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State v. Dotson

Court of Criminal Appeals of Tennessee, Jackson

May 10, 2018


          Assigned on Briefs February 6, 2018

          Appeal from the Criminal Court for Shelby County No. 14-06409 W. Mark Ward, Judge

         The 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.

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

          Melody M. Dougherty, Memphis, Tennessee, for the appellant, Gabriel Dotson.

          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 of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.


          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         On 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 dismissed.

         The defendant was charged with abusing his biological daughter, G.D.[1] 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.

         The 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.

         The 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.

         The 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."

         On 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 penis.

         The 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.

         The 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.

         The 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."

         In 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.

         The 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.

         Ms. 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.

         The 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.

         After 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.

         When 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.

         Officer 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.[2] 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.

         Because the defendant expressed a desire to kill himself, Officer J. Fields called for the Crisis Intervention Team ("CIT").

         Officer 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.

         The 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 on those.

         On 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.


         On 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.

         A. Sufficiency ...

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