Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 21, 2019
from the Criminal Court for Davidson County No. 2011-C-2109
Steve Dozier, Judge
Petitioner, Ugenio Dejesus Ruby-Ruiz, appeals the Davidson
County Criminal Court's denial of his petition for
post-conviction relief from his 2013 convictions for nine
counts of rape of a child, two counts of rape, five counts of
aggravated sexual battery, and three counts of sexual
exploitation of a minor and his 121-year sentence at 100%
service. The Petitioner contends that he received the
ineffective assistance of appellate counsel. We reverse the
judgment of the post-conviction court and remand the case for
the entry of an order granting the Petitioner a delayed
appeal for the limited purpose of filing an application for
permission to appeal to our supreme court. The
Petitioner's remaining allegations shall be held in
abeyance in the post-conviction court until the resolution of
the delayed appeal.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed; Case Remanded
B. Russ, Nashville, Tennessee, for the appellant, Ugenio
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Assistant Attorney General; Glenn Funk,
District Attorney General; and Tammy Meade, Assistant
District Attorney General, for the appellee, State of
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., J., joined.
H. MONTGOMERY, JR., JUDGE
case relates to sexual offenses perpetrated against A.M., the
Petitioner's stepdaughter who was between the ages of
eight and thirteen when the abuse occurred, and the
stepdaughter's friend, A.T. The Petitioner appealed his
convictions. T his court affirmed the convictions and
summarized the facts of the case as follows:
We will refer to the minor victim in this case by her
initials, A.M. She testified that she was 15 years old at the
time of trial. Defendant was her stepfather, and she called
him "dad." She lived with her mother, her siblings,
and Defendant. A.M. testified that Defendant began sexually
abusing her when she was eight or nine years old.
A.M. testified that on one occasion, she walked in on
Defendant watching pornography on television. She saw
Defendant sitting on the couch, and he was masturbating. She
testified that Defendant told her to watch it with him, but
she went to her bedroom instead. Defendant followed her. She
testified that Defendant touched her "private
parts" over her clothing. A.M. recalled another incident
when she and Defendant were in Defendant's bedroom. She
testified, "I guess he just felt like doing it. And like
- I guess he just felt like having sex so he told me if I
wanted to. And I guess I just didn't want to argue so I
just let him." She agreed to have sex with Defendant and
unclothed herself. She testified that Defendant penetrated
her anally. A.M. specifically remembered the occasion because
her mother came home from the grocery store during the
incident, and she quickly dressed herself. She testified that
Defendant had previously had anal sex with her. She testified
that the first time it hurt, and Defendant told her that it
would not hurt the next time.
A.M. recalled another incident in the living room when
Defendant was watching pornography. She saw
"half-naked" girls dressed as clowns touching each
other's private parts. She testified that she sat on the
couch beside Defendant, and Defendant began touching her
private parts over her clothing. She testified that Defendant
was touching his penis, and he asked her to touch his penis.
Defendant then ejaculated. A.M. testified that Defendant
wiped semen off his penis with a paper towel. She testified
that Defendant had wiped "sperm" off his penis with
a paper towel on several other occasions.
A.M. testified that Defendant also touched her private parts
on several occasions in her bedroom, but she did not recall
any specific incidents. A.M. recalled that Defendant touched
her private parts over her clothing and under her clothing.
Defendant would sometimes put his hand under her clothes.
A.M. testified that on occasions when she "would deny
him" sex, Defendant would put his penis in her mouth.
Defendant also put his mouth on her breasts. A.M. testified
that when her family moved to "the yellow house,"
Defendant was having sexual encounters with her "two
times a week." A.M. recalled the first time Defendant
tried to have vaginal intercourse with her. She testified
that she and Defendant were the only people in the house.
A.M. was laying on Defendant's bed. Defendant told her to
take her clothes off because "he wanted to stick it in
[her] vagina." She told Defendant that it hurt, and
Defendant told her that it would only hurt the first time.
A.M. testified that she cried. She testified that her mother
arrived home, and A.M. ran to the bathroom because she was
bleeding. She testified that her mother believed A.M.'s
menstrual cycle had started because she was bleeding.
A.M. recalled another occasion Defendant penetrated her
vaginally. She testified that she was watching television in
Defendant's bedroom while she waited for her mom to
return home from work. Defendant told her that he wanted
"to do it again[, ]" and A.M. refused because her
mother would be home soon. A.M. testified, "he told me
it was going to be quick. So I just got tired of saying no
because I know he wouldn't understand." A.M. removed
her clothes and spread her legs open. Defendant tried to put
his penis in her vagina, and A.M. told him to stop because it
hurt. She testified, "I told him, no, because it did
hurt and he did it anyways. I guess he didn't care."
She believed that she was in the fifth or sixth grade at that
A.M. testified about one incident when they were in the
living room. Defendant was sitting on the couch, and A.M. was
kneeling on the floor. Defendant put his penis in her mouth
and then ejaculated onto a piece of paper. A.M. recalled
another incident when she was taking a shower, and Defendant
got in the shower with her and "showed [her] his
penis." Defendant touched A.M.'s private parts and
told her to put her mouth on his penis. Defendant told A.M.
that he would give her money if she put her mouth on his
penis. A.M. testified that the incident ended when she heard
her brother in the house.
A.M. testified that "most often" the sexual
encounters would happen in Defendant's bedroom. She
testified that it happened "a lot." She recalled
another incident when she was in fifth grade, and her friend
A.T. was visiting. They were wearing their bathing suits in
the bathtub, and Defendant came into the bathroom and exposed
his penis to them. A.T. left the bathroom, and Defendant then
put his penis in A.M.'s mouth. A.M. testified that on two
other occasions when A.T. was visiting, Defendant called them
over to watch pornography with him. A.M. testified that she
asked A.T. not to tell anyone about the incidents.
A.M. recalled an incident when Defendant's niece was
visiting. Defendant gave his niece money to leave the room,
and Defendant then told A.M. to put her mouth on his penis.
A.M. testified that Defendant was sitting on the couch, and
A.M. was kneeling on the floor. She also recalled an occasion
when her mother went to a party, and A.M. "thought the
same thing's going to happen that always happens when
nobody's around. . . . Have sex with [Defendant]."
A.M. testified that Defendant was mostly having vaginal
intercourse with her by that time.
A.M. testified that when she was thirteen years old, her
youngest sibling was born. A.M. recalled an occasion when she
went into Defendant's bedroom to give the baby a bottle,
and Defendant told her to give the baby to another sibling.
Defendant then told A.M. that he wanted to have sex, and A.M.
took her clothes off and laid on Defendant's bed. She
testified, "I couldn't say anything because I would
be mad because I would get so tired of it. And so I would
just let him do it, what he needed to do." She testified
that Defendant penetrated her vaginally, and the encounter
ended when her sister knocked on the bedroom door. A.M. also
recalled an incident just before her youngest sibling was
born when Defendant put his penis into her mouth while they
were in the living room. She testified that her sister
watched the incident.
A.M. testified that Defendant told her that she
"shouldn't tell because he would go to jail and what
would happen to [A.M.'s] little brothers." Defendant
also told A.M. that she was prettier than her mother and that
he had sex with A.M. because A.M.'s mother would not have
sex with him. Defendant told A.M. that he loved her and he
wanted to marry her. Defendant used his cell phone to take
photographs of A.M.'s naked body. He also showed A.M. a
photograph of her mother's naked body on his phone and
told A.M. that her breasts looked better than her
mother's breasts. A.M. testified that Defendant also used
his phone to take video of her performing oral sex on him,
but he did not show the video to A.M. A.M. also testified
that Defendant gave her money, a camera, and allowed her to
go places in exchange for sexual acts.
In February 2011, A.M. began running away from home. She
recalled an incident on a Sunday in March 2011. She was in
the eighth grade. After having sex with Defendant, A.M. left
the house to go stay with her boyfriend, F.R., with whom she
testified she had a consensual sexual relationship. While she
was staying with F.R., she told him that Defendant ...