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State v. Barnett

Court of Criminal Appeals of Tennessee, Jackson

June 3, 2019

STATE OF TENNESSEE
v.
GARY BARNETT

         Assigned on Briefs March 5, 2019

          Appeal from the Criminal Court for Shelby County No. 17-01791 John Wheeler Campbell, Judge

         Following a trial, a Shelby County jury found Defendant, Gary Barnett, guilty of rape of a child and aggravated sexual battery, for which he received an effective sentence of thirty years' incarceration in the Tennessee Department of Correction. On appeal, Defendant contends that: (1) the trial court erred in admitting into evidence the forensic interview of the victim; (2) the trial court erred in restricting defense counsel's cross-examination of two witnesses; and (3) the evidence is insufficient to support his convictions. Following a thorough 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 Bush, District Public Defender; and Barry W. Kuhn (on appeal), Glover Wright, and Courtney Francik (at trial), Assistant District Public Defenders, for the appellant, Gary Barnett.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Senior Attorney General; Amy P. Weirich, District Attorney General; and Lessie Rainey and Jeff Jones, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         Pretrial Motion Hearing

         On April 13, 2017, the Shelby County Grand Jury indicted Defendant for rape of a child and aggravated sexual battery. The State subsequently filed a motion to admit the victim's forensic interview at trial pursuant to Tennessee Code Annotated section 24-7-123. At a hearing on the motion, the victim, C.M., [1] testified that she was thirteen years old and in the eighth grade. She explained that Defendant was her grandfather by marriage. C.M. recalled that, during October 2016, she spent part of her fall break with Defendant at his residence. Following her visit, C.M. was interviewed by Teresa Onry at the Memphis Child Advocacy Center. C.M. explained that the interview with Ms. Onry was recorded. She noted that she was wearing the same shirt at the hearing that she wore during her interview with Ms. Onry. She agreed that, when she spoke to Ms. Onry, Ms. Onry asked her questions, and they talked about things that happened with Defendant. C.M. stated that she previously viewed the recording of her conversation with Ms. Onry, that she recalled her conversation with Ms. Onry, and that she told Ms. Onry the truth. C.M. identified a DVD of her recorded interview with Ms. Onry, saying that she placed her initials on the DVD after viewing it in the prosecutor's office. The DVD was marked for identification as Exhibit 1. C.M. agreed that she would testify truthfully if called to testify at trial.

         On cross-examination, C.M. testified that she was living with her father, stepmother, brother, and sister in October 2016. She agreed that, in the recorded interview, she and Ms. Onry spoke about C.M.'s family and about her biological mother. She agreed she told Ms. Onry that her biological mother "had a baby on the way[.]" C.M. explained that she last spoke to her biological mother "two summers" before the incident that occurred in October 2016. C.M. denied that she ever spoke to her biological mother about the allegations made against Defendant. C.M. stated that she only spoke about the allegations against Defendant one time before her interview with Ms. Onry and "that was at the Rape Crisis Center." She stated that she did not speak to police before the recorded interview with Ms. Onry.

         Teresa Onry testified that she was a forensic interviewer employed by the Memphis Child Advocacy Center. Ms. Onry confirmed that she conducted an interview with C.M. on October 12, 2016. Ms. Onry explained that, prior to her employment at the Child Advocacy Center, she graduated from Tennessee State University with a degree in psychology, and she worked for over eight years at the Tennessee Department of Children's Services. Ms. Onry testified that she had completed the minimum training requirements to work as a forensic interviewer, that she had learned the Corner House Protocol method of forensic interviewing, and that she had actively participated in peer review with regard to her interviews. Ms. Onry explained that the first step of the Corner House Protocol was to build a rapport with the child by talking about things that the child liked to do. She stated:

You [then] want to move into where you're talking about family, that type of thing. Then you go into whether something has happened. You're exploring whether there's going to be a disclosure or not. And at the end, you give the child an opportunity to give any more information. It's basically the closing of the interview.

         Ms. Onry confirmed that she had followed this protocol while interviewing C.M.

         Ms. Onry testified that she reviewed the DVD containing the recorded interview with C.M. before the hearing. She identified Exhibit 1 and stated that it contained the recorded interview she conducted of C.M. on October 12, 2016. Ms. Onry stated that the recording contained the entire interview with C.M., that it was unaltered, and that it truly and accurately depicted C.M.'s complete interview.

         On cross-examination, Ms. Onry acknowledged that, although C.M. stated the abuse had been ongoing "for about four years," C.M. only specifically discussed one incident that occurred a few days before the forensic interview. Ms. Onry agreed that C.M. did not provide contextual details for earlier alleged incidents. Ms. Onry confirmed that forensic interviewers were not supposed to ask leading questions and that a leading question was a question "that ask[s] a child to give a response that the question suggest[s]." When asked about specific questions posed to C.M., Ms. Onry denied asking C.M. any leading questions. Ms. Onry testified that her questions to C.M. were merely "follow-up questions," to which she could have said either yes or no. Ms. Onry explained:

[T]he purpose of this interview is to . . . make sure the child gives a best possible statement of her experience. There are going to be times when those types of questions are asked, and again, my asking that question doesn't suggest to her that this is something that did happen or . . . [that] she should agree with me.

         Following the hearing, the trial court found that the recorded forensic interview was "admissible based on the statute" and that Ms. Onry satisfied the statute and was qualified as a forensic interviewer. The trial court also noted that, at the hearing, the parties stipulated that the Memphis Child Advocacy Center satisfied the relevant statute's requirements. After viewing the recorded forensic interview, the trial court entered a written order, finding "nothing that would . . . prohibit it from being admissible based on the statute[.]"

         Jury Trial

         At Defendant's subsequent trial, Sandra Gunter testified that she had been married to Defendant from 1990 until 1998, when they divorced. Ms. Gunter stated that C.M. was her granddaughter. Ms. Gunter testified that, in 2012, C.M.'s father and stepmother were having marital problems, and C.M. and C.M.'s father moved in with Ms. Gunter and Defendant, who was renting a room in Ms. Gunter's home on Daneman Street. C.M.'s father lived in the residence for about a month and then moved in with two friends. Ms. Gunter explained that C.M.'s father decided it would be best for C.M. to continue living with Ms. Gunter at that time. Eventually, C.M.'s father and stepmother "made amends[, ]" and C.M. began living with her father, stepmother, and sister until their house was destroyed by a fire in February 2015. At that time, C.M. and her family moved back in with Ms. Gunter in her home, and Defendant moved to an assisted living facility. In May 2015, after C.M.'s stepmother had a baby, C.M.'s family moved to Millington, and Ms. Gunter moved in with her brother, who lived in Somerville.

         Ms. Gunter recalled that, in October 2016, she was living in Somerville and working as a hairstylist at Custom Cuts. On the morning of October 8, 2016, she received a telephone call from C.M., while on the way to work. Ms. Gunter recalled that it was around 6:45 or 7:00 a.m. and "extremely early" for C.M. to be calling her on a Saturday morning. Ms. Gunter testified that C.M. was "very, very upset" and "was crying hysterically[.]" Ms. Gunter recalled that C.M. was calling from Defendant's cell phone. Ms. Gunter testified:

She was screaming, "Meemee[2] you've got to come get me, I'm very upset[.]" [S]he was just crying and uncontrollably sobbing. And I didn't understand and I said, "Baby, what's wrong?" And she said, "Meemee I need you, I need you now and something's happened and I'm hurt" and she was rambling, you know.

         C.M. told Ms. Gunter that she was at Defendant's residence. When Ms. Gunter told her that she had to go to work, C.M. continued to cry uncontrollably and said, "[D]o you remember . . . that thing that you always told me if someone touched me, or hurt me, that I should tell you[?]" C.M. told Ms. Gunter that she had locked herself inside Defendant's truck and that she was scared.

         Ms. Gunter testified that she drove to Defendant's apartment and found C.M. hiding behind a dumpster in the parking lot. C.M. was "shaking" and "extremely upset." Ms. Gunter returned the cell phone to Defendant and took C.M. home. On the drive home, C.M. told Ms. Gunter that Defendant "had hurt her and that she was scared[.]" C.M. said, "I can't do this anymore." Once home, C.M. told her father, stepmother, and Ms. Gunter that Defendant "had held her down and raped her." They immediately called police and were instructed to take C.M. to the police station. They were then escorted to the Rape Crisis Center.

         Ms. Gunter stated that, during the time that C.M. lived with her and Defendant, Defendant would babysit C.M. after school because Ms. Gunter had to work late. Ms. Gunter recalled a "very inappropriate" occasion when she came home from work and found Defendant "shirtless" sitting on the couch; C.M. was sitting behind Defendant rubbing his back. Ms. Gunter further recalled that Defendant often bought C.M. things "when he couldn't even afford it[.]"

         On cross-examination, Ms. Gunter stated that she and Defendant remained on good terms after their divorce and that he moved in with Ms. Gunter because of his health problems, sometime between 2010 and 2012. She explained that Defendant had a heart attack in 1999 and agreed that he had arthritis, asthma, COPD, diabetes, and hypertension. She confirmed that Defendant took a lot of medication and did not work due to his health problems. Ms. Gunter testified that Defendant was in the hospital several times from 2010-2012 but stated that "he loved to go to the hospital for pain shots."

         Ms. Gunter testified that C.M.'s biological mother had custody of C.M. until C.M. was five years old. C.M.'s father and stepmother then obtained custody of C.M. until they separated and C.M. and C.M.'s father moved in with Ms. Gunter. C.M.'s father stayed for about a month before moving out and leaving C.M. in the care of her grandmother. After C.M.'s father and stepmother "got back together[, ]" C.M. returned to live with them until the fire destroyed their house. Ms. Gunter acknowledged that she had instructed C.M. that, if anyone touched her inappropriately, C.M. should immediately tell her about it. She agreed that the first time C.M. told her about Defendant's abuse was on October 8, 2016.

         C.M. testified that she was born on June 3, 2004, and that she was fifteen years old at the time of trial. C.M. explained that she had considered Defendant her grandfather during the time of the alleged abuse. C.M. recalled that, when she was eight and nine years old, she lived with Ms. Gunter and Defendant at the house on Daneman Street. She explained that, during the school week, Defendant would watch her after school until 6:00 or 8:00 p.m., depending on the day of the week.

         C.M. recalled the first time that Defendant touched her inappropriately. She explained that "it was like a nice, sunny day" and that she walked home from school. When she got home, Defendant told her to come into his bedroom. He then instructed her to get on the bed and take off her pants and underwear. C.M. testified that Defendant then put his fingers inside her vagina and "rubbed." She recalled that it hurt and that Defendant was rubbing on both the inside and outside of her vagina. Defendant told C.M. that, if she ever told anyone, he would hit her and that she would "go to jail." C.M. explained that Defendant continued to touch her in this manner "[f]requently, mostly every day." C.M. recalled another incident when Defendant told her to "get on [her] hands and knees on the bed[.]" She stated that Defendant got on his knees behind her and put his penis inside her vagina. She also recalled that Defendant had her touch his penis with her hand, stating that she and Defendant were sitting on his bed and that Defendant's pants were "down to his knees and his underwear was down and he had me touch his [penis] with lotion." C.M. said that the lotion came from a dresser in Defendant's bedroom and that, after she touched his penis, white "[s]tuff came out" of it. C.M. recalled that, on other occasions, Defendant put his mouth on her vagina while they were at the house on Daneman Street. She stated that these events occurred during the afternoons before her grandmother got home from work.

         C.M. testified that she continued to see Defendant after he moved to North Lake Apartments, an assisted living facility, on weekends or during school breaks and that the sexual abuse continued during these visits. She stated that, in October 2016, she was visiting Defendant during her fall break. She explained that she went to his residence to "help [Defendant] out with his walking." After having dinner, Defendant told C.M. that he was going to touch her and that she "couldn't stop him." C.M. recalled that Defendant tried to take off her pants but that she would not let him, and she eventually went to sleep. When she woke up, Defendant was on top of her, and his penis was in her vagina. She recalled feeling "pressure" and stated that her pants and underwear were "down to [her] knees" and that it hurt. C.M. testified that she pushed Defendant off of her and locked herself inside the bathroom for two to three hours. Defendant attempted to unlock the door with a knife but was unable to do so. C.M. explained, "[T]hen he left me alone and then after a while I came out and then he took me to breakfast." C.M. recalled that, while returning from breakfast in Defendant's truck, Defendant said that he was "going to touch [her] all through this week." When they returned to his residence, Defendant got out of the truck, leaving his cell phone behind. C.M. locked herself inside the truck. C.M. testified that Defendant came back outside and told her that she needed to come inside. He also hit the window "really hard, trying to break it[.]" Defendant told C.M. that he was going to break it and drag [her] through if [she] didn't come inside." When Defendant went back inside his residence, C.M. got out of the truck, hid behind a dumpster, and called Ms. Gunter. She told Ms. Gunter to "come get [her]" and that "I can't do this anymore." C.M. recalled having a medical examination performed by a nurse and participating in the recorded interview with Ms. Onry about her allegations. She affirmed that she told the truth while speaking to Ms. Onry.

         On cross-examination, C.M. stated that she could recall the first instance of sexual abuse but did not know the particular day, week, or month that it occurred. She agreed that Defendant was not "very active" and that, eventually, he could not "get around" well. She also agreed that Defendant needed help because of his health problems and that she and Ms. Gunter had helped take care of him.

         During cross-examination, defense counsel asked C.M. if she had ever "told a lie" after "swearing an oath to tell the truth." C.M. responded, "Not that I know of." The State then requested a bench conference, where the following exchange occurred:

[THE STATE]: I'm not actually sure, based on those Juvenile Court records that [C.M.] testified in Court. I don't have any record, I don't have a transcript, or any way to. . . .
THE COURT: What I saw [in the Juvenile Court records], I could not tell, clearly, I mean do y'all have a transcript of her testimony[?] You have an order that doesn't make a lot of sense.
[DEFENSE COUNSEL]: What we can show you Judge is the page
that indicates she did testify, if you would like for me to-THE COURT: Well, let me ask you this, it says she did testify, does it say what she said?
[DEFENSE COUNSEL]: No.
THE COURT: Well then, I don't think you can cross-examine on what ...

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