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State v. Avilez Canales

Court of Criminal Appeals of Tennessee, Knoxville

May 4, 2018

STATE OF TENNESSEE
v.
MAINOR CELIN AVILEZ CANALES

          Assigned on Briefs March 28, 2018

          Appeal from the Circuit Court for Sevier County No. 19414-II Walter C Kurtz, Senior Judge

         The 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.

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

          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.

          John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The 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.

         The 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.

         The 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.

         The 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.

         The 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.

         Ms. 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.

         Mr. 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 Defendant.

         There 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.

         Mr. Raymond Stupplebeen was outside the kitchen entrance when he saw the Defendant and victim behind the restaurant[1] 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.

         The 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 ...


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