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McMath v. State

Court of Criminal Appeals of Tennessee, Nashville

June 10, 2019


          Assigned on Briefs December 11, 2018

          Appeal from the Criminal Court for Davidson County No. 2009-A-419 Monte Watkins, Judge

         The petitioner, Denver Joe McMath, Jr., appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial and on appeal. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

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

          Leah R. Wilson, Nashville, Tennessee, for the appellant, Denver Joe McMath, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Camille R. McMullen, JJ., joined.


          J. ROSS DYER, JUDGE.

         Factual Background


         The petitioner was convicted of four counts of aggravated sexual battery and four counts of rape of a child for which he received an effective sentence of 140 years. On direct appeal of his convictions, this Court summarized the relevant facts as follows:

The victim was born on September 5, 1990. [The petitioner] was her mother's boyfriend and the father of her younger half-brother. At the time of the crimes, the victim lived with [the petitioner], her mother, her half-brother, her two sisters, and her older brother.
The victim recalled that the first incident happened during the winter of her fourth grade year. She testified that [the petitioner] told her to come into his bedroom and sit beside him on the bed. [The petitioner] kissed the victim, inserting his tongue into her mouth, and then gave her some coloring books. On another occasion, [the petitioner] went into the victim's bedroom and touched her breasts, with his hand on top of her clothes, while she was sleeping in her bed. The victim testified that one night, "late at night," [the petitioner] went into her bedroom where she and her twin sister were sleeping, and performed oral sex on her. She testified that [the petitioner] pulled her pants down and put his mouth on her vagina.
The victim recalled an incident when she was in the sixth grade and [the petitioner] made her perform oral sex on him in the laundry room of their house. The victim did not know what oral sex was, and [the petitioner] told her to "put [her] mouth on it, and [she] had no choice." The victim testified that it happened "[a] lot." She testified that [the petitioner] ejaculated in her mouth. She testified that she was afraid that if she did not do as [the petitioner] told her, [the petitioner] would beat her. She testified, "he always beat[ ] us." The victim testified that she could not count the number of times she performed oral sex on [the petitioner]. She recalled the incident in the laundry room and another occasion in the kitchen. On one occasion, her older brother walked into the laundry room while the victim was performing oral sex on [the petitioner], and [the petitioner] "just started beating him."
The victim also testified that [the petitioner] called her downstairs to watch pornography with him. She testified that [the petitioner] was masturbating while watching two people on television have sex. [The petitioner] then told the victim to go to the laundry room, where he made her perform oral sex on him. She testified, "[o]ne time, he had called me downstairs and he was rolling up weed and then he smoked it and then told me to smoke it." The victim smoked the marijuana and then went upstairs, but she was not feeling "normal" and she thought she was "high." [The petitioner] called her back downstairs and made her perform oral sex on him.
On another occasion, the victim fell asleep in her mother's bedroom while watching her youngest brother while her mother was at work. She awoke to [the petitioner] touching her. The victim recalled another incident when [the petitioner] touched her chest in the living room. She testified, "[I] was just scared and I told him -- I told him that I was going to tell my mother and he said [']you tell [, ] I'm going to kill you.[']"
The victim testified that the abuse ended when she was in eighth grade after the family moved to another residence. [The petitioner] "stayed there on and off." The victim's older brother told the victim's mother about the abuse when the victim was in the tenth grade.
The victim's older brother testified that [the petitioner] physically abused him as a child. He recalled an incident when his mother was in the hospital giving birth to his younger brother, and [the petitioner] told him to watch for a cab that was coming to pick him up. After waiting for awhile and not seeing a cab, he went upstairs to tell [the petitioner]. When he walked inside the bedroom he saw [the petitioner] "on the bed with his thang out and [the victim] was in the room with him." He testified that [the petitioner]'s penis was erect. On another occasion, at 2:30 or 3:00 a.m., the victim's brother saw [the petitioner] "on top of [the victim] giving her oral sex" in the living room. On another occasion, the victim's brother was outside and he saw [the petitioner] and the victim through the window in the laundry room. He ...

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