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State v. Gary

Court of Criminal Appeals of Tennessee, Knoxville

September 18, 2019


          Assigned on Briefs October 30, 2018

          Appeal from the Criminal Court for Knox County No. 107932 Steven Wayne Sword, Judge

         A Knox 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.

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

          J. 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.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.



         I. Factual Background

         The Knox County Grand Jury indicted the Appellant for attempted first degree murder and aggravated rape. The victim of both offenses was B.T.[1] 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.

         At 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.

         The 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.

         The 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 angry.

         The 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.

         Initially, 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 the office.

         The 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 ambulance arrived.

         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.

         The 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 theft.

         The 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.

         On 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."

         The 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 oral sex.

         The 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.

         The 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.

         The 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."

         Tina 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 very truthful."

         Jeff 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."

         Newman 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.

         Newman 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."

         Newman 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.

         The 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 office."

         Newman 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.

         Newman 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 dishonest.

         On 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.

         Newman 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.

         On 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 ...

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