Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 28, 2018
from the Circuit Court for Sevier County No. 19414-II Walter
C Kurtz, Senior Judge
Defendant, Mainor Celin Avilez Canales, was convicted after a
jury trial of aggravated sexual battery and sentenced to
serve twelve years in prison. The Defendant appeals,
contending that the jury instructions did not adequately
specify the mens rea of the offense and that the trial court
improperly enhanced the sentence. After a thorough review of
the record, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
William Lee Wheatley, Sevierville, Tennessee, for the
appellant, Mainor Avilez Canales.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Jimmy B. Dunn, District Attorney
General; and Ronald C. Newcomb, Assistant District Attorney
General, for the appellee, State of Tennessee.
Everett Williams, J., delivered the opinion of the court, in
which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.
EVERETT WILLIAMS, JUDGE
AND PROCEDURAL HISTORY
Defendant was charged with aggravated rape after he was seen
carrying the semi-conscious and beaten victim across the
parking lot of a bar. The victim, who was severely
intoxicated at the time she was assaulted, could not recall
the particulars of the assault. At trial, the Defendant
asserted that he did not have intercourse with her and that
her injuries were the result of a fall.
victim and her friend, Ms. Angelica Buckner, met each other
for drinks at a bar shortly after 9:00 p.m. on January 31,
2014. The victim testified that the Defendant and his friend
approached her and Ms. Buckner at the bar. The Defendant was
speaking English, and the victim could generally understand
him. She had trouble with "[v]ery few" words that
he spoke. The victim testified that the Defendant attempted
to dance with her but that she did not want to dance.
Instead, the Defendant danced behind her as she was trying to
get her friend to dance in the bar area. The victim testified
that the Defendant attempted to put his hands on her bare
hips under her clothing, and she removed his hands but
allowed him to dance with his hands on her hips outside her
clothing. The victim stated that she did not hug or kiss the
Defendant at any time.
victim drank five and one-half drinks: she had two mixed
drinks with Ms. Buckner when she first arrived, drank a shot
that the Defendant's friend bought her, drank two shots
which the Defendant had bought for herself and Ms. Buckner,
and drank half of Ms. Buckner's mixed drink. She recalled
speaking with the bouncer at the bar, who offered to remove
the Defendant, and she testified that she told the bouncer
that "he wasn't bothering us at the time." The
victim went outside to smoke a cigarette on the front patio
area of the bar, and the Defendant followed her.
victim testified that when she went outside to smoke, she and
the Defendant were the only two people outside, and the
Defendant was touching her and "kept … trying to
get me to have sex with him." The victim testified that
she grew frustrated and replied, "No, because you're
nothing more than a dirty f***ing Mexican." She stated
that she assumed the Defendant would leave her alone and she
turned to continue smoking her cigarette. She next remembered
"spitting out the cherry on my cigarette because it had
got knocked into my mouth partially." The victim
testified that she had two burns on her lip, and she was
"not 100% sure if he actually hit me or hit me with
something." The victim recalled begging the Defendant to
leave her alone, apologizing, and offering to pay him for the
drinks. She next remembered lying on her back with the
Defendant above her and could recall nothing further
regarding the assault.
victim acknowledged that in all of her prior statements and
in her testimony at the preliminary hearing, she had stated
that she remembered nothing between going outside to smoke
and waking up in a hospital. The victim explained that she
had tried very hard to remember the assault and had spoken
with some of the witnesses from the bar to that end. In May
or June 2014, she recalled the additional snippets to which
she had testified. She still could not recall any further
information. She did not inform the prosecution or anyone
else about the information she had recalled until the day
before trial because she did not think it would be useful
until trial. The victim stated that she did not unzip or
unbutton her pants, did not pull up her shirt, and did not
consent to have intercourse with the Defendant. She
acknowledged having a boyfriend but asserted that she was not
fabricating an assault to protect that relationship.
Buckner agreed that the Defendant and his friend approached
the victim and Ms. Buckner "periodically" at the
bar. The victim was wearing jeans, a blouse, and flip-flops.
Ms. Buckner consumed one beer, one-half of a
"gross" mixed drink, and one to two shots. She
testified that the Defendant was "handsy" with her
and with the victim and that Ms. Buckner repeatedly told him
to leave them alone. Ms. Buckner testified that she became
frustrated and used "inappropriate language" to
make the Defendant leave. Ms. Buckner told the Defendant,
"We do not f*** Mexicans." The Defendant replied
that he was from Colombia. She acknowledged that she spoke
with the bouncer at the bar and that while she did mention
that the men would not leave them alone, she did not say she
felt uncomfortable. She explained that she believed she had
made it clear to the men that they should not bother her
anymore. After Ms. Buckner made her comment, the Defendant
and his friend left the women alone. The victim went outside
to smoke a short time later.
Jesse Parker was working as a bouncer at the bar and
recognized the Defendant, who was a regular customer. Mr.
Parker noticed the Defendant speaking with the victim and Ms.
Buckner, and Mr. Parker checked on the victim and Ms. Buckner
while the Defendant was gone to make sure that they were not
uncomfortable with his attention. He testified that he
witnessed the victim kiss the Defendant and saw some
"pretty strong hugging" between the women and the
were no witnesses to testify regarding exactly how the victim
sustained her injuries. However, numerous witnesses who were
outside near a back kitchen entrance to the bar saw the
Defendant with the injured and incoherent victim shortly
after 11:00 p.m.
Raymond Stupplebeen was outside the kitchen entrance when he
saw the Defendant and victim behind the
restaurant next door, "circling each
other." He testified that it looked like they were
dancing but that "something wasn't right. The body
language wasn't right." He elaborated that part of
what raised a "red flag" was that he did not know
where the victim and the Defendant had come from despite the
fact that he was smoking his second or third cigarette when
he noticed them. He saw the victim fall on her behind, and
the Defendant stood over her for a minute and "went down
to almost get her, " at which point "her arms kind
of went up." He pointed out to the others that he felt
something was wrong, but no one addressed the matter until a
few minutes later, when the Defendant picked up the victim
"in a bear hug position with her arms and her legs kind
of dangling down, " her feet limp, and her face hidden.
The victim's pants were pulled down slightly, exposing
her lower back and upper buttocks.
Defendant carried the victim in one direction until he saw
the people gathered near the kitchen entrance, at which point
he changed his direction toward the parking lot. Mr.
Stupplebeen approached the Defendant and circled him a few
times, trying to see the victim's face. He felt that the
Defendant's movements were calculated to hide the
victim's face. When the others who were outside shouted
for the Defendant to let the victim go, he dropped her to the
ground "hard, " and Mr. Stupplebeen could see
"road burns or beat marks" on her face. The victim
was missing a shoe. She was unable to move and was propped
against a car by bystanders. Mr. Stupplebeen did not recall
the victim reaching for him. He tried to stop the Defendant
from leaving and called 911 while following the Defendant,
who entered ...