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State v. Brown

Court of Criminal Appeals of Tennessee, Jackson

April 11, 2018


          Assigned on Briefs December 5, 2017

          Appeal from the Criminal Court for Shelby County No. 13-01224 James C. Beasley, Jr., Judge

         The Defendant, Andre Brown, was convicted by a Shelby County Criminal Court jury of two counts of aggravated rape, aggravated kidnapping, and domestic assault and was sentenced by the trial court as a Range I, standard offender to an effective term of thirty years at 100% in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and argues that the trial court erred by enhancing his sentences and ordering consecutive sentencing. Following our review, we affirm the judgments of the trial court.

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

          Stephen C. Bush, District Public Defender; Barry W. Kuhn (on appeal) and Michael Johnson (at trial), Assistant Public Defenders, for the appellant, Andre Brown.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Kenya Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

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


          ALAN E. GLENN, JUDGE


          On the afternoon of August 13, 2012, C.B., [1] a medical assistant student at Delta Technical College, reported to an instructor at her school that the Defendant, a former boyfriend, had kidnapped her from her Southaven, Mississippi, home that morning and taken her to his brother's Memphis home, where he cut her scrub pants off with a box cutter and used a Taser to force her to submit to vaginal intercourse and to perform oral sex on him. The Defendant was subsequently indicted by the Shelby County Grand Jury for aggravated rape by use of force or coercion and while armed with a weapon, aggravated rape causing bodily injury, aggravated kidnapping, and domestic assault.

         State's Proof

         At the Defendant's November 2016 trial, the victim testified as follows. In 2012, she was nineteen years old and a medical assistant student at Delta Technical College. She had begun dating the Defendant when she was seventeen and had dated him for approximately a year and half before ending the relationship when she was eighteen. On the morning of August 13, 2012, she exited her Southaven home in preparation for driving to school for her morning classes when she was surprised in the carport by the Defendant, who was carrying a Taser. She attempted to use her cell phone to call the police, but the Defendant wrestled her phone and her mother's SUV keys from her, forced her into the backseat of her mother's SUV, drove her to his brother's apartment complex in Memphis, and yanked her from the vehicle.

         The victim did not want to go with the Defendant and wrestled with him, but he forced her into his brother's apartment. Although there were other individuals outside the apartment complex, she did not call out for help because she was "too busy fighting with [the Defendant]." When she entered the apartment, she saw the Defendant's brother, Percy, or "P.J., " and heard some children. The Defendant handed his brother the keys to the victim's vehicle and told him he could use the vehicle to go wherever he wanted. P.J. left, and the Defendant told the victim that he wanted to have sexual intercourse with her. She told him she did not want to, but he picked up a box cutter from beside the television set and began cutting her scrub pants and thermal underwear off her. He also cut her arm, causing it to bleed.

         The Defendant wanted the victim to bend over so that he could have intercourse with her, and although she did not want to, she ultimately complied because he kept "tasing" her. After having vaginal intercourse with her, the Defendant wanted her to perform oral sex on him and, once again, repeatedly used his Taser on her to force her to comply. The Defendant ejaculated in her mouth, and she spit the ejaculate out onto the couch. The Defendant began cursing and yelling at her, while she sat there afraid.

         The Defendant next gave the victim some pajama pants to wear in place of her destroyed scrub pants. P.J. returned to the apartment and handed the victim's vehicle keys to the Defendant. The Defendant then left the apartment, and P.J. went into a back room. At that point, the victim grabbed her keys, along with the Defendant's identification, from the top of the television where the Defendant had placed them, ran from the apartment, got into her vehicle, which she found parked in front of the apartment, and drove to her school to tell her teacher, "Ms. Lari, " what had happened.

         The victim explained that she went to the school to tell Ms. Lari because she had had earlier conversations with Ms. Lari about the problems she was experiencing with the Defendant. She said Ms. Lari cleaned the cut on her arm and called the police. The Southaven police officers who responded took her to the Southaven Police Department, where they photographed her wounds. The victim identified the photographs of her injuries, which were published to the jury and admitted as exhibits. She testified that after she talked with the Southaven police officers, she met with a Memphis police officer, who took her to a rape crisis center.

         On cross-examination, the victim acknowledged her mother was not happy about her dating the Defendant. She denied that she remained in contact with the Defendant after their break-up or arranged to meet him on the day of the incident. She testified that the Defendant used his Taser on her during their struggle in her carport and picked her up to put her in the backseat of her mother's SUV. She acknowledged that she did not try to escape from the vehicle and that she never called out to bystanders or passing motorists for help. She denied that she saw P.J.'s girlfriend, Kendra, at P.J.'s apartment that day. She said she never saw the children, who remained in a back bedroom at the apartment, and that she never asked P.J. for help.

         The victim testified that the Defendant dragged her into the apartment by holding her with one hand and opening the apartment door with his other hand. She did not know where the Defendant's Taser was during that time and said that he either picked up a second Taser, or the same one, from atop the TV once they were inside the apartment. She denied that she told the Defendant in a phone conversation after the incident that she was upset because he was cheating on her or that she could not drop the charges because her mother would "cut [her] off" if she did. Finally, she acknowledged that she filed a claim for victim's compensation and received the maximum allowable amount.

         On redirect examination, the victim testified that she did not ask P.J. for help because she knew from past dealings with him that he would do nothing for her. She said she remained in the apartment until after the Defendant left because she feared for her life while the Defendant was present. She described the pain she felt from the Taser as a nine on a scale from one to ten.

         Lari Langley testified that in August 2012 she was an instructor in the medical assisting program at Delta Technical College, where she taught the victim. On the morning of August 13, 2012, the victim uncharacteristically failed to show for class or call to report her absence, which worried her. Sometime between noon and 1:30 p.m. that same day, she saw the victim coming down the hallway toward her. The victim was wearing regular clothes instead of the required scrubs, and the pants she was wearing were missing one leg. In addition, the victim's hair was disheveled, her eyes were bloodshot, and her face was swollen on one side. The victim, who was distraught and had trouble gathering her words, kept repeating, "He did it." Ms. Langley testified she noticed a cut on the ...

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