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Hochhalter v. State

Court of Criminal Appeals of Tennessee, Nashville

August 6, 2019


          Session March 19, 2019

          Appeal from the Criminal Court for Davidson County No. 2012-B-1816 Steve R. Dozier, Judge

         The petitioner, Darrell Dean Hochhalter, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

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

          Patrick T. McNally, Nashville, Tennessee, for the appellant, Darrell Dean Hochhalter.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn Funk, District Attorney General; and Tammy Meade, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, J.J., joined.


          J. ROSS DYER, JUDGE.

         A Davidson County jury convicted the petitioner of six counts of sexual battery by an authority figure and one count of rape, for which he received an effective sentence of twenty-two years. State v. Darrell Dean Hochhalter, No. M2014-01106-CCA-R3-CD, 2015 WL 4556917, at *1 (Tenn. Crim. App. July 29, 2015), perm. app. denied (October 15, 2015). On direct appeal, the petitioner challenged the trial court's admission of the forensic interview of the victim at trial, the sufficiency of the evidence supporting his convictions, and his sentence. Id. This Court summarized the underlying facts leading to the petitioner's convictions, as follows:

This case arises out of the [petitioner's] numerous and various sexual encounters with his daughter, the victim, which occurred between April 22, 2008 and April 16, 2010. As a result, he was indicted for seven counts of sexual battery by an authority figure, one of which was dismissed before trial, as well as one count of rape. The [petitioner's] wife was charged with one count of facilitation of sexual battery by an authority figure, but her case was severed from the [petitioner's].
At trial, the victim, who was nineteen years old at the time of trial, testified that the [petitioner] was her father, and she had a sister who was four years younger than she. During the time period in question, her mother left for work around 8:30 a.m. and returned home around 5:00 or 6:00 p.m. The [petitioner] worked nights, leaving the home around 2:00 a.m. and returning around 9:00 a.m. Her grandmother also lived in the home, but she primarily stayed in her room downstairs or in the living room and kitchen on the main level. She rarely went to the upstairs level, where the bedrooms were located.
The victim said that she was homeschooled in the sixth grade by the [petitioner], but she returned to school for seventh and most of eighth grade. In April or May 2008, during her eighth grade year when she was thirteen years old, the [petitioner] withdrew the victim from school because the victim began cutting herself. The [petitioner] believed the victim's friends were a bad influence on her.
The victim said that she and the [petitioner] had "a great relationship" when she was little, but they grew apart as she became a teenager and wanted to be with her friends. During the time the [petitioner] homeschooled her after withdrawing her from the eighth grade, the victim's and [petitioner's] relationship "was strained but [they] were really close." She elaborated that the [petitioner] "was just trying to relearn [her]."
The victim recalled that, following her removal from school, the [petitioner] would wait in the bathroom while she showered, so he could check her legs afterwards to make sure she had not cut herself. The victim denied that the [petitioner] ever got in the shower with her or touched her in the shower. The victim acknowledged having previously told others that the [petitioner] had taken showers with her in order to conserve water and to make sure she was not cutting herself. She also acknowledged having previously told others that the [petitioner] "would grab [her] boob or smack [her] butt in the shower." The victim denied that the [petitioner] ever got in the bathtub with her. However, she acknowledged previously stating on a number of occasions, including under oath, that the [petitioner] had done so.
After completing her homeschooled eighth grade year, the victim began attending Nashville School of the Arts ("NSA"), and the [petitioner] visited her at school. Someone from the Department of Children's Services ("DCS") spoke with the victim about concerns that had been raised at school concerning her relationship with the [petitioner]. Rumors were going around the school that she had been "making out" with the [petitioner]. The victim told the DCS worker that nothing had happened and that they were just "a very eccentric family." The victim acknowledged that her mother told her to tell DCS that nothing happened in order to protect their family. However, she explained that her mother was referring to the [petitioner's] grabbing her breasts and checking her hymen -the only two things she admitted actually happened. After DCS became involved, the victim's parents blamed her for telling her friends about the sexual abuse, and her parents discussed moving out of state to prevent the [petitioner] from going to prison. The victim recalled that her parents talked about how the victim's "inability to stay quiet about things happening" was going to have legal repercussions.
The victim acknowledged previously stating that she made the decision to disclose the abuse in 2011 because she was worried about her younger sister. At the time of the disclosure, the victim's sister was the same age that the victim had been when the abuse started, and the victim's sister was also being homeschooled. At trial, however, the victim testified, "It wasn't really a concern about sexual abuse, it was just a convenient thing that fit in with my story."
The victim agreed that she had been fearful her mother and sister would blame her if the [petitioner] went to jail, and she was worried about breaking up her family. However, she acknowledged that she had not broken up her family because, at the time of trial, she was living with her mother, her parents were still together, and she saw the [petitioner] occasionally even though he was not supposed to be around her. However, she denied that the [petitioner] came to her house when she was present. Asked if she wanted to be reunited with the [petitioner] and the family, she responded, "Maybe after a lot of counseling."
The victim claimed that she told stories about the [petitioner's] molesting her in order to make friends at school. She told her friends that she had taken showers and "naked naps" with her father. She elaborated that she told her friends that her father groped her breasts and buttocks during the showers and that he had erections during the naps. She also told them that, on one occasion, the [petitioner] tried to digitally penetrate her vagina. She explained that the [petitioner] "felt down there to see if [she] was aroused" and asked if she "was wet."
The victim stated that, in the tenth grade, she got caught performing oral sex on her boyfriend and was taken out of school. After that, she "used the stories that [she] had been telling [about the [petitioner]] to get out of the house because [she] wanted to be with [her] boyfriend at that time." She said that, after the incident with her boyfriend, the [petitioner] developed "all of these rules" and "beat[ ] the crap out of [her] every morning," so she did not want to be at home and used the stories she had told her friends over the years to get out of the house. She stated that she told Jenny White, her former youth leader, about the alleged abuse because she was afraid of not being able to see her boyfriend again. However, she acknowledged that a few days before she disclosed the abuse to Ms. White, her family had dinner with her boyfriend's family and agreed that she would be able to return to school.
The victim testified that she kept a journal in which she recorded some of the allegations that she told other people. However, she clarified that she "had gone back and written those in." She kept the journal from the ages of thirteen to sixteen, or from the eighth to the tenth grade. She elaborated that she had a "rough draft journal and a final draft journal." The rough draft journal had "all [her] sloppy writing and all of [her] little side notes. And there were pages between them." She later rewrote the journal to look nice so she could give it to her children one day. She claimed that her friends wanted to read her journal, so she "slipped in stuff from [her] stories . . . so it would seem more believable."

         The victim read a journal entry dated April 6, 2010, in which she noted that one of her boyfriends "was confronting my dad about the molestation thing. I tried to tell [him] that my dad is a good and honest man; he's confused. He's just ignored me of course." She then read another entry that read: "The [D]epartment of Child Services showed up to talk to me at school. Family isn't in trouble but they will document their visit with the family. We didn't tell them any of the things they would consider indecent." The victim then read another post, dated May 14, 2010, that read:

DCS is coming to see me at school again today. Apparently either "Jade" or Principal Bob are sending letters to them about dad so they have to interview us again . . . but they believe we are innocent. Mom's getting pissed. She says it's harassment so she's going to try to sue Principal Bob for his job if this keeps happening.

         The victim testified that after she was caught performing oral sex on her boyfriend at school, she and her boyfriend were taken to the principal's office and given three days suspension each. She recalled that the [petitioner] was "incredibly pissed off." Although the victim was only suspended for three days, the [petitioner] kept her out of school for five days. During that time, the victim had to stay in her room, and "every morning . . . [the [petitioner] would . . . beat the crap out of [her]." He made her hold onto a bedpost while he beat her with a belt. He told her that he would smack her hand if she let go of the bedpost. He called her "white trash" and said that she "would never amount to anything." The victim sustained bruises from her mid-back to her knees from the beating. After the beatings, the victim went into the bathroom while the [petitioner] showered, and they talked. She recalled that the [petitioner] talked about "how he was going to kill [her boyfriend] and [her boyfriend]'s dad, and the usual, just he was pissed." When the victim was hungry and asked for food, the [petitioner] gave her bread, peanut butter and water, which was the only food she had for several days. As a chore, for punishment, she had to carry cinderblocks or logs back and forth across the yard. She understood that she was being punished because she "had given [her] boyfriend a blow job and that is not what Christian girls do."

         After the five days had passed, the [petitioner] allowed the victim to return to school, as well as to church and see her youth leader, Jenny White. The victim told Ms. White that her father had locked her in her room for five days and beaten her every day. She also told Ms. White the same things that she had told her friends about the [petitioner's] molesting her when she was being homeschooled in the eighth grade. The victim admitted that she detailed to Ms. White that the [petitioner] had taken showers with her, touched her private areas, and pressed his penis against her body. She admitted that she additionally told Ms. White that the [petitioner] had made her sleep naked with him and touched her on several occasions when that happened. After the victim talked to Ms. White, Ms. White told her that she was legally obligated to report the [petitioner's] conduct. The victim admitted that she never recanted her story to Ms. White.

         Following the disclosure to Ms. White, the victim spoke with a detective and told him the same things she had told Ms. White. She agreed to make a controlled phone call to the [petitioner] because the detective told her that "[i]t would help with the case and with removing [her] from the house." The victim recalled that she later participated in a forensic interview, which was audio and video recorded. She also testified in juvenile court on July 11, 2011, and February 21, 2012.

         The victim then read a journal entry from April 12, 2011, in which she said:

[The petitioner] just burst in my room and said I can never kiss him again or even come within an arm's reach of him. And he said that if [my boyfriend] comes anywhere near me or comes anywhere near he will castrate him and shove [my boyfriend]'s nuts down his dad's father's throat. It just [sic] me off because he threatened [my boyfriend] and [his father]. I have a lot of respect for [my boyfriend]'s family so it's like he threatened my own family when he said that.
Then [the petitioner] went on a rant about different ways to kill [my boyfriend]. One of them was [he] could drive a sword through his stomach, pull upwards to his chest and then let go of the sword. [My boyfriend] would take a sharp last breath and the pulling of air into his lungs would pull the sword deeper into his body. [He] would watch the life leave his eyes and pull the sword back out of his chest.
The victim read another excerpt from her journal, dated April 26, 2011, in which she noted that the [petitioner] had become more protective of her since "he pulled [her] out of eight[h] grade for cutting" but that "he did a lot of things that tour [sic] us apart." The excerpt further noted that she realized her mother and father "blame[d] it on [her], but if they had just let [her] get through the phase on [her] own or if [the petitioner] had not molested [her] then [she] would be normal."

         Another journal excerpt from April 26, 2011, read:

So today when I was in the car with Jenny [White] she asked me how things are at home. A voice in the back of my head just started to shout that I needed to tell her everything. I was pretty calm about it, that comes with having told the story ten times I guess. After I finished telling her everything; she pulled up to the youth group parking lot and told me that she was legally obligated to call DCS.
She asked to talk to Pastor Todd about it first and find out what's going to happen. She will talk to me before she does anything because I have questions and requests. I don't know whenever someone says abuse, I always think broken bones and rape, not this stuff. I wouldn't have told her, but I don't want [my sister] to go through the same stuff.
I can deal [with] two more years of it, but I don't want her to experience it. She will hate me for taking mom and dad away, but I hope when she's older that she will forgive me.
Mom always said that my first concern should be to protect the family. I tried to keep us together. I have lied to government officials and I hid secrets for four years.

         At trial, the victim claimed that the events of which she told Ms. White did not occur.

         The victim testified that after her allegations came out, she was placed in the home of an acquaintance from church. She also saw a sex therapist, Shana Frank, at the Nashville Children's Alliance for about a year. During the course of her therapy, the victim never told Ms. Frank that the abuse did not happen. The victim talked to Ms. Frank about the fact that her mother continued to allow the [petitioner] to have contact with her after learning that he was sexually molesting her in the eighth grade. She said that her mother had "good intentions for everything" that happened after the incident between the victim and her boyfriend, explaining that her mother said the [petitioner] "was blowing off steam" during the time he beat her and kept her in her room. However, the victim told Ms. Frank that she wanted to resume a relationship with her mother. The victim stated that she felt extremely guilty about her parents being in court and acknowledged that both of her parents had told her that the problems in their family were her fault.

         The victim testified that shortly after she turned eighteen, she returned to live with her mother. The victim admitted that she met with the prosecutor and said that she was concerned about her mother, but she knew that her father had to have some accountability for what he did.

         The victim acknowledged having previously told a forensic examiner and testifying at juvenile court on two occasions that the [petitioner] had committed sexual acts on her, starting at the age of twelve or thirteen. Among those actions, the victim had said that the [petitioner] got in the shower with her about every other day "to conserve water and to rebuild the tender bond that [they] had from when [she] w[as] a young child." She acknowledged previously stating that when the [petitioner] got in the shower with her, he would grab her breasts, "feel her up," and have erections. She acknowledged stating that the [petitioner] would hug her and that she would feel his erection against her. She said that on one occasion, the [petitioner] had pre-ejaculate on his penis, which he said never happened with the victim's mother. She acknowledged previously stating that, after the showers, she would take "naked naps" with the [petitioner]. She said that they would "spoon" during those naps, which the [petitioner] called "making love notes by intertwining [their] legs together" and that he would usually fall asleep with his hand on her breast. However, the victim denied that any of those statements were true.

         The victim further acknowledged having previously stated, but now said that it was untrue, that the [petitioner] often got erections during their naps together. She also admitted previously stating, but that it was untrue, that, during one naked nap, the [petitioner] woke up with an erection, got on top of her, touched her private area to see "if it was wet and said . . . you're horny too." She had also said that during that same incident, the [petitioner] moved his hand around and made grunting noises, for which he apologized, but that was also untrue. Another statement the victim admitted previously making but now said was untrue was that on a couple of occasions, the [petitioner] filled the bathtub with water and had her lay on top of him, after which he started thrusting or "humping" his penis against her body.

         The victim testified that it was true that the [petitioner] checked her hymen on one occasion during her eighth grade year when she was being homeschooled. She elaborated that she had to have a kidney removed when she was three years old, and she and the [petitioner] were concerned that the surgery had taken her virginity. She explained:

One of the surgeries they couldn't [get] all of the surgical tools up my vagina so they had to make a little incision in my hymen to fit everything in there. And that's always been something that's kind of been a concern. I never knew it happened until dad mentioned it one day.
And so I was always really worried about it because virginity is a really big deal in our house. And so we looked. We decided to figure out what was going on because I can't see with a mirror. I didn't know what I was looking for.

         The victim stated that she lay on the bed, held "everything open," and the [petitioner] "checked real quick." The [petitioner] determined that "it was still intact." The [petitioner] told her that "[t]here was just like a little V cut [out] of it or something, and that it would hurt whenever I lost my virginity." The victim recalled that the incident was "really awkward and uncomfortable." The [petitioner] also later told her that she "had a lot of vagina" and asked whether she was a hermaphrodite. The victim denied that the [petitioner] touched her vagina and moved his hand around until she told him that it was uncomfortable. She explained that, instead, she spread her genitals apart for the [petitioner] to look. The victim admitted that the [petitioner] told her not to tell her mother or other people about his playfully grabbing her breasts or checking her hymen because people would think it was sexual abuse. The victim acknowledged that the [petitioner's] action of checking her hymen was inappropriate and "really weird," but she claimed "there was nothing sexual about it."

         The victim admitted that the [petitioner] discussed his and her mother's sex life and told her about her mother's fetishes. The [petitioner] told the victim that she "stressed him out," which caused his blood pressure to rise such that he had to be on medication. According to the victim, one of the [petitioner's] medications caused him to easily get erections. However, the victim stated that the [petitioner] told her that his erections with her caused him to have problems getting erections with her mother. She acknowledged that the [petitioner] said that he did not have sex with his wife because of her. The victim elaborated:

[W]hat I know is that I was stressing dad out and he had blood pressure problems. And he got on Cialis and he was still having problems having sex with mom. But when he was around the house just hanging out and I was at the house, it would happen. The victim denied ever seeing the [petitioner] with an erection despite having previously said that she had.

         The victim testified that the [petitioner] came to school to have lunch with her once or twice a week and people started spreading rumors about them. One rumor was that she "was making out with [her] dad on the back of a motorcycle." Thereafter, the [petitioner] stopping (sic) visiting her for lunch so often.

         The victim acknowledged telling prosecutors on the morning of the trial that the [petitioner] had touched her inappropriately. She discussed with the prosecutors how the [petitioner] had showered with her and touched her breasts and buttocks in the shower. She also discussed that the [petitioner] got erections. She referred to the [petitioner's] having pre-ejaculate on his penis and stated that she had asked him about it. The [petitioner] told her that he did not know what it was because he had never experienced it with the victim's mother. The victim told prosecutors that the [petitioner] masturbated in the shower when she was in the room. One time, the [petitioner] filled the bathtub with water and made the victim lie on top of him while he had an erection. The victim discussed taking "naked naps" with the [petitioner] and his touching her breasts and buttocks. She explained that the [petitioner] "spooned" her in bed, that his penis came in contact with her, and that he sometimes got erections. The victim discussed with the prosecutor a particularly upsetting incident when she woke up and the [petitioner] had an erection. She elaborated that "things got out of hand," and the [petitioner] got on top of her and "started feeling [her] up." He asked her "if [she] was wet," and she rolled out from underneath him, told him to stop, and left the room. She told the prosecutors that she and the [petitioner] later talked about it, and he apologized.

         The victim acknowledged that, during her conversation with the prosecutor right before the trial, she asked the prosecutor how long of a sentence the [petitioner] faced. Asked why she did not recant then, the victim responded, "Because everybody has an agenda. And . . . I'm just . . . tired of having a bunch of attorneys tell me what to do[.]" She stated that she did not want the guilt of having her father "go to jail when he didn't do most of the stuff." However, she stated that "[t]here is some stuff he did do that was really wrong, but I'm not going to keep making lies." She acknowledged that the prosecutor did not ask her to embellish the truth.

         The victim testified that, even though she told several people about numerous allegations of molestation, even as recently as the morning of trial, the stories were all fabricated. The victim admitted that, in sum, she had told the guidance counsel at NSA, a DCS worker, a forensic interviewer, and an attorney from the district attorney's office that the [petitioner] molested her. She explained that her testimony was different now because she was an adult and understood that there were consequences for lying under oath. The victim admitted ...

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