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State v. Beham

Court of Criminal Appeals of Tennessee, Jackson

December 18, 2019


          Assigned on Briefs November 5, 2019

          Appeal from the Criminal Court for Shelby County No. 16-00648 Carolyn Wade Blackett, Judge

         A Shelby County jury convicted the Defendant, Robert Beham, as charged of rape of a child and aggravated sexual battery, and the trial court imposed an effective sentence of forty years at one hundred percent. On appeal, the Defendant argues (1) the trial court erred in denying his motion for judgment of acquittal and the evidence is insufficient to sustain his convictions, and (2) the trial court abused its discretion in applying the enhancement factor regarding his history of criminal behavior. We affirm the judgments of the trial court.

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

          Rosalind E. Brown (on appeal) and Sam Perkins and James Jones (at trial), Memphis, Tennessee, for the Defendant-Appellant, Robert Beham.

          Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree and Gavin Smith, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert L. Holloway, Jr., J., joined.




         The proof established that G.B. was the mother of the victim, A.W., [1] and the sister of the Defendant. At the time of the offenses against the victim, G.B. had been dating DeAngelo Westley, who was the father of their two young boys but was not A.W.'s father. In September 2015, G.B., Westley, and the children were living with G.B.'s mother, S.B., and the Defendant in an apartment. At the time, A.W. was five years old.

         G.B. said that when a person entered S.B.'s apartment, the dining room was on the left, a staircase to the second floor of the unit was directly in front of the door, and the living room was to the right. A person had to walk through the dining room to reach the kitchen, and the kitchen also opened onto the living room. The living room had a small couch with an ottoman, which was usually placed in front of the couch.

         The morning of September 7, 2018, G.B. awoke and realized that they had no food for breakfast, so she and Westley left the apartment to purchase milk and cereal at a nearby store. When they left, the three children and the Defendant were playing video games in the living room, and S.B. was asleep in her bedroom upstairs. It took G.B. and Westley approximately five minutes to buy food at the store and return home. They entered the apartment and walked through the dining room to the kitchen so they could prepare breakfast for the family but did not see the children in the living room. G.B. called her children to eat breakfast, and the two youngest children walked into the kitchen from the dining room, but A.W. never came to eat. G.B. began trying to find A.W. She looked in the living room and saw the Defendant "getting up off the floor." She noticed that the Defendant had a surprised look on his face and that his pants were "kind of twisted" like he had just pulled them up. Then she noticed A.W., who did not have her pants on, getting up from the floor with a shocked look on her face "like she was in trouble or something." G.B. observed the Defendant hurrying to get A.W. pants on. She also noticed that the ottoman had been moved from its normal position so that it blocked the view into the living room from the front door.

         G.B. asked A.W. why she had not come into the kitchen to eat breakfast and asked the Defendant why A.W.'s pants had been on the floor. The Defendant replied that A.W. had urinated on herself and that he had helped her change her clothes. G.B. took A.W.'s hand and saw that her daughter's underwear was at her ankle even though her pants had been pulled up. G.B. asked the Defendant where A.W.'s wet clothing was, and the Defendant did not answer. G.B. later discovered that A.W.'s underwear had a "streak of discharge" on it, but the underwear did not feel damp as if A.W. had urinated on it, and it did not smell of urine. G.B. said there were no other signs that A.W. had urinated on herself. She noted that A.W. was fully "potty-trained" and did not have a history of urinary problems.

         G.B. said she fixed A.W.'s underwear and pants, put A.W. on her hip, and walked out the front door of the apartment with her. When they got outside, G.B. asked A.W. what happened, and A.W. got a "scared look on her face" and "put her head down" before replying that the Defendant had "touched" her. G.B. said that after A.W. told her what happened, the Defendant, who was standing on the porch, kept yelling, "What did she say?"

         G.B. took A.W. with her inside the apartment and told Westley that the Defendant had touched A.W.. She noticed that the Defendant followed them back inside the apartment, where he began "cleaning up and doing things." G.B. went upstairs to awaken S.B., so S.B. could ask the Defendant what he had done to A.W.. She explained to S.B. what A.W. had said to her and informed S.B. that she was calling the police. S.B. undressed A.W. in order to examine her, and G.B. and S.B. observed that A.W.'s genitals were wet and that there was a discharge on A.W.'s underwear. G.B. dressed A.W. without her underwear, which they left on the floor of S.B.'s bedroom, and S.B. went downstairs to talk to the Defendant about what had happened while G.B. called the police.

         G.B. said that when S.B. asked the Defendant if he had touched A.W., the Defendant replied, "Man," and "got real[ly] sad" but never denied touching A.W. S.B. seemed "really stunned" and "shocked" and asked the Defendant why he would do that to his niece, and the Defendant got angry and ran up the stairs in order to attack G.B.. G.B. picked up a remote and threw it at the Defendant, hitting him on the top of his nose, which caused him to bleed, and Westley blocked the Defendant from coming up the stairs for G.B.. As the Defendant continued to try to attack G.B., Westley fought him, and they ended up breaking a window as the police arrived. Then the Defendant "picked up a 2 x 4" board, and the police told him they would shoot him if he did not drop it. The Defendant eventually put the board down, and the police arrested him. G.B. told the police what had happened to A.W., and the police questioned everyone in the home, although the Defendant did not say much to the officers.

         G.B. briefly talked to the police before riding with A.W. in an ambulance to the hospital. Then G.B. and her family took A.W. to the Rape Crisis Center, where the staff examined A.W. and asked her questions about the incident. G.B. said she was not present during A.W.'s examination or while the staff of the Rape Crisis Center asked A.W. questions. A day or two later, G.B. took A.W. to the Child Advocacy Center, where a forensic interviewer talked to A.W. about what happened. G.B. was not present during A.W.'s forensic interview. She said that she did not talk to A.W. about the details of what the Defendant had done to her before taking her to the Rape Crisis Center or the Child Advocacy Center. G.B. said that following this incident, A.W. had problems "learning and being around people," so she had her go to therapy for a while.

         A.W., who was seven years old at the time of the Defendant's trial, testified that the Defendant was her uncle. A.W. stated that she had told the truth about what the Defendant did to her in the forensic interview at the Child Advocacy Center. She also said she understood the difference between a good touch and a bad touch. A.W. reviewed an illustration of a female figure and identified the vagina as "TT" and the buttocks as "butt." She also reviewed an illustration of a male figure and identified the penis as "TT."

         A.W. said that, during the incident, the Defendant took off her pants and underwear. The Defendant touched her "TT" with his hand and then touched her "TT" with his "TT" while his pants and underwear were pulled down. She said that the Defendant's "TT" looked hard when he touched her with it. She also stated that the Defendant put his "TT" inside her "TT" because it hurt. A.W. said that her mother, G.B., came into the room while the Defendant was touching her behind the couch and that the Defendant pulled his pants up and "lied" to G.B. about what he had been doing. She said that after her mother came into the room, she took her outside and asked her what happened, and A.W. told her that the Defendant "was touching on [her]." After this incident, A.W. went to the hospital and the Rape Crisis Center. She also went to the Child Advocacy Center two days later and told the staff there the truth about what the Defendant had done to her. A.W. said the Defendant also touched her "butt" with his "TT," but she could not remember whether that incident occurred on the same day as the other offenses.

         DeAngelo Westley testified that in September 2015, he lived in Memphis with G.B., their two sons, A.W., S.B., and the Defendant. Westley said that on the morning of September 7, 2015, he and G.B. left the apartment to buy food for breakfast. When they left, the Defendant and the children were in the living room, and S.B. was asleep upstairs. When Westley and G.B. returned to the apartment ten minutes later, they entered through the front door, which swung into the apartment partially blocking the view to the living room, and they walked through the dining room into the kitchen. A few minutes later, they called their children for breakfast, and although their sons came into the kitchen, A.W. did not. He said G.B. went to look for A.W., and then he saw G.B. take A.W. out the front door of the apartment and walk around by the pool. At the time, the Defendant repeatedly asked, "What did she say? What did she say?" When G.B. and A.W. returned to the apartment, G.B. told him that the Defendant had "touched" A.W.. Westley said he was "shocked" and helped G.B. take A.W. upstairs to talk to S.B. about what happened. Westley said that he, G.B., and S.B. went downstairs. S.B. asked the Defendant if he had touched A.W., and the Defendant replied, "Man, man." He also noticed that the Defendant began "cleaning up" and "fidgeting[, ]" even though the Defendant normally played video games. Then G.B. told the Defendant, "I know you did it because you [are] acting weird," and the Defendant got mad at her. Westley told G.B. to go upstairs, and the Defendant tried to run after G.B. so he could fight her, and he and the Defendant "start[ed] scuffling." The Defendant left, and Westley went upstairs, and when the Defendant returned and tried to come upstairs a few minutes later, G.B. threw a remote at the Defendant, which hit him in the nose and made him bleed. Then the Defendant got a "2 x 4" board and acted like he was going to hit G.B. with it just as the police arrived at the apartment. He said the police had to draw their guns before the Defendant finally put the board down and was placed in handcuffs. Westley said that since this incident, A.W. has acted differently, and he has tried to keep A.W. busy with activities so she wouldn't "have to think about" what happened.

         Timmy Mitchell, an officer with the Organized Crime Unit of the Memphis Police Department, testified that on September 7, 2015, he responded to a domestic violence call at S.B.'s apartment. When he arrived, he noticed that the front door to S.B.'s apartment was open and that the Defendant was holding a "2 x 4" board. Another officer on the scene told the Defendant to put the board down, so he would not have to hurt him, and the Defendant eventually put the board down and was detained. Although the Defendant had blood on his face, he refused to go to the hospital. Officer Mitchell entered the apartment and saw that G.B. was "very upset" and "angry." G.B. told Officer Mitchell and the other officers that she had "walked in" and "[the Defendant] had [A.W.'s] legs open and was trying to penetrate her" or "had penetrated her." Upon hearing this, Officer Mitchell detained everyone in the apartment. He spoke to Westley, who stated that he had held the Defendant down until the police arrived. Officer Mitchell noted that S.B., the Defendant's mother, "was more concerned about the [D]efendant than she was [A.W.]" and was "more worried about us hurting [the Defendant]." He said no one at the scene told him that the Defendant had confessed to touching A.W. inappropriately.

         Jason Parish, an officer with the Crime Scene Investigation Unit of the Memphis Police Department, testified that he responded to S.B.'s apartment on September 7, 2015 to document, collect, and preserve evidence. In addition to taking numerous photographs of the scene, Officer Parish collected a "2 x 4" board and A.W.'s underwear.

         James Byars, a Sergeant with the Child Abuse Sex Crimes Unit of the Memphis Police Department, testified that he responded to the Rape Crisis Center, where he spoke with G.B. and A.W. before A.W. had her forensic examination. Sergeant Byars stated that he and Sergeant Lee spoke to A.W. outside the presence of her mother. When Sergeant Byars asked A.W. what happened to her, A.W. replied that the Defendant "had put his front TT in her TT and booty and it hurt." A.W. also told him that the Defendant had pulled her clothes down when these offenses occurred. Sergeant Byars said that he was the first officer to talk to A.W. about what happened. He said that he was unable to take a statement from the suspect and that he relied on the statement G.B. had given to the Department of Children's Services about what she observed.

         Nina Sublette, a licensed family nurse practitioner and an expert in the fields of sexual assault nursing examination and advanced practice nursing, testified that she examined A.W. on September 7, 2015 at the Rape Crisis Center. Sublette said that because A.W. came to the center within four hours of the offenses, she was able to collect evidence for the rape kit during the examination. She also talked to A.W. outside the presence of her mother. When Sublette asked about what happened, A.W. said that the Defendant had "touched [her] TT with his TT." She said A.W. was "cooperative" and "quiet" when they talked. Sublette then conducted a forensic examination of A.W. and collected buccal swabs from A.W. as well as swabs from A.W.'s vulva and anus for the rape kit. She explained that for children who are premenstrual, she does not take a swab from the vaginal canal because the lack of estrogen in the body can make doing so painful. Sublette stated that A.W. was not wearing underwear when she arrived as the center, but she collected A.W.'s leggings. Sublette observed no physical injuries to A.W.; however, she said that "[d]epending on the type of assault and the type of object used, you may, or may not see injury." She added that in the "majority" of child victim cases, there is no injury, even if penile penetration has occurred, because of how the ...

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