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Love v. State

Court of Criminal Appeals of Tennessee, Knoxville

October 3, 2019

TROY LOVE
v.
STATE OF TENNESSEE

          Assigned on Briefs August 27, 2019

          Appeal from the Criminal Court for Knox County No. 112312PC Steven Wayne Sword, Judge

         The petitioner, Troy Love, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the 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

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Troy Love.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Charme Allen, District Attorney General; and Sarah Keith, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         A Knox County jury convicted the petitioner of two counts of rape of a child and one count of aggravated sexual battery, and the petitioner appealed. Tenn. Code Ann. §§ 39-13-504; -522. On appeal, this Court affirmed the petitioner's convictions for rape of a child but reversed the aggravated sexual battery conviction due to error in the trial court's instructions to the jury. In reaching this conclusion, we summarized the facts of the petitioner's crimes, as follows:[1]

The [petitioner's] convictions relate to sexual abuse of his step-great-granddaughter. At the trial, the victim, who was nine years old at the time of the trial, testified that she knew the difference between a good touch, such as a hug, and a bad touch, which she described as "someone's touching you in a part you don't like." She said bad touches had occurred when the [petitioner] touched her "private parts" and her "butt" with his fingers and his mouth. Using a diagram of a female and a male child, she identified the areas corresponding to the "private" and "butt." She said the touching began when she was six years old and continued until she was eight. She said it occurred in the [petitioner's] living room and bedroom.
Relative to an incident in the [petitioner's] bedroom, the victim testified that as she watched television, the [petitioner] came into the room, went under the sheets, and touched her "private" with his mouth. She said the [petitioner's] actions made her sad.
Relative to an incident in the [petitioner's] living room, the victim testified that as she napped on the couch, the [petitioner] came to the couch where she was sitting, that she moved to the end of the couch, and that the [petitioner] touched her private with his finger and his mouth. She thought she was in second grade when this incident occurred.
Relative to an incident in the movie room at her old house, the victim testified that she sat on the couch, wore "footsies," and watched a movie. She said the [petitioner] unzipped her clothing and touched her private with his finger. She said his finger did not go inside her.
When asked whether the [petitioner] touched her privates on any other occasions, the victim said he did not. She said the [petitioner] never put anything, including his finger or his private, in her private. She likewise stated that she could not recall any other incidents in which he touched her body with other parts of his body.
The victim testified that the [petitioner's] wife had passed away, that she had spent a lot of time with the [petitioner] and his wife, and that she visited frequently at their house. She said she called the [petitioner] "Troy."
The victim testified that when she was in second grade, her mother and her grandmother took her to a place with a Wii gaming system and that she talked to a woman and made drawings with her. She said she told the truth to the woman and did not tell her anything that was not true. She said her mother and grandmother were not in the room when the woman talked to her. She recalled the woman's stating that video cameras were recording what happened. She agreed she told the woman that her "grandpa" had touched her in places she did not like. She agreed she told the woman the incidents began after the Friday on which the victim had her tonsils removed. She agreed that the incident she described in the [petitioner's] bedroom occurred on the Sunday after her tonsils were removed and that she had told the woman who interviewed her that she had asked to go to the [petitioner's] house that day. She agreed she had told the woman that she went home on Monday and told her mother on Tuesday about the touching. She agreed that the woman drew a timeline based on the interview, and the timeline was received as an exhibit.
The victim testified that she did not remember the woman asking her if the [petitioner] ever put his private in her private. After reviewing a portion of the video recording outside the presence of the jury, the victim testified that watching a video recording had helped her remember what she said. She said she told the woman the [petitioner] had put his private in her private. She did not recall if the woman asked how the victim's body felt when the [petitioner] did this, but she later said she remembered telling the woman her body felt tingly after the [petitioner] put his private in her private. She remembered telling the woman that the [petitioner] lay on top of her when he put his private in her private. She recalled telling the woman that the [petitioner] did not have to do anything to his private part before putting it inside her and that it was inside her, not just close to her private part. She remembered telling the woman that she was five years old the first time the [petitioner] put his private part in her private part. She recalled telling the woman that the [petitioner] put his private part in hers seven or eight times and that she never saw the [petitioner's] private part. The victim recalled telling the woman that she did not remember how the [petitioner's] private part felt.
The victim identified a drawing she made for the woman who interviewed her, and it was received as an exhibit. She recalled telling the woman that the drawing showed "where the pee comes out of." She recalled telling the woman that when she went to the bathroom "that night," she saw something that looked like "boogers" in the part of ...

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