Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs October 30, 2018
from the Criminal Court for Knox County No. 107932 Steven
Wayne Sword, Judge
County Criminal Court Jury convicted the Appellant, David
William Gary, of rape, and the trial court sentenced him to
ten years in the Tennessee Department of Correction. On
appeal, the Appellant contends that the evidence is
insufficient to sustain his conviction, that the trial court
erred by allowing testimony regarding his expressed interest
in a specific type of sexual activity, and that the trial
court erred by refusing to allow him to present evidence that
a police investigator improperly influenced the victim's
preliminary hearing testimony. Upon review, we affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Liddell Kirk (on appeal) and Eric M. Counts (at trial),
Knoxville, Tennessee, for the Appellant, David William Gary.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel; Charme P. Allen, District Attorney
General; and Leslie Nassios, Assistant District Attorney
General, for the Appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Camille R. McMullen and Timothy L. Easter, JJ., joined.
MCGEE OGLE, JUDGE
Knox County Grand Jury indicted the Appellant for attempted
first degree murder and aggravated rape. The victim of both
offenses was B.T. The charges stemmed from an incident that
occurred at the Inn of Knoxville on the morning of November
17, 2015. The jury convicted the Appellant of the
lesser-included offense of rape, and the trial court
sentenced him as a Range I, standard offender to ten years in
the Tennessee Department of Correction. The jury acquitted
the Appellant of attempted first degree murder and could not
reach a verdict on a lesser-included offense. The Appellant
later pled guilty to aggravated assault and received a
concurrent sentence of three years.
trial, the thirty-five-year-old victim testified that in
November 2015, she was living with her twin sister in an
apartment in Knoxville. The victim and her sister were
prostitutes, and the victim knew the Appellant because he had
been to their apartment, had paid to have anal sex with her
sister "on a regular basis," and had paid the
victim one time to have vaginal sex with him after she had
refused to have anal sex.
victim said that on the morning of November 17, 2015, some
friends left her at the Regency Inn on Magnolia Avenue. She
began walking on "5th or Woodbine," and the
Appellant stopped his vehicle and asked if she needed a ride.
The victim got into the Appellant's vehicle. He asked her
to contact her sister because he wanted to engage in anal
sex, but the victim was unable to contact her sister. The
victim told the Appellant "very clearly" that she
would not engage in anal sex, and he offered to pay her for
vaginal sex. The victim agreed, and the Appellant asked where
they could go. At the victim's suggestion, they stopped
at the Inn of Knoxville. Before they left the vehicle, the
Appellant paid the victim sixty dollars and told her to leave
her belongings in his vehicle. The victim complied and led
the Appellant into the laundry room because she knew the room
did not have security cameras.
victim said that they went into the laundry room and that the
Appellant stood behind her and penetrated her vagina with his
penis. The victim said that the Appellant then penetrated her
anus with his penis "as hard as he could" and that
she began to bleed. She screamed and begged him to stop, but
he refused. He put his hand over her mouth and told her to
"[s]hut up and stay still." Afterward, he told her
to "wipe off" with a towel that was in the laundry
room. The victim cried as they walked back to the
Appellant's vehicle. She told him that she was going to
call the police because "that wasn't agreed
upon." The Appellant did not respond but was clearly
victim said that the Appellant got into the driver's side
of his vehicle and that she went to the passenger side to get
her belongings. The Appellant rolled down the passenger-side
window but would not unlock the door. The victim reached
through the window, unlocked the door, and grabbed her
leather coat and purse. The victim said that the Appellant
"pull[ed] off real fast." The victim yelled at the
Appellant and again threatened to call the police. The
Appellant stopped his vehicle in the parking lot, got out,
and ran toward the victim. The victim thought the Appellant
was going to hit her and said, "Please, I've got
kids." She did not see the Appellant with a knife but
felt him stab her in the abdomen. He immediately ran back to
his vehicle and drove away.
the victim did not realize she was seriously injured. She
said, "I had three people walk over me and wouldn't
help me at all." She tried to call 911 but was unable to
complete the call because her hands were too bloody, and she
was "holding [her] stomach in." She managed to call
her friend, Tina Hackler, whose number was on "speed
dial." She told Hackler that she had been raped and
stabbed and asked her to come to the motel. The victim walked
toward the motel office and collapsed on the sidewalk outside
victim said that Hackler found her on the ground outside the
office. The victim asked Hackler not to call anyone because
she "just wanted to die," but Hackler called 911.
The State played a recording of the 911 call, and the victim
said she was "the person who's screaming in the
background." She acknowledged that before the ambulance
arrived, she offered Hackler money to get crack cocaine for
her. The victim surmised that she asked for the crack cocaine
because she was "in shock" and had been addicted to
drugs since she became a prostitute when she was fifteen
years old. Hackler remained with the victim until the
victim testified that she was hospitalized for four days.
During her hospitalization, a sexual assault examination was
performed, and she had "exploratory surgery" that
involved an incision "from [her] breast bone to [her]
pelvic [bone]." She was given five or six pints of blood
and "a lot" of pain medication. The victim did not
recall talking with a police officer or with April Freeman, a
sexual assault nurse examiner. At the time of trial, the
victim said that she had "healed on the outside"
but that she continued to suffer mentally and had pain,
nightmares, and difficulty eating.
victim said that she identified the Appellant from a
photograph lineup and at the preliminary hearing. The victim
denied taking the Appellant's wallet. She acknowledged
that she had been arrested previously and said that during
one of the arrests, she panicked and gave the police her
sister's name. She said she told the officers the truth
"before we ever drove off." The victim acknowledged
that she had been convicted of criminal impersonation and
victim said that before trial, she was living "on the
streets. . . . I was actually in Memphis." The State
provided a bus ticket for her to return to Knoxville. The
State also promised to set aside an attachment that had been
issued after she failed to appear in sessions court in
another case. She said that case was still pending.
cross-examination, the victim acknowledged that she had been
drinking alcohol before the offense. The victim explained,
"I was drinking earlier that night, the night before or
morning. . . . I have no clue what time it was. It was the
night before, because I had sobered up, and [my friend] was
going to drop me off."
victim acknowledged that she testified at the preliminary
hearing that she had to have stitches because of the anal
penetration. However, she later discovered that she did not
need stitches. The victim said she was heavily medicated at
the time of her sexual assault examination and did not recall
telling the nurse examiner that she met the Appellant for
victim said that the Appellant usually paid one hundred
dollars for sex, that she had agreed to have oral and vaginal
sex with him only one time before the offense, and that he
had paid her one hundred dollars. However, on the day of the
offense, he told her that he would pay her only sixty dollars
because she had refused to engage in anal sex. She denied
that the Appellant initially paid her forty dollars for
vaginal sex and later paid her an additional twenty dollars
for anal sex. The victim could not recall if she had oral sex
with the Appellant on the day of the offense. She
acknowledged that she "probably" used narcotics the
night before the offense, explaining that she was an addict.
victim did not recall the Appellant saying anything when he
stabbed her. She said that after the Appellant got out of his
vehicle, he "ran at [her] like a football player,"
stabbed her, ran back to his vehicle, and quickly drove away.
She thought he stabbed her because she was threatening to
tell the police he raped her. The victim said that at the
time of the offense, she did not have a kitchen knife or any
type of weapon in her possession.
victim "vaguely remember[ed]" seeing Investigator
Chas Terry in the hospital, noting, "I was heavily
medicated. There's a lot of stuff that is very choppy
after I got stabbed." She did not recall telling
Investigator Terry that the Appellant threatened to kill her
before he stabbed her. The victim denied telling Hackler that
"this was about money" and stated that
"it's never been about money."
Trevino testified that she worked as a dental hygienist at
Aspen Dental in Sevierville for almost two years. In November
2015, the Appellant had been working there for six months.
While conducting an examination on November 16, 2015, the
Appellant showed a patient's father a knife he had just
purchased. The knife was approximately eight or nine inches
long and had a black handle and a black blade. The Appellant
mentioned that he "really liked the . . . safety feature
that it had [because] it didn't lock as you use the
knife." Trevino asked the Appellant why he brought the
knife to work, and the Appellant responded, "You never
know when you might need one." Trevino said that she
"didn't believe a lot of stuff [the Appellant] would
say" and that she thought he was "[p]robably not
Newman, the lab manager at Aspen Dental, testified that in
November 2015, he had worked with the Appellant for
approximately six months and that they were friends. The
Appellant told Newman that he had a "collection of
firearms." Occasionally, the men sat in the
Appellant's dark brown Porsche Cayenne, and the Appellant
showed Newman some of his firearms. Newman knew the Appellant
also had a few knives. Specifically, Newman recalled that
during the weekend before the incident, the Appellant had
purchased a knife. He brought the knife to work on November
16. The knife was black, approximately six inches long, and
in the Appellant's pocket. The Appellant told Newman the
knife had safety features that prevented "it from
closing up on your hand."
said that when he arrived at work on the morning of November
17, he saw the Appellant in the parking lot behind the
building. The Appellant was "wiping the knife down"
with a white cotton towel that looked like the ones used by
Aspen Dental. Newman spoke to the Appellant and went inside
the building. Shortly thereafter, the Appellant came inside
the building, and the two men ate breakfast in the breakroom.
Newman did not notice anything unusual about the
Appellant's behavior or their conversation.
said that around 4:00 p.m., he heard a report on the radio
that the police were looking for a man driving a Porsche who
had stabbed a woman that morning. Newman recalled seeing the
Appellant with a knife and jokingly told the Appellant that
the police must be looking for him. The Appellant
"[s]tarted running around looking out the back door,
and-and just was really nervous and totally opposite of what
his normal demeanor was."
said that in response to the Appellant's erratic
behavior, he got on the internet to look for more details
about the suspect. Newman learned the police were searching
for "a black man driving a Porsche Cayenne," and he
became suspicious of the Appellant. About 6:30 p.m., the
Appellant "disappeared from work for a little
while" and he was sweating when he returned.
next morning, the Appellant sent Newman a text message
stating that he had spent the previous night with his
daughter, who was in a hospital. The text message included a
photograph of the Appellant's daughter in the hospital.
Newman said that on November 20, Aspen Dental's regional
manager advised the employees to stay away from the office
that day because he feared the Appellant would come to work
"and try to retaliate." The Appellant called Newman
that day and asked if he "had heard anything about the
said that he and the Appellant were friends and that they
talked about personal matters, including sex. On more than
one occasion, the Appellant told Newman that he had a
preference for anal sex. The Appellant showed Newman
"[p]ictures that ladies had sent to him" that
reflected his preference for anal sex.
said that sometime after November 17, he was in the
office's parking lot and saw the towel the Appellant had
been using to wipe off the knife. He also saw a tube of
sexual lubricant at the end of the parking lot. Newman told
the police about the items, but they were not collected for
almost a year. Newman said the Appellant was known for being
cross-examination, Newman said that the blade on the
Appellant's knife was approximately two or three inches
long. Newman denied that he ever showed the Appellant
pornographic photographs. Newman acknowledged that he did not
know who put the tube of lubricant in the parking lot.
said that he had considered the Appellant to be a good
friend. The Appellant was married, had five children, and was
the sole provider for his family. The Appellant never told
Newman that he moved to Tennessee from Texas because he was
"in desperate need of a job" after his office
manager embezzled $250,000 and ruined his dental business.
redirect examination, Newman said that the Appellant bought
expensive firearms and knives, that he paid to have sex with
prostitutes, and that he never said he had money problems.
Newman agreed it was odd that the Appellant did not tell him
about the employee's embezzlement, noting that ...