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State v. Lethco

Court of Criminal Appeals of Tennessee, Knoxville

August 29, 2019

STATE OF TENNESSEE
v.
MICHAEL ANDREW LETHCO

          Assigned on Briefs June 25, 2019

          Appeal from the Criminal Court for Monroe County No. 585510 Sandra Donaghy, Judge

         The defendant, Michael Andrew Lethco, was convicted of aggravated sexual battery for which he received a nine-year sentence. On appeal, he challenges the sufficiency of the evidence supporting his conviction and asserts the State elicited improper testimony from the victim regarding other instances of abuse which prejudiced the defendant. Upon our thorough review of the record, we affirm the judgment of the trial court.

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

          Steven B. Ward, Madisonville, Tennessee, for the appellant, Michael Andrew Lethco.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Stephen D. Crump, District Attorney General; and Dorothy Cherry and Clay Collins, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         A Monroe County grand jury indicted the defendant for one count of aggravated sexual battery committed against his nine-year-old daughter, the victim. The crime occurred in 2012, but the victim did not disclose the defendant's abuse until 2014. When the defendant's trial began in 2017, the victim was thirteen years old. At trial, she testified that after her parents separated in 2012, the defendant moved into a one-bedroom apartment for approximately two months. The victim frequently visited the defendant and often spent the night with him. During the visits, the victim slept in the bed with the defendant rather than on the couch in the living room. She slept in Pull-Ups and a t-shirt while the defendant wore "just shorts." The victim testified she did not know why no one slept on the couch in the living room during her visits. However, on cross-examination, she acknowledged there were hornets in the ceiling fan in the living room.

         During one visit, the defendant came to bed as the victim "was about to go to sleep." The victim was lying with her back to the defendant when he "reached over," put his arm around her waist, and "then put his finger in [her] vagina." The defendant did not move his hand while it was in her vagina, but the victim described the act as painful. To make the defendant stop, the victim "rolled over, like away from him."

         The victim stated she did not discuss the incident with the defendant, but she did tell her mother. However, the victim explained she waited "a long time" to tell her mother because she was scared and she "didn't know what was going on." After telling her mother, the victim no longer visited the defendant. The victim also testified the defendant usually snored in his sleep, but he was not snoring before he touched her. The abuse occurred more than once, but the victim did not know how many times it happened. After the defendant began dating someone, the victim no longer slept in the bed with him during her visits.

         The victim's mother, the defendant's ex-wife, stated after they separated in 2012, the defendant rented an apartment on Ball Play Road in Monroe County, Tennessee, for approximately two months. While living at the apartment, the victim visited the defendant "twenty or thirty times." At the time, the victim wore Pull-Ups to bed.

         Though the victim did not disclose the defendant's abuse until 2014, her mother stated the victim mentioned the abuse in passing in 2013. The victim's mother questioned her further and confronted the defendant. The defendant "kind of brushed it off and said nothing happened," and the victim's mother did nothing further. After the victim's disclosure in 2014, her mother reported the abuse to the Department of Children's Services. The victim's mother did not confront the defendant again, and the victim no longer visited him.

         The victim's mother and the defendant divorced in late February or early March 2014. She described the defendant's sleeping habits during their marriage, noting he fell asleep quickly, was a sound sleeper, and snored in his sleep. She also stated the defendant once attempted to have sex with her while he was asleep. The defendant woke up prior to ejaculating and apologized to her.

         Courtney Stapp, a child protective services investigator for the Department of Children's Services, interviewed the victim on March 25, 2014, and set up a forensic interview of the victim on April 9, 2014. Ms. Stapp also interviewed the defendant and the victim's mother. Ms. Stapp could not recall if she questioned the mother about the defendant's sleeping habits. Further, Ms. Stapp did not speak with Samantha Lethco, the defendant's current wife.[1]

         During Ms. Stapp's testimony, the State offered into evidence two recorded interviews of the defendant. The first interview consisted of video footage of Detective Tonia Norwood's initial interview of the defendant. The second interview included a voice recording of the defendant's testimony given during an adjudication hearing in Juvenile Court for Anderson County on July 15, 2014. The trial court provided a limiting instruction to the jury in response to each recording, stating evidence of other crimes mentioned in the recordings "may only ...


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