She explained that the victim had "changed clothes and had a bath, [and] there would be no DNA to be recovered."

         Teresa Onry, of the Memphis Child Advocacy Center, conducted a forensic interview of the victim on February 2, 2015. A video recording of the interview was admitted as an exhibit at trial and played for the jury. In the interview, A.A. stated that she fell asleep on the couch, and she felt Defendant "touch her wrong spot" with his finger. Defendant reached over from the other couch where he was sitting to touch her. She stated that when she woke up, Defendant "acted like he wasn't doing anything, just playing on his phone." A.A. went to her mother's bedroom and asked to sleep with her, and her mother told her to sleep in her own ...


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