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State v. Jones

Court of Criminal Appeals of Tennessee, Jackson

February 22, 2018

STATE OF TENNESSEE
v.
DEWAYNE JONES

          Assigned on Briefs December 5, 2017

         Appeal from the Criminal Court for Shelby County No. 13-04800 J. Robert Carter, Jr., Judge.

         A jury convicted the Defendant, Dewayne Jones, of rape of a child, incest, and aggravated sexual battery for crimes committed against his daughter, and he was sentenced to an effective sentence of thirty-five years. The Defendant appeals, asserting (1) that the evidence was insufficient to sustain the convictions; (2) that the trial court committed error in questioning a witness; (3) that the trial court erred in failing to merge the convictions; (4) that the trial court improperly imposed consecutive sentences; (5) that the trial court lacked subject matter jurisdiction; and (6) that he is entitled to relief under a theory of cumulative error. After a thorough review of the record, we affirm the judgments of the trial court and remand for correction of a judgment form to reflect the proper statutory provision for the conviction offense.

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

          Gregory D. Allen (on appeal) and John Dolan (at trial), Memphis, Tennessee, for the appellant, Dewayne Jones.

          Herbert H. Slatery III, Attorney General and Reporter; Johnathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton-Bush and Kenya Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant is the biological father of the victim, but he was absent during the bulk of her childhood. The victim's mother relied on the victim's paternal grandmother for help with childcare while the victim's mother finished high school. The victim's grandmother continued to help with the victim as the victim grew up, frequently keeping her on weekends. The victim enjoyed visiting her grandmother and playing with the victim's aunt, who was the victim's age.

         In late 2012, the Defendant returned to the state and lived at the victim's grandmother's home, where the assaults occurred in early 2013, when the victim was eleven years old. At trial, the victim's diary was admitted into evidence, [1] and the victim testified regarding the events described in the diary. The victim stated that she wrote poetry and stories and that she wrote down what the Defendant had done to her "[t]o get it out of my head." She habitually wrote in the diary after returning to her house from her grandmother's house, and she testified that the dates of the diary entries reflected the dates that she wrote down the events. The victim hid her diary because she did not want her younger brother to find it and because she was scared that she would be blamed for the assaults. However, the victim began to take things belonging to her mother, such as family photos and clothing, and put them near the diary, hoping that her mother would look for her missing property, find the diary, and read it. The victim hoped that her mother would discover the abuse without the victim having to tell her directly.

         The victim ultimately testified to three rapes that occurred in January or February 2013. During the first rape she described, the victim was asleep on the couch in the living room. She testified that she was a very heavy sleeper who "usually can't feel[] or hear anything, " and that her mother frequently had trouble waking her up. The victim at first testified only that she "felt something, " did not know what it was, and that she "figured" it out "when other stuff started happening." However, she clarified that what she felt was "[a]round the vagina area, " that her pants were removed, and that "something was inside." She testified that she did not know who the perpetrator was "at first" but that the Defendant came in and out of the room. She also testified that her aunt was in the house and that she could not recall if her grandmother was there. She woke up the next morning and found her clothing rearranged. The victim read a diary entry dated January 27, 2013, in which she had written, "Today I got laid by my daddy…." She testified that she was describing "sex" and describing what the Defendant did.

         Another rape occurred when she was going to the bathroom at her grandmother's home one morning. The Defendant stopped her on the way to the bathroom, retrieved a pregnancy test, went into the bathroom with her, and made her take the test. The victim's initial testimony was that after the test was negative, she did not "recall exactly what happened, I just remember something did." She also testified that she had spent the weekend of February 3, 2013, at her grandmother's home, but she did not recall whether the Defendant was there that weekend. She later testified, however, that the Defendant "ha[d] sex" with her after forcing her to take the pregnancy test, and she confirmed that she meant his "private parts" went into hers. A diary entry dated February 2, 2013, recorded, "Today I took a pregnancy test to see if I was pregnant by my dad, after that he told me I wasn't and he did me in the bathroom."

         The victim also described the Defendant driving her home from her grandmother's house, pulling into an "abandoned work place, " coming around to her side of the car, and raping her. The victim testified that there was a third diary entry but that she could not decipher her handwriting.

         On cross-examination, the victim testified that she had found out what the word "laid" meant from television, that she heard the phrase "did me" on the show "Family Guy, " that she learned what "having sex" was from television, and that she learned the word "rape" at school. She agreed that "a lot of this information comes from other children." The trial court at this point clarified with the victim that by "information, " she meant the terminology she was using. The victim explained that she chose the words in her diary because "[t]he diction was stronger."

         After the parties indicated that they had no further questions for the victim, the judge asked the victim questions to clarify her testimony:

THE COURT: I have one set of questions. …[W]hen you were describing a minute ago you said he - in the bathroom, after the pregnancy test that your dad had sex with you; is that the word you used?
A. No.
THE COURT: Okay. What word did ...

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