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State v. Green

Court of Criminal Appeals of Tennessee, Knoxville

June 28, 2019

STATE OF TENNESSEE
v.
MICHAEL GREEN

          Session January 23, 2019

          Appeal from the Criminal Court for Knox County No. 105761A Steven W. Sword, Judge

         The Defendant, Michael Green was convicted by a Knox County Criminal Court jury of two counts of aggravated kidnapping, a Class B felony, and two counts of attempted aggravated kidnapping, a Class C felony. T.C.A. §§ 39-12-101(a)(1)-(3) (2018) (criminal attempt); 39-13-304(a) (2018) (aggravated kidnapping). The trial court merged the convictions into a single aggravated kidnapping judgment and sentenced the Defendant, a Range II offender, to fifteen years to be served at 100%. On appeal, the Defendant contends that (1) the evidence is insufficient to support a conviction of aggravated kidnapping or attempted aggravated kidnapping, (2) the trial court erred in denying his motion to dismiss the case due to the lack of a preliminary hearing or for a delayed preliminary hearing, (3) the court erred in denying his motion to suppress his pretrial statement, and (4) the court erred in denying his request for a jury instruction pursuant to State v. White, 362 S.W.3d 559, 578 (Tenn. 2012). Upon review, we affirm the judgment of the trial court.

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

          Gerald L. Gulley, Jr. (at motion for new trial and on appeal), and Robert L. Jolley, Jr. (at trial), and Megan Swain (at trial), Knoxville, Tennessee, for the Appellant, Michael Green.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charme Allen, District Attorney General; Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant's convictions relate to a June 5, 2015 incident involving a female college student in a Knoxville shopping center parking lot.

         At the trial, Knox County Emergency Communications District employee Michael Mays testified that he compiled the records related to the present case. A recording of a 9-1-1 call was played for the jury. In it, a female caller stated that she had just seen two men try to push a woman into the back of a "van" in a parking lot. She said the men were "jumping on the interstate" traveling east. She said the victim had screamed, "Let me go. Let me go." She described the vehicle as an old, rusted, brown "Jeep" or "Bronco." She said that the men "shoved [the victim] in the car," that someone at a Mexican restaurant told the men to release the victim, and that the caller followed them but was unable to obtain a license plate number.

         The twenty-two-year-old victim testified that she had been a college student on the date of the incident and had been working two summer jobs. She said that on the date of the incident, she had gone shopping for dog treats and clothing around 10:00 p.m. She said she went into the store with her wallet, cell phone, identification, and keys. She said her wallet was in her hand. She said she parked a distance from the store because she liked to walk.

         The victim testified that she left the store and unlocked her car with a remote control. She said she noticed a light-colored SUV parked next to her. She said the vehicles faced the same direction, with her driver's side against the SUV's passenger side. She said the SUV's engine was running and someone was sitting inside with the light on. She said the rear passenger side door of the SUV was open and blocked her driver's side door. She said that she saw legs in sweatpants behind the open door and that a man said something like, "Oh, am I in your way." She said she told the person to take his time. She said, "I'm somehow on the ground being choked from behind and all my things are scattered." She said she was on the ground between her car and the SUV. She said a man said, "Shut up, b----. I'll f--- you up." She said that she started screaming and that the man held his hand over her mouth. She said she was unable to reach her keys in order to activate her car alarm or to reach her cell phone. She said that the more she struggled, the more the man choked her. She said, "[H]e said he'll snap my neck if I don't shut up and get in the car." She said that the SUVs back seats were folded down and that the door was still open. She said she was scared and thought she might die or be taken away. She thought she lost consciousness from being choked and said her next memory was being bent over into the SUV with her legs out of the SUV. She said the man in sweatpants pushed against her, held her head down into the carpet, and said something like "grab her" to the other man. She said that she continued to scream and that the man had his hand on her neck and held her by her hair. She said she tried to push herself out of the SUV. She said that someone approached and said something, that the man who had attacked her got into the SUV, and that the SUV drove away. The victim was left at the scene. She said she found her cell phone and sent a text message containing the SUV's license plate number to a friend. She said the license plate number was BGG2398. The victim agreed that the incident occurred "within a couple of minutes." She said that she returned to the store and that two store employees retrieved her wallet from the parking lot. She said she also recovered her keys and the shopping bag containing her purchases. She said nothing was missing from her personal items. She said store employees called 9-1-1.

         The victim testified that her teeth cut the inside of her mouth from the pressure of the man's hand on her mouth. She said she had knots on her head, scratches, and bruises on her arms, legs, and ribs. She agreed that she was examined by paramedics but did not go to a hospital. She said the paramedics told her nothing could be done for her at a hospital. She said her neck was swollen for weeks. She said she participated in counseling. She said she withdrew from school during the fall semester of 2015 and cancelled her classes for the spring semester of 2016 because she was uneasy in crowds, in unfamiliar places, and around unfamiliar people.

         The victim identified a photograph of an SUV with a Virginia license plate. The plate number was VGG2398. She identified a photograph of a bruise on her leg and said the photograph was taken a day or two after the incident. She said she remembered the perpetrator's eyes but could not make a positive identification. She initially said she had identified the driver but then said she was unsure whether she identified him. She thought the incident lasted at least two minutes. She was sure the person inside the SUV was in the driver's seat, not the passenger seat. She said the perpetrator got into the passenger side of the SUV before it drove away.

         The victim acknowledged that she had been arrested for felony shoplifting on January 21, 2016. She said she had been on medication and had made a "stupid mistake." She agreed that she pleaded guilty to a misdemeanor and said she received diversion, which meant the offense would be removed from her record in a few months. When asked if she was cooperating with the State in order to be eligible for a U-Visa, she said that she had not spoken to anyone about her immigration status and that she had a permanent green card.

         The victim testified that she tried to scratch the perpetrator with her fingernails. She agreed the police did not ask for her clothing until the day after the incident. She denied taking anything from the SUV but said something fell from it when she kicked it. She said she told the officers that night about something falling from the SUV but that they did not collect it. The victim drew a diagram of the scene, which was received as an exhibit.

         Knoxville Police Department (KPD) Investigator Michael Washam testified that he assisted his partner, Investigator Clay Madison, in the investigation of this case. Investigator Washam said he and Evidence Technician Tim Schade went to Fort Worth, Texas, to obtain evidence from a 1997 Chevrolet Tahoe SUV that had been recovered. Investigator Washam said the police received information that the Defendant had been in the SUV and that "Mr. Keeney"[1] had been arrested in Texas. Investigator Washam said he provided information to Fort Worth Detective Patrick Henz for a search warrant affidavit relative to the SUV. Investigator Washam said he and Mr. Schade collected evidence from the SUV at the Fort Worth Police impound garage. He identified photographs of the SUV, which were received as exhibits.

         Investigator Washam testified that he flew to Las Vegas, Nevada, on June 18, 2015. He said the police were notified on June 15 that the Defendant was in custody. Investigator Washam stated he provided Las Vegas Police with information for a search warrant affidavit relative to a car that was recovered in Las Vegas and for buccal swabs of the Defendant.

         Investigator Washam testified that he and Las Vegas Police Detective Travis Ivey interviewed the Defendant at the Clark County, Nevada Jail. Investigator Washam identified the Defendant in the courtroom. Investigator Washam said he advised the Defendant of his Miranda rights before the interview. A written waiver of rights form and an audio recording of the interview were received as exhibits.

         The recording of Investigator Washam and Detective Ivey's interview of the Defendant reflects the following: Investigator Washam read the Defendant's Miranda rights and asked the Defendant to sign a document. Investigator Washam told the Defendant that the authorities had video evidence of the Defendant and Mr. Keeney pulling out of a Knoxville shopping center and that a woman had said the Defendant tried to pull her into a vehicle but released her after a struggle. Investigator Washam told the Defendant that the authorities had evidence the Defendant had seen the victim and had waited for her to come out of a store before attacking her. The Defendant said he was confused as to what he was accused of doing. Investigator Washam advised the Defendant, "In Tennessee you are being charged with aggravated kidnapping." The Defendant denied that the incident occurred, and Investigator Washam responded that Mr. Keeney had said otherwise and that Mr. Keeney had said the Defendant intended to rob the victim but not to rape her.

         In the recording, the Defendant stated his understanding that newspaper articles suggested the incident was for "sexual purposes." Investigator Washam told the Defendant that Investigator Washam was talking to him to allow the Defendant the opportunity to confirm Mr. Keeney's statement that the Defendant's intent had been to rob the victim. Investigator Washam noted the Defendant's criminal history in Virginia. The Defendant expressed concern that he had been labeled years ago as "something that I'm not," that he was tired of living with the label, and that he wanted to live in peace. The Defendant said he was perceived to be a sexual predator based upon a sexual encounter he had with a sixteen-year-old girl when he was eighteen. He said he had served twenty-two years before he was paroled. He said that after he was paroled, he started a business and was doing well until he was charged with reckless driving. He said that he was told he would be incarcerated for a parole violation and that he fled Virginia before the incident in the present case. The Defendant acknowledged his other convictions for non-sexual offenses. The Defendant said that, under Virginia law, he was considered a violent sexual offender, had absconded, and would be confined for the rest of his life pursuant to Virginia's civil commitment law.

         In the recording, Detective Ivey reiterated that the Defendant had an opportunity to give his version of the offenses. The Defendant continued to express his dismay that he had been labeled as a sexual offender. Investigator Washam told the Defendant that the Defendant was doing himself a disservice by not making a statement. Investigator Washam said that a Virginia attorney could argue that the incident in Knoxville had not been a sexual offense and that the Defendant was not "Ted Bundy"[2] and had not gone across the country raping and killing women.

         In the recording, the Defendant said the incident did not happen. He said he found out two days before he left Virginia that his reckless driving charge was a Class 1 misdemeanor and would result in a parole violation. He thought he and Mr. Keeney left Virginia on June 3 in Mr. Keeney's gold SUV.

         In the recording, Investigator Washam said that it made a "big difference" for a judge and a jury to know that a defendant had admitted the things for which the defendant was culpable. Investigator Washam asked the Defendant how it would hurt the Defendant to say the incident was not going to be a rape and abduction. The officers informed the Defendant that Mr. Keeney had said robbing the victim had been the Defendant's idea and asked the Defendant why Mr. Keeney would fabricate this. In reference to Mr. Keeney's account of the relevant events, Investigator Washam told the Defendant, "When you leave no other voices to be heard, that's the voice that's going to be heard." The Defendant continued to deny that the incident occurred. Investigator Washam said the victim and another person had provided the license plate number from the gold SUV to the authorities and that the authorities had evidence the Defendant and Mr. Keeney had been in Fort Worth, Texas, together. Investigator Washam encouraged the Defendant, "Tell it the way it was, not how it's being perceived," and stated the Defendant should say the incident was never going to involve rape if that was the case. Investigator Washam said Virginia had the Defendant "painted as the absolute devil" and asked the Defendant why the Defendant should allow this perception to stand. The Defendant protested that there was nothing he could do about it. Investigator Washam said the Defendant could not change the perception of the Defendant in Virginia but that the Defendant could have an effect on how he was perceived by the State of Tennessee.

         In the recording, Investigator Washam advised the Defendant that the Defendant was charged with aggravated kidnapping and said that the charge did not have "a per se sexual connotation" but noted that it appeared from the Defendant's actions that he had grabbed the victim and tried to put her into the SUV.

         In the recording, the Defendant agreed that he left Virginia with about $6000 and said he bought a car in Dallas, Texas, for $2000. He said he had spent a large amount of money on gas during his cross-country trip. He said he and Mr. Keeney had gone to Texas because Mr. Keeney wanted to visit the mother of Mr. Keeney's child. The Defendant said that he had been concerned about his legal status in Virginia and that Mr. Keeney thought they might be able to find a place in Texas to live their lives in peace. The Defendant agreed that he "bailed out" of Mr. Keeney's car when they encountered the authorities in Texas, said he was scratched from going through bushes and thickets afterward, and agreed that Mr. Keeney refused to allow the Defendant into their motel room when the Defendant returned to the motel. The Defendant said he did not sleep much because he was trying to avoid the authorities.

         In the recording, Investigator Washam invited the Defendant to "set the record straight" and told him that in ten years he might regret not making a statement. Investigator Washam again asked the Defendant what he had to lose by making a statement, noted that the authorities knew the Defendant had been present, and said the only thing left to determine was the Defendant's intent. The Defendant continued to maintain that he was "screwed" no matter what he did. Investigator Washam told the Defendant that, despite the legal issues in Virginia, the Defendant had the opportunity to influence the outcome of his Tennessee legal issues. Investigator Washam asked the Defendant why the Defendant would give Virginia "any fuel to the fire" to paint him as "a Bundy" when the Defendant was not. Investigator Washam noted that the victim had said the Defendant tried to push her into a vehicle and said anyone who may have seen the incident from a distance would likely think the Defendant tried to push the victim into the vehicle, even it only appeared this way because the Defendant and the victim were struggling near an open SUV door. Investigator Washam said he had reason to believe that the truth was something other than that the Defendant had tried to push the victim into the SUV but that the Defendant was the only person who could clarify his intent. Investigator Washam said the Defendant was adding to his Ted Bundy image by not clarifying his intent.

         In the recording, Investigator Washam said that their conversation was being recorded and that what the Defendant said "was gonna [sic] get played" and would be "part of the public record of what occurred." The Defendant said, "I'm not that guy," and Investigator Washam invited the Defendant to explain what actually happened.

         Fifty-nine minutes into the recording, the Defendant stated that he had never raped or attempted to rape anyone, nor had he ever wanted to rape anyone. Investigator Washam continued to tell the Defendant that the Defendant had the opportunity to help himself with his Tennessee legal issues by making a statement.

         In the recording, Detective Ivey said the officers were going to collect a sample of the Defendant's DNA. Detective Ivey stated that if the Defendant had not touched the victim, his DNA should not be on her. Investigator Washam said that evidence had been collected from Mr. Keeney's SUV, including from the "carpet by that door" and seatback, and that it would be processed by the Tennessee Bureau of Investigation (TBI) laboratory. Investigator Washam said he thought the testing would detect the presence of the victim's DNA. Investigator Washam said DNA was "absolute" in court. He said that if the victim's DNA were detected, the Defendant was the only person who could provide evidence "that it was not what it looked like."

         In the recording, Investigator Washam stated that the victim had been "scared to death" and had fought. He said the victim thought she was being forced into the SUV. The Defendant asked about the possible length of a sentence for aggravated kidnapping, and Investigator Washam responded that it was based upon a "points system" and that the Defendant had points based upon his Virginia convictions. Investigator Washam said that the range started at eight years and that he thought the maximum was twenty years. Investigator Washam said he had no control over a judge but that he had some influence with a prosecutor because he could tell the prosecutor whether the Defendant admitted or denied relevant facts. The Defendant expressed concern that evidence would be presented during a trial to show he was a registered sex offender, and the officers told him such evidence could not be admitted. Detective Ivey told the Defendant that in Nevada, prior convictions were inadmissible unless the prosecution sought a conviction as a repeat offender.

         In the recording, Investigator Washam said he was asking the Defendant for the truth, rather than a specific story. The Defendant asked what Mr. Keeney was charged with, and Investigator Washam responded that Mr. Keeney was charged with aggravated kidnapping. Investigator Washam said that based upon Mr. Keeney's statement and the Defendant's lack of a statement, it appeared that Mr. Keeney thought the plan was to rob the victim but that the Defendant had a different intent. Investigator Washam noted the evidence that the Defendant had been outside of the SUV but that Mr. Keeney had not.

         In the recording, the Defendant asked what good would result from his making a statement, and Detective Ivey told the Defendant that the victim, not the Defendant, was the victim. Detective Ivey said the twenty-year-old victim had emotional trauma and thought she would be kidnapped, raped, and killed. The Defendant stated that he was not a rapist, and Detective Ivey challenged him to say what had happened. The Defendant expressed concern that whatever he said would be twisted. Investigator Washam said the victim was scared and was undergoing counseling. He said the Defendant was not being fair to the victim.

         In the recording, the Defendant stated that he had always been a person to whom others could come for protection and that he was not being the man he had "prided" himself in being. Investigator Washam said, "Change that." The Defendant asked the officers to tell the victim he was sorry and did not want her to be afraid. He said that he and Mr. Keeney were spending money too quickly and that they decided on a whim to rob the victim because they thought they had an opportunity to get more money to fund their travels. The Defendant acknowledged that he saw the victim arrive and that they waited for her to come back to her car. He said he wanted to get jewelry and cash. He said they did not have any weapons or anything else to help "control the situation." He said that he got out of the driver's seat, that the victim came out of a store, that he had the door open to look as if he were doing something in the back of the SUV, that he said something like "excuse me" and tried to grab the victim's purse as she approached, and that she started screaming. He said he "freaked out" and "tried to shut her up." He said that whenever he released her, she screamed, and that when he held her, he debated whether to hold her or release her. He said he released her after Mr. Keeney stated that people were coming.

         In the recording, the Defendant stated that he and the victim had been on the ground and that he had felt for her necklace but that she had screamed. He said that they somehow ended up leaning into the SUV and that from this point, he could not focus on whether she had jewelry because he was focused on trying to quiet the victim by putting his hand over her mouth and his arm around her throat. He agreed with Investigator Washam's assessment that his motive had been robbery and that the victim fought back "tooth and nail." When the Defendant said the police would not believe him, Detective Ivey stated that he believed the Defendant. The Defendant asked again for Investigator Washam to tell the victim that he was sorry and that she was not targeted for a sexual assault.

         In the recording, Detective Ivey asked the Defendant what happened in Las Vegas and referred to a "chick who called in." The Defendant explained that he had met a homeless woman, who had agreed to rent a motel room and register a car in her name. The Defendant said this was "so we could help each other." He said the woman rented a hotel room in her name for three nights, that he bought food for her, and that he allowed her to drive the car. He said that he stayed in the room for two days. He said that after they had a disagreement about his giving her advice about the things that were being required of her in order to obtain custody of her children, she said she could not stay and left the room. He said the police arrived thereafter. He said he heard someone say that a newspaper clipping stated he had held a homeless woman against her will. Detective Ivey stated that the police had received a call reporting this information but said regarding the caller, "[N]otice she didn't stick around." Detective Ivey speculated that she had fabricated information in order to get a quick police response. The entire interview lasted about one hour and fifty minutes.

         Investigator Washam testified that his intent in interviewing the Defendant was to obtain an admission that the Defendant had been present. Investigator Washam noted that Mr. Keeney had given a statement and that other witnesses identified the SUV as having been at the scene. Investigator Washam said that it did not matter for the purposes of an aggravated kidnapping charge whether the Defendant said the intent had been to commit robbery or rape. Investigator Washam said that the Defendant had already been charged with aggravated kidnapping at the time of the interview and that any admission of intent to commit robbery or rape would have been relevant to a consideration of whether an additional charge should be added.

         Investigator Washam testified that he learned during the investigation that the SUV had been stopped by Texas authorities when the Defendant had been driving. Investigator Washam said the Defendant stated during the interview that the scratches on the Defendant's face were from the Defendant's running through bushes relative to this incident. Investigator Washam said a Las Vegas Police evidence technician searched a red Pontiac that had been attributed to the Defendant in Las Vegas.

         Investigator Washam acknowledged that he told the Defendant during the interview that the Knoxville Police had a video recording of him and Mr. Keeney leaving the parking lot where the incident occurred. He said that Investigator Madison had viewed the recording and had obtained a copy of it. Investigator Washam said the copy Investigator Madison received was faulty. Investigator Washam said that he contacted the owner of the business from which the recording was made three times about obtaining another copy and that by the time he spoke with the owner, the original recording had been overwritten and no longer existed.

         Investigator Washam acknowledged that no investigation was done of the victim's text message to a friend containing the SUV's license plate number. He agreed that no photographs of the victim's neck were taken on the date of the incident. He said the victim and another woman had provided the SUV's license plate number to the police.

         Investigator Washam testified that he was aware that Investigator Madison had obtained a warrant for the Defendant's arrest on June 10, 2015. Investigator Washam said the police had received information from Virginia that identified the Defendant and Mr. Keeney. Investigator Washam said the Defendant was held in Las Vegas on a pending Tennessee warrant and on two Virginia warrants. Investigator Washam said the police received conflicting information about who had been in the SUV's passenger seat during the incident. He agreed that both the Defendant and Mr. Keeney had said the Defendant had been the driver.

         Investigator Washam testified that an evidence technician collected samples for DNA analysis from the portion of the SUV's back seat that the victim identified as where she had been pushed into the SUV. He agreed that the victim's DNA was not identified from the samples collected from the SUV and that no DNA evidence linked the Defendant and the victim or Mr. Keeney and the victim. Investigator Washam acknowledged that he had inaccurately stated when he interviewed the Defendant that incriminating DNA evidence existed and said he had done so in order to obtain truthful information from the Defendant.

         The Defendant testified that he had intended to rob the victim. He said he needed money. He acknowledged his prior criminal history for abduction by deceit, arson, solicitation, and perjury. He acknowledged that he had served twenty-two years in Virginia for a sexual offense committed when he was eighteen years old and that the victim was sixteen. He said he was registered as a sex offender. He agreed that he had been out of prison for about seven months when the relevant events occurred.

         The Defendant testified that he had been harassed by the police after he was released from prison and that he was nervous they would find a reason to return him to prison. He said police officers searched his house two or three times and claimed they had "received calls about this or that." He said the authorities tried to close his business by telling him that he could not advertise with a sign in front of his house. He said the fire marshal eventually "kicked me out" of the house based upon a zoning issue. He said that he had a car wreck and that he was charged with reckless driving. He said he was concerned because a new criminal charge would violate the terms of his parole. He said he left a voicemail message reporting the new charge to his parole officer and "went on the run" because he had spent over half his life in prison and did not want to return.

         The Defendant testified that he reached an agreement with Bobby Keeney whereby the Defendant would purchase a Tahoe SUV that would be titled in Mr. Keeney's name. The Defendant said the plan was that he would use the SUV if he needed to flee and that he would live in the SUV for five or six months or whatever length of time necessary, after which the Defendant would return the SUV to Mr. Keeney. The Defendant said Mr. Keeney would own the SUV "free and clear" after the Defendant finished using it.

         The Defendant testified that when he decided to flee Virginia, the SUV was "full of stuff," with about one and one-half feet left below the roof. He said he removed the electronic ankle monitor he was required to wear as a sex offender. The Defendant said he stopped to pick up Mr. Keeney, who put additional items into the SUV. He said they stayed in the Martinsville, Virginia, area until Mr. Keeney learned that the police had been asking questions about them. The Defendant said their original plan had been to go to Colorado to see a man Mr. Keeney called his father, although the man was not Mr. Keeney's biological father. The Defendant said that they went to Colorado and spoke with the man but that Mr. Keeney did not stay with the man. The Defendant said they went to Texas on the way to Colorado in order for Mr. Keeney to visit the mother of his child and his daughter.

         The Defendant testified that he and Mr. Keeney stopped in Knoxville to purchase gas. The Defendant said he had not heard from his fiancée since that morning. He said their plan was to reunite and for him to "live under her name" after his five or six months of living as a fugitive. He said he called his ex-wife while he was in Knoxville and that he was scared as a result of the conversation. He said he was, at that point, on his own and had lost his chance for a future. He said he was concerned about his finances because he "had nowhere to go" and did not know what he was going to do. He said that he knew the police were searching for the SUV, that he needed somewhere to go and a new identity, and that he did not have enough money to meet his needs. He said he paid $50 to $60 every time he filled the SUV's gas tank.

         The Defendant said he and Mr. Keeney discussed the Defendant's situation and that the Defendant decided to "snatch a purse" to get more money. He said that while they sat in the parking lot where the incident occurred, he saw a woman who parked across the lot away from other cars. He said he drove toward the woman's car and parked with the SUV's passenger side next to the driver's side of her car. He said he turned off the headlights, went to the back passenger door, and pretended to shuffle the SUV's contents in order not to appear suspicious. He said the back of the SUV was still packed full of items.

         The Defendant testified that the victim stopped at the front of her car and that he said something like "excuse me." He said he took a step or two back and noticed the victim's purse between her elbow and her side. He said he waited for her to approach her door and tried to reach for her purse but that it fell to the ground, scattering its contents. He said he looked for a wallet or money but could not see either. He said that the victim started screaming and that "she had slid down against her car into . . . a squat position." He said that he bent over her and tried to put his hand over her mouth to quiet and calm her but that she kept flailing. He said she never stopped screaming except to breathe. He said that the victim kept rocking her head back and forth and that he was in an awkward position. He said he tried to feel her throat for a necklace. He said he thought he was running out of time to take something because she was screaming and other people were in the parking lot. He said that he started to panic, grabbed her arm, pulled her up, and tried to feel for a necklace. He said that the victim "kicked off her car" and that they both fell sideways. He said that he grabbed her arm to try to stop himself from falling but that he fell against the back doorframe of the SUV and that she fell against him. He said that he fell at an angle and that he rolled over her and braced his hands against the SUV to try to get to his feet. He said that he saw the victim reaching for items inside the SUV and that he grabbed her waist and pulled her away from the SUV. He said he "let her go" and had "given up." He said he did not look on the ground for something to steal because he knew he was out of time. He said Mr. Keeney told him that people were coming. The Defendant said the victim stood with a "mean defiant look on her face" after he pulled her away from the SUV and that he walked to the SUV driver's seat and got inside. He denied that the victim ever lost consciousness during the incident and said he never had his hand or arm around her throat. He said he drove away in the wrong direction to leave the parking lot and had to turn around in order to leave.

         The Defendant denied that he tried to put the victim in the back of the SUV. He said the back was full and he was driving and would have been unable to control her. He denied hitting or punching the victim and said he had no intention of hurting her. He said Mr. Keeney remained in the passenger seat during the entire incident. The Defendant said that from the time he attempted ...


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