Assigned on Briefs December 5, 2017
from the Criminal Court for Shelby County No. 14-04003 Paula
L. Skahan, Judge
Defendant, Deandrey Peterson, appeals his convictions for
aggravated rape, aggravated robbery, aggravated burglary, and
possession of a firearm during the commission of a dangerous
felony for which he received an effective thirty-year
sentence. On appeal, the Defendant contends that the evidence
is insufficient to support his convictions and that the trial
court violated Tennessee Rule of Evidence 404(b) in allowing
the State to present evidence of offenses committed against
other victims. We conclude that the trial court committed
reversible error in admitting evidence of other criminal
offenses. Accordingly, we reverse the judgments of the trial
court and remand the case for a new trial.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Reversed and Remanded
Brooks (on appeal), Memphis, Tennessee, and Deandrey
Peterson, pro se (at trial), for the appellant, Deandrey
Herbert H. Slatery III, Attorney General and Reporter; Linda
D. Kirklen, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Abby Wallace and Carrie
Shelton, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Everett Williams, J., delivered the opinion of the court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL BACKGROUND
evidence presented at trial established that on March 9,
2014, the Defendant entered the victim's apartment armed
with a firearm, demanded money from her, raped her, and
forced her to use her debit card to withdraw $200 from an
ATM. On that evening, Ms. Clark, the victim's roommate,
left to visit her boyfriend, and the victim expected her
boyfriend to visit her later that night. The victim decided
to take a shower before her boyfriend arrived.
victim testified that while in the shower, she heard Ms.
Clark's dog barking and believed her boyfriend, who had a
key, was entering the apartment. Ms. Clark's dog kept
barking, but the victim continued with her shower because the
dog barked often. The bathroom door opened, and the victim
looked around the corner and saw a man, whom she later
identified as the Defendant, pointing a gun at her.
victim had not seen the Defendant before that night. She said
the Defendant was wearing a black "hoodie" and dark
clothing, including dark denim or black jeans. He had white
socks on his hands. The bottom of the Defendant's face
was covered with what appeared to be a T-shirt. The victim
could see the Defendant's eyes, a small portion of his
forehead, and the top of his nose. She described the
Defendant's gun as a "nice sized gun" that was
black with silver at the top.
Defendant instructed the victim to be quiet and to remain in
the bathroom. He exited the bathroom and closed the door. The
victim remained standing in the shower for approximately five
minutes. The Defendant looked inside the bathroom and then
closed the door. He returned and instructed the victim to get
out of the bathroom. The victim grabbed a towel and went into
her bedroom. The Defendant demanded money and her jewelry.
The victim told him that she did not have any cash, and she
only had "[f]ake jewelry, " which was on the bed.
The victim observed that the Defendant had been through her
wallet and that its contents were scattered on her bed.
Defendant instructed the victim to sit on an air mattress
that was against the wall in the corner of the bedroom.
Because the victim was staring at the Defendant's face,
he instructed her to stop looking at him and to face the
wall. The Defendant rummaged through the victim's closet
and left the room.
victim testified that her boyfriend began calling her and
that at one point, he was driving around outside of her
apartment. The Defendant instructed the victim to answer her
cellular phone and to tell her boyfriend to leave. The
Defendant looked outside through a window and saw her
boyfriend driving around. The Defendant told the victim that
if her boyfriend did not leave, the Defendant would shoot
both the victim and her boyfriend. The victim said the
Defendant was holding his gun while making the threats.
victim and the Defendant entered Ms. Clark's bedroom
where the Defendant instructed the victim to sit on the bed.
He used Ms. Clark's blue bandanna to blindfold the victim
and instructed her to lie down on the bed. The Defendant
asked the victim whether she wanted him to perform oral sex
on her, and the victim said, "[N]o." The victim
testified that when the Defendant asked her about oral sex,
he "softened up" and that he "wasn't as
mean. Like he wasn't telling me he was going to shoot me
if I didn't have sex with him." The Defendant asked
the victim where the condoms were, and the victim was crying
and did not respond. He told the victim that if she did not
stop crying, he would shoot her in the head and leave. He
asked her whether she wanted him to shoot her in the head and
leave. The victim told him that she did not know where any
the victim was still blindfolded, the Defendant instructed
her to lie down on the floor, and he produced a condom and
vaginally raped her. Afterwards, the Defendant went into the
bathroom, and the victim heard water running and the toilet
flush. The victim opened her eyes under the blindfold and saw
the Defendant rummaging through Ms. Clark's closet. The
Defendant instructed the victim to go wash herself. After the
victim washed herself in the bathroom, the Defendant told her
to put on some clothes because they were going to walk to an
ATM machine. The Defendant had taken the victim's
Defendant and the victim walked outside the apartment and
through a few buildings. The victim testified that the
Defendant was either leading the way or directing their path.
She did not know where the Defendant's gun was but said
it was likely in his hand. The Defendant told the victim
"not to do anything stupid because it will get
ugly." He stopped at a building and instructed the
victim to withdraw $200 from an ATM machine located across
the street. The victim stated that the ATM machine was inside
a glass building next to a gas station. She did not know
where the Defendant was while she was at the ATM machine and
said she attempted to look around but did not see anyone. The
victim stated that she did not flee because she did not know
where the Defendant was. The victim withdrew $200, walked
back across the street, and gave the money to the Defendant.
The Defendant instructed the victim to reach into his pocket
and retrieve her cellular phone.
the Defendant and the victim were walking back toward the
victim's apartment, the Defendant asked her whether she
wanted him to continue walking her home, and she said she did
not. The Defendant asked whether she intended to call the
police, and she assured him that she did not. He told her
that he lived in the area and that if he saw that she
contacted the police, he would return and shoot everyone. The
Defendant then walked away, and the victim returned to her
apartment. The victim called her boyfriend, who had returned
to his home in Horne Lake, Mississippi, and he told her to
leave the apartment. The victim walked across the street to
an Extended Stay motel where she called Ms. Clark. The victim
explained that she did not contact the police because she was
Ms. Clark and her boyfriend arrived, the victim got into
their vehicle, and they drove around until they located a
police officer. The victim reported the rape, and the officer
contacted other officers to respond. The victim accompanied
the officers back to her apartment where she walked through
the apartment with the crime scene investigators. Officers
then took her to the Rape Crisis Center to be examined.
victim identified the Defendant as her attacker in a
photographic line-up on April 14, 2014, and at trial. She
testified that she recognized the Defendant by his eyes. She
stated that during the episode, she stared at the Defendant
until he told her to not to look at him or blindfolded her.
She maintained that she was "100 percent sure" that
the Defendant was the man who attacked her.
victim was shown a photograph of a broken window at her
apartment that was located on the same side as the door knob.
She said the window was not broken prior to the
Defendant's entry into the apartment. She believed the
Defendant broke the window in order to unlock the door and
cross-examination, the victim testified that in her written
statement to the police, she described the perpetrator as an
African-American male who was twenty-two or twenty-three
years old, was approximately 5 feet, 7 inches or 5 feet, 8
inches tall, and had an average build. The victim told
officers that the perpetrator was wearing a black jacket with
a hood that was over his head and closed over his mouth and
the lower portion of his face. She said he was also wearing
either dark or black denim pants, dark tennis shoes with
white trim, and socks over his hands. She did not see any
tattoos on the perpetrator.
victim's boyfriend testified that he was supposed to
visit the victim on the night of the offenses. He was living
in Horn Lake, Mississippi, which was approximately thirty to
forty minutes away from the victim's apartment. He said
he did not have a key to the victim's apartment at that
time. He called the victim several times while driving to her
apartment, but she did not answer any of his calls. He
arrived at the apartment complex and began walking toward the
victim's apartment when the victim answered his call. The
victim told him to go back home and continued to repeat the
statement. Her boyfriend said that although he did not feel
comfortable leaving, he complied with the victim's
request. He said that he noticed that one of the window panes
by the victim's apartment door was broken and that he had
not noticed the broken window previously.
victim's boyfriend testified that he had not made it back
home before the victim called him crying. She did not provide
many details, but because he knew something bad had occurred,
he turned his car around and drove back toward the
victim's apartment. He found the victim in a patrol car a
few blocks away from her apartment. She later told him that
she had been assaulted.
Clark testified that she left the apartment she shared with
the victim around 11:00 p.m. or midnight to visit her
boyfriend. Approximately one and one-half hours later, Ms.
Clark checked her cellular phone and noticed multiple missed
calls from the victim. When Ms. Clark called the victim, Ms.
Clark noticed that the victim's voice was
"quivering" and that the victim sounded like she
had been crying. The victim told Ms. Clark that someone had
broken into the apartment but did not take anything. Ms.
Clark and her boyfriend then began driving toward the
apartment. When they neared the apartment, the victim told
Ms. Clark that the person raped her and that she ran to an
Extended Stay Hotel. Ms. Clark and her boyfriend met the
victim at the hotel. The victim was crying and ran to their
Clark stated that the victim told her that she had not called
the police because the man warned her that if she did so, he
would return and kill both the victim and Ms. Clark. Ms.
Clark said she and her boyfriend made the victim call the
police anyway. After the victim was placed on hold, they
decided to drive to the nearest precinct. While driving, they
saw a police officer and flagged him down.
Clark said she was allowed to reenter the apartment after the
victim walked through the apartment with the officers. Ms.
Clark noticed that everything that was in her closet and on
her shelves had been thrown on the floor and that her
comforter was missing. She stated that the window by the door
was not broken when she left to visit her boyfriend earlier