Assigned on Briefs February 6, 2018
from the Criminal Court for Shelby County No. 14-06409 W.
Mark Ward, Judge
defendant, Gabriel Dotson, was convicted of rape of a child,
aggravated sexual battery, rape, and incest for which he
received an effective sentence of thirty-five years. On
appeal he challenges his convictions on the grounds there was
insufficient evidence to support the jury's verdicts, the
State made improper statements throughout trial which
prejudiced the defendant, the trial court erred in
instructing the jury, the trial court erred in enhancing his
sentence, and the cumulative effect of the errors at trial
prejudiced the verdict. Upon our thorough review of the
record, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
M. Dougherty, Memphis, Tennessee, for the appellant, Gabriel
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Bryce Phillips and Sarah Poe,
Assistant District Attorneys General, for the appellee, State
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
ROSS DYER, JUDGE.
and Procedural History
December 16, 2014, a Shelby County Grand Jury indicted the
defendant for rape of a child, aggravated sexual battery,
rape, statutory rape by an authority figure, and incest. The
charge for statutory rape by an authority figure was later
defendant was charged with abusing his biological daughter,
At the time of the trial, she was nineteen years old. The
victim, the eldest of five children, was born on July 20,
1997. The victim testified the defendant started sexually
abusing her the summer before she started the seventh grade.
victim's first memory of the abuse was after the
defendant asked what she would do for $100. She offered to
clean her parents' closet or the entire house, but said
she would not "do anything like prostitution . .
.." A couple days later the victim asked the defendant
for money to go shopping. The defendant gave her his debit
card and told the victim she could get whatever she wanted,
as long as she did what he asked when she came home. When the
victim returned from shopping, the defendant ordered her to
sit down and lay back on the bed. She asked why, and he
pushed her back and said "Becky." The victim
clarified that "Becky, " the name of a popular
song, was slang "detailing things that you do throughout
sex and stuff like that." The victim became upset and
left the room.
next incident the victim recalled occurred during the summer
before seventh grade. The victim could not recall whether it
occurred before or after her birthday on July 20, but
testified she was either eleven or twelve at the time. During
this incident, defendant came into her room one night and got
under the covers with her. She asked him what he was doing,
and the defendant told her that he was just putting his
tongue "down there, " and then licked the inside of
the victim's vagina.
victim could not recall the exact date of the next incident
because the abuse occurred "many times, " twice per
week between 2009 and 2014 and in many areas of the house. On
one occasion in 2013 or 2014, the defendant came into the
room, told the victim to put away her phone, pulled down her
pants, and touched her vagina. When the defendant tried to
insert his penis into the victim's vagina she felt
pressure on her vagina but did not think his penis went all
the way into her vagina. The victim testified she would tell
the defendant to stop, but it did not deter him. According to
the victim, the defendant would tell her "he just wanted
to teach her."
another occasion the defendant tried to penetrate the
victim's anus. The victim remembered the incident
occurring in 2011 on her mother's birthday, prior to her
freshman year of high school. The victim was in bed in her
room when the defendant tried to penetrate her anus with his
victim also testified that the defendant would demand she
give him "special hugs." The defendant had the
victim wrap her arms around his neck while he placed his
hands on her buttocks and left no space between their bodies
so that she could feel his erect penis. She recalled the
"hugs" started within the first year after the
abuse began in 2009.
victim explained the sexual abuse noticeably affected her.
She became an introvert and avoided being touched by people.
She became suicidal and cut her wrists and arms a
"couple of times." The anxiety, caused by the
abuse, began to trigger asthma attacks that left her unable
to breathe. She visited her doctor for chest pains and was
diagnosed as suffering from panic attacks.
victim did not disclose the abuse for several years for
numerous reasons. She thought her family was happy. Her
parents had just gotten married, and they were about to have
twins. Also, the defendant was the primary income source for
the family, and the victim feared her family would suffer
financially without him. She also believed the defendant had
anger issues. Though the defendant never threatened the
victim, she feared him. He often warned her not to disclose
the abuse, telling her it was between the two of them, and he
was "just trying to teach her."
March 2014, Sharon McQueen from the Department of
Children's Services came to the victim's school after
receiving a report from Annika Ezell, the victim's school
mentor, that the defendant was sexually abusing the victim.
Ms. Ezell testified that she had been notified the victim was
harming herself. When Ms. Ezell asked the victim about the
situation, she initially downplayed her problems. However, a
couple of days later, the victim admitted she had been
hurting herself due to the defendant's abuse.
school held a meeting with the victim, Ms. Queen, and Darla
Young, the assistant principal. Ms. Queen asked the victim if
her father had been abusing her. The victim answered yes and
disclosed all incidents of abuse occurring since 2009. The
victim testified she "broke down" during this
meeting, injuring herself with a pencil and her nails.
Ezell then left the office to speak with the victim's
parents. The victim could hear her mother crying and
screaming and did not want to see either of her parents. She
provided a statement at the Child Advocacy Center in March
2014. During the interview, the victim denied the defendant
ever put his penis inside her vagina but said he put his
penis in her anus one time.
jury also heard testimony from the victim's mother. She
testified that of her five children, the victim is the
oldest. In March 2014, the victim's mother received
notice from the school that the victim was having a panic
attack. Upon receiving the call, she told the defendant she
was going to the victim's school, and the defendant
wanted to accompany her. She found this unusual because the
defendant had been at work until early that morning. Ms.
Cooper and the defendant brought their infant twins with them
to the school.
arriving at the school, Ms. Cooper and the defendant were
informed the victim did not want to see them, which shocked
Ms. Cooper. Ms. Cooper said the defendant appeared nervous,
which she attributed to him worrying about the victim. Ms.
Cooper was then led to the back of the office. The defendant
was not allowed to go with her and stayed behind with their
twin children. Ms. Cooper spoke with Ms. Queen, who informed
her of the victim's the allegations. On hearing about the
abuse, Ms. Cooper became overtly distraught.
Ms. Cooper returned to the front of the office, the defendant
was gone. The police had arrived at the school while Ms.
Cooper was speaking with Ms. Queen, and the defendant fled.
Though, Ms. Cooper did not see the defendant for a few days
after the meeting at the school, they did speak on the phone
later that day. When she confronted the defendant with the
allegations, the defendant remained silent. Ms. Cooper
testified that she did not allow the defendant to return home
after learning of the abuse. The defendant later turned
himself into police.
Jonathan Fields, a police officer with the Memphis Police
Department, testified he was on duty the evening of March 19,
2014, when the defendant came into the station. Officer J. Fields
stated the defendant came in with his uncle and appeared
nervous and upset. Officer J. Fields recounted the
defendant's behavior as follows:
[The defendant] held his hands out, and told [the officer] to
put the cuffs on him, that he wanted to kill himself, because
he had been touching his daughter . . . . He said that he had
been touching on her for a couple of years, and he only did
it when he was intoxicated . . . he didn't have sex with
her, but he touched her underneath her clothes.
the defendant expressed a desire to kill himself, Officer J.
Fields called for the Crisis Intervention Team
SirCrease Fields, a CIT officer, responded to the call
regarding the defendant. Officer S. Fields testified that he
spoke with the defendant, who admitted he had "been
touching his daughter, and . . . making her touch me."
The defendant said that he knew it was wrong and wanted to
kill himself. Based on his initial admissions, the defendant
was taken into protective custody and interviewed. During the
interview, the defendant again reiterated that he wished to
kill himself because he had abused the victim, and the CIT
provided medication and counseling.
jury convicted the defendant as charged. At the sentencing
hearing, the trial court noted the defendant had a history of
criminal behavior based on his daily use of marijuana. When
considering the State's request for consecutive
sentences, the trial court stated:
I do note that in this case that -- I do have some
aggravating factors. Number one, the relationship between the
parties is a very important factor. [It is] her father. The
time span is another thing. This occurred over a lengthy
period of time. And, quite frankly, I also find a third
factor. There was testimony in the trial that she was
contemplating suicide. I have this letter. [I am] not going
to put a great deal of weight on that, but I think the other
two are enough alone, the length of time and the relationship
between the parties. I am concerned a little bit that I [do
not] have any expert proof on the third factor, but [I am]
not going to put a lot of weight on that, but I did hear some
September 22, 2016, the trial court sentenced the defendant
to twenty-five years for rape of a child, ten years for
aggravated sexual battery, ten years for rape, and five years
for incest. The trial court ordered the ten-year sentence for
aggravated sexual battery to run consecutively to the
twenty-five-year sentence for rape of a child, and ordered
the remaining sentences to run concurrently for an effective
sentence of thirty-five years. On September 29, 2016, the
defendant timely filed a motion for a new trial. On May 3,
2017, the trial court entered a written order denying the
motion. The defendant filed a timely notice of appeal.
appeal, the defendant challenges his conviction on five
separate grounds. First, the evidence is insufficient to
sustain his convictions for rape of a child, incest, and
aggravated sexual battery. Second, the State made numerous
inappropriate comments and elicited prejudicial testimony
that rose to the level of plain error and warrant a reversal
of the defendant's conviction. Third, the jury should
have received specific lesser-included offense instructions.
Fourth, the trial court abused its discretion when enhancing
the defendant's sentence. Finally, the errors committed
by the State had a cumulative effect on the trial and
consequentially prejudiced the defendant.