Assigned on Briefs May 7, 2019
from the Circuit Court for Lauderdale County No. 9984 Joseph
H. Walker III, Judge.
Defendant, G'wayne Kennedy Williams, a/k/a Kenney
Williams, was convicted by a jury of three counts of rape,
eight counts of rape of a child, three counts of aggravated
statutory rape, three counts of statutory rape by an
authority figure, three counts of sexual battery by an
authority figure, eleven counts of incest, eight counts of
aggravated sexual battery, and two counts of violating the
sex offender registry. The trial court imposed an effective
sentence of sixty-four years' incarceration. On appeal,
the Defendant argues (1) that the evidence was insufficient
to support his convictions for rape and rape of a child; (2)
that the trial court erred by admitting evidence of the
Defendant's prior bad acts; (3) that admission of the
victim's complete hospital record was improper given that
the records contained hearsay statements and that the record
was prepared for purposes of prosecution; (4) that the trial
court erred by qualifying a witness as an expert in sexual
assault nurse examination; (5) that the trial court erred by
not declaring a mistrial after the State attempted to enter a
recording of the victim's forensic interview into
evidence without having provided the interview to the defense
before trial; (6) that the trial court erred by failing to
sever the sex offender registry charges; and (7) that the
trial court erred in its application of enhancement and
mitigating factors in sentencing. Following a thorough review
of the record, we conclude that the evidence is insufficient
to support five counts of rape of a child, five counts of
aggravated sexual battery, and five counts of incest. In
addition, some of the convictions for incest, aggravated
statutory rape, statutory rape by an authority figure, and
sexual battery by an authority figure were improperly merged.
We remand the case for resentencing and the entry of new
judgments. In all other respects, we affirm the judgments of
the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part; Reversed in Part;
Timothy J. Gudmundson (on appeal), Fayetteville, Tennessee;
and Vickie L. Green (at trial), Millington, Tennessee, for
the appellant, G'wayne Kennedy Williams, a/k/a Kenney
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Assistant Attorney General; Michael
A. Dunavant, District Attorney General; and Julie K. Pillow,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall and James Curwood Witt, Jr., JJ.,
KELLY THOMAS, JR., JUDGE
case arises out of the Defendant's sexually abusing his
minor stepson, J.M., between 2012 and 2015. J.M.'s date of
birth was December 14, 2001. Because this case involves
multiple criminal incidents, we will give a brief overview of
the locations in which these offenses occurred. In 2012, the
Defendant, his wife A.M., J.M., and J.M.'s siblings moved
from Wisconsin to Ripley, Tennessee. While in Ripley, the
family lived in houses on Main Street, College Street, and
Spring Street. In mid-spring 2014, the Defendant, who was
still married to A.M., moved out of the Spring Street house
into a trailer on Webb Street that he shared with his
brother, Carthell Williams. The Defendant was living in the
trailer at the time of his January 2015 arrest. The relevant
events occurred at the Main Street house; at A.M.'s
workplace during the time the family lived on College Street;
the Spring Street house; and the Webb Street trailer.
June 2015 term of the Lauderdale County Grand Jury indicted
the Defendant on the following charges: four counts of rape;
four counts of aggravated statutory rape; four counts of
statutory rape by an authority figure; four counts of sexual
battery by an authority figure; forty-five counts of incest;
forty-one counts of rape of a child; forty-one counts of
aggravated sexual battery; and two counts of violating the
requirements of the sex offender registry. See Tenn.
Code Ann. §§ 39-13-305; -13-403; -14-303; -17-1307;
to trial, the Defendant, represented by the Public
Defender's Office, filed a motion pursuant to Tennessee Rule
of Evidence 404(b). He requested that the State be prohibited
at trial from discussing any prior bad acts by the Defendant
until a hearing could be conducted pursuant to State v.
Morgan, 541 S.W.2d 385 (Tenn. 1976), assessing whether
the evidence was otherwise admissible. The record is silent
as to whether a pretrial hearing was held or an order issued
relevant to the motion.
September 5, 2017, the State filed a motion pursuant to
Tennessee Rules of Evidence 902 and 803(6), respectively
governing self-authenticating documents and the hearsay
exception for documents kept in the regular course of
business, requesting that J.M.'s full medical record be
admitted into evidence. On September 11, 2017, the Defendant
filed a response objecting to admission of portions of the
medical record containing "hearsay statements" by
J.M. and A.M. and arguing that "[u]nless these persons
are present to testify before the [c]ourt, then the
introduction of these statements violate the Defendant's
right to confront the witnesses[.]" No order from the
trial court is present in the record.
trial, Brian Hickman testified that in 2015, he was an
investigator with the Lauderdale County Juvenile Court and
that he responded to a call at Lauderdale Middle School on
January 16, 2015. When he arrived, the principal, J.M., and
J.M.'s mother A.M. were present. J.M. began to speak
"about an experience" at a "trailer," and
A.M. stated that she believed J.M. had been molested.
Investigator Hickman spoke to A.M. and J.M. separately, and
J.M. wrote a statement, which was marked for identification
told Investigator Hickman that the most recent "sexual
occurrence" happened within seventy-two hours, and
Investigator Hickman arranged for J.M. to undergo an
examination by a sexual assault nurse examiner (SANE).
Investigator Hickman obtained A.M.'s permission to search
her house for items of clothing J.M. discussed in his
statement. Investigator Hickman, another investigator, J.M.,
and A.M. went to Jackson for the sexual assault examination.
the examination, Investigator Hickman reported the Defendant
to the Department of Children's Services (DCS), which
removed J.M. from the home and arranged a forensic interview.
Investigator Hickman obtained an arrest warrant for the
Defendant on January 17, 2015, and attempted to contact the
Defendant on January 19, 2015, in conjunction with sex
offender registry case officer Amy Northcott. Ms. Northcott
told Investigator Hickman that she "had some problems
with [the Defendant] in the past[.]" Ms. Northcott
called the Defendant, and Investigator Hickman offered to
drive to the Defendant's location to speak to him. The
call was terminated for an unknown reason, and Investigator
Hickman was concerned because of "what [he]
learned" about the Defendant's past.
Northcott tried to call the Defendant's cell phone
repeatedly; eventually, a person who identified himself as
Carthell Williams answered. Ms. Northcott conveyed to
Carthell that the Defendant needed to come to the police
department, but the Defendant did not do so. Investigator
Hickman obtained the Defendant's location through his
cell phone provider and drove by the location, but he did not
see the Defendant. The Defendant left a message for
Investigator Hickman the following Monday, stating that he
would meet with Investigator Hickman at his attorney's
January 20, 2015, Investigator Hickman went to an
attorney's office. The attorney informed Investigator
Hickman that she had been retained only in regard to a
driving under the influence charge and that she did not
represent the Defendant outside this limited scope. When the
Defendant arrived, he told Investigator Hickman that he did
not want to speak to him. Investigator Hickman arrested the
Defendant for "violation of [the] sex offender
registry." After the Defendant was in jail, Investigator
Hickman obtained arrest warrants based upon the information
he received from J.M., A.M., and the SANE nurse. Investigator
Hickman, another investigator, and Ms. Northcott also drafted
a search warrant for the Defendant's trailer and executed
Hickman identified photographs of letters and packages seized
in the Defendant's trailer on Webb Street. The items were
dated October and December 2014, and two letters were sent to
an address on Spring Street and reflected a sticker
indicating the change of address to Webb Street. A water
utility bill was addressed to the Defendant "or Carthell
Williams." A Tennessee Department of Human Services
letter was addressed to "Kennedy D.
Hickman also identified photographs of a Game Boy Advance; an
Xbox video game console; a box containing Xbox games; bicycle
pegs for a child's bicycle and a suitcase with child-size
clothing; a "Star Wars lego box" that J.M. said he
"transported and hauled his Xbox around in," which
was found in the master bedroom; and a Playstation 3 video
game console. Investigator Hickman noted that the trailer
contained a "child's room" with a bunk bed, a
drawer of children's clothing, hair extension, Halloween
masks, and children's size nine and ten shoes.
Investigator Hickman noted that no children were supposed to
be living with the Defendant.
Hickman identified photographs of a hallway closet inside the
bathroom, which was "stipulated as an area of
interest"; a balloon kit with a helium tank; the
children's clothing they found, including "school
clothes" and undergarments that J.M. identified as his;
"toddler size" clothing; and "a Softee brand
Light and Natural Hair and Scalp Treatment" that matched
J.M.'s description of a lubricant or "grease"
used by the Defendant during the most recent incident. The
hair treatment was found in the bathroom closet, consistent
with J.M.'s statement. Investigator Hickman seized the
sheets and blankets found in the bedrooms as well as the hair
of DNA were taken from the Defendant and J.M. and analyzed by
the TBI laboratory. The TBI did not find a combination of
J.M.'s and the Defendant's DNA on any item.
Investigator Hickman noted, though, that "it was just
the two sheets that were . . . left in the house."
Hickman stated that he was given the names of "five or
six . . . additional juveniles that were possible victims or
possible witnesses of . . . sexual acts, on [J.M.] or
themselves." Investigator Hickman agreed that J.M.
indicated other children had been coming to the
Defendant's house to play video games. Investigator
Hickman and DCS conducted interviews of the other children
and their parents, "none of which had any statements to
make or any concerns." He verified, however, that the
children had been inside the Defendant's trailer.
Hickman identified a transcript of J.M.'s January 22,
2015 forensic interview, which he stated had also been video
recorded. Defense counsel objected, stating, "The taped
interview has not been provided to defense counsel, and
I'm unfairly surprised by learning that a tape still
exists, and I would like an opportunity to review that
tape." The trial court ordered that the transcript be
marked for identification purposes only.
Hickman identified records from the electric company showing
that on August 21, 2012, A.M. moved into an apartment on Main
Street. She moved out on August 2, 2013, and relocated to a
duplex on College Street. She moved from that address on
January 21, 2014, and into the house on Spring Street.
Investigator Hickman noted that the moves were consistent
with J.M.'s recollection of the order of sexual assaults.
Hickman noted that at the Spring Street house, J.M. slept in
a room containing a loveseat and armchair and that stairs to
the basement connected to J.M.'s room. The basement was
divided into a "wash room" and a space for the
cross-examination, Investigator Hickman testified that A.M.
was the first person to mention molestation to him. He stated
that he spoke to J.M. with the principal and school resource
officer present and that J.M. disclosed "the events that
happened on the 14th." Investigator Hickman noted that
J.M. was "a little bit bashful" when discussing
male genitalia and that "[w]e let him think about it
before he spoke and said anything." DCS placed J.M. in
his biological father's custody in Chicago.
search of the Defendant's trailer did not occur until
after he had been arrested. When Investigator Hickman arrived
at the Defendant's trailer, Carthell "showed up as
[the officers] were there[, ]" and they learned that
Carthell was also named on the lease. Investigator Hickman
showed Carthell the search warrant. Carthell indicated that
the master bedroom of the trailer was his, but he did not
tell Investigator Hickman to whom the children's bedroom
belonged or where the Defendant slept. Investigator Hickman
was aware that Carthell was also charged by Ms. Northcott for
a violation of the sex offender registry, but Investigator
Hickman did not know if Carthell's prior conviction
involved children. Investigator Hickman did not ask Carthell
if he had grandchildren, and Carthell did not volunteer that
information. A.M. told Investigator Hickman that she had
taken several of J.M.'s belongings, which were boxed up,
to the Defendant's trailer. Investigator Hickman noted
that the items were not "completely packaged" and
that tied-up bags were torn open.
Hickman opined that children's belongings were present in
the trailer that "seemed to belong to the children [who]
were not [the Defendant's] biological children[.]"
Investigator Hickman acknowledged that there was "no
indication that [Carthell's] grandchildren were actually
there" at the same time as the Defendant. He stated,
though, that children's clothing was stored at the
Hickman testified that two other children "verbally . .
. stated that they were at [the trailer]. They couldn't
give [him] a time frame, so they didn't give any
statements because they didn't want to." When
Investigator Hickman presented the Defendant with the search
warrant for his DNA sample, the Defendant "had some
words to say, but typically . . . everybody would be
distraught" to give a DNA sample by court order. Once
the Defendant read the search warrant, "he was one
hundred percent willing" to comply. Investigator
Hickman's understanding of the sex offender registry
rules indicated that a person on the registry could not stay
overnight with the person's biological grandchildren;
Investigator Hickman did not see why Carthell would have
clothing for young children stored at the trailer.
Walker testified that she had worked for Jackson Madison
County General Hospital in the emergency department since
2003 and that she had been a SANE nurse for eleven years. She
had a master's degree in nursing and was a state licensed
nurse practitioner, registered nurse, and emergency medical
technician. She underwent forty hours of education to be
certified as a SANE "in order to have a more advanced
knowledge of . . . exams for victims of sexual assault and
rape." Ms. Walker also "attended numerous
conferences which . . . allowed [her] to further that
knowledge in countless areas." She had examined all ages
of patients in "medical forensic exams," which
entailed medical treatment, reviewing the patient's
medical background, and an examination to collect possible
evidence of sexual assault or rape if the patient was
examined within ninety-six hours of the event. Ms. Walker had
performed over one hundred examinations and had testified in
counsel stated that if Ms. Walker's expert testimony was
"limited to what is done for the purpose of collecting
evidence of sexual assault, [counsel would] accept her as
[an] expert because [counsel believed] she's been so
trained. [Counsel did] not believe she ha[d] been trained to
give a diagnosis[.]" Upon questioning by counsel, Ms.
Walker testified that her undergraduate and graduate nursing
coursework did not cover "treating sexual assault"
and that forensic examination was a specialized course. Ms.
Walker became a SANE in 2006. Ms. Walker did not opine as to
whether someone was raped or sexually assaulted as part of
her examination. The trial court qualified Ms. Walker as an
expert, although it did not specify her area of expertise.
direct examination, Ms. Walker identified J.M.'s medical
record, which contained Ms. Walker's report. The medical
record indicated that J.M. was age thirteen. Ms. Walker was
alone with J.M. during his examination; J.M. was "very
cooperative" and looked at Ms. Walker when she spoke to
him and when he answered questions; and J.M. was calm and
willing to answer her questions.
Ms. Walker was asked by the prosecutor to read an excerpt
from the medical records, defense counsel objected on the
basis of hearsay, arguing that J.M. would testify as to the
contents of the record. The trial court overruled the
objection and stated that it would "allow the history in
as a hearsay exception."
Ms. Walker read the following into the record:
[J.M.] was brought to the ER tonight by Lauderdale
Sheriff's Department for a SANE exam after telling the
principal that his [stepfather, the Defendant], has been
sexually assaulting him. [J.M.] states that [the Defendant]
started, quote, messing with him since the summer before . .
. he went into the fifth grade. [J.M.] also stated that he
began telling his mother about what [the Defendant] was doing
to him after her and [the Defendant] were married. [J.M.]
said that [he] and [the Defendant] used to do a lot of things
together and then, quote, when he got that bracelet off his
ankle he was a different person, end quote.
[J.M.] says Wednesday night his mom took him to
McDonald's and then to [the Defendant's house]
because [the Defendant] was supposed to talk to [J.M.] about
his behavior at school. [J.M.] says his mom left, and it was
him, his two friends, [the Defendant], and [the
Defendant]'s brother [Carthell]. [J.M.] said his two
friends left with their mom. Then [Carthell] left to go to
[J.M.] says [the Defendant] watched until [Carthell] left the
driveway, then immediately told him to go to the bedroom.
[J.M.] says [the Defendant] told him to take off his clothes
and [the Defendant] took off his clothes too. [The Defendant]
then touched [J.M.]'s penis with his hands and then said,
quote, he put his mouth on it, end quote, and he says, quote,
until I was finished, end quote.
I asked [J.M.] if . . . that was when [the Defendant] made
him ejaculate or come, and he said yes. He says he understood
what that meant. [J.M.] says after that, quote, he made me
stick mine in his bottom until I was finished again, end
quote. Then [J.M.] says, quote, he stuck his in my bottom
until he was finished, end quote. [J.M.] said after that [the
Defendant]'s brother came back and was knocking on the
door and everything stopped. Upon examination a small tear at
the top of the buttocks at the beginning of the, quote, crack
consistent with forcible separation of the buttocks, as well
as large folds of skin around the anus not consistent with
normal anatomy of a 13-year-old child. There were no other
findings, no bleeding. [J.M.] reports pain during defecation
And an addendum later after the exam was added that [J.M.]
disclosed two other names of adolescents that have been
possibly assaulted by [the Defendant]. Names and ages were
given to investigators.
Walker stated that a victim's version of events was
important to her examination because she needed to know which
areas of the body needed to be examined, as well as informing
the forensic laboratory how to rank the evidence in
Walker testified that J.M. had a "very large tear,
approximately three to three-and-a-half inches" at the
top of his buttocks consistent with them being
"separated very forcefully, the skin from the top, down
into in between the buttocks was torn open." Ms.
Walker noted that the wound was "somewhat dried because
it had been about a day or two after the event was reported,
but it was still red." Ms. Walker further testified,
[W]hen you have continuous and numerous events of traumatic
injury [to the anus] that causes tears to the anal skin, the
skin that the anus is made of . . . has a certain amount of
stretch to it[, ] . . . so after prolonged periods of
traumatic injury causing fissures . . . that skin heals and
causes scar tissue, and that scar tissue produces what some
people would call like a skin tag which will protrude from
stated that in her experience, anal skin tags were not part
of the "normal anatomy of a young child" and that
J.M.'s skin tags were "very significant to
corroborate the story that he gave [Ms. Walker] about what
Walker testified that she found evidence of injury, whether
new or old, in an "extremely low" percentage of
sexual assault examinations because of the elastic nature of
the tissue in the areas involved. Ms. Walker stated that in
J.M.'s case, his anatomy "was more consistent with
the scar tissue that had formed from the fissures or the
tears of the skin around the anus and the anal skin that
cause the protrusions to come from the anal opening."
J.M. reported that his pain "immediately post
assault" was a seven or eight out of ten and that he
experienced pain during bowel movements of a seven out of
ten. Ms. Walker stated that the fissures and scar tissue
"in the degree" J.M. had would not have been caused
also reported during his medical examination that he was
intimidated by the mere presence of the Defendant. J.M.
reported that the Defendant did the following: touched or
fondled J.M., including his genitalia; kissed J.M.'s neck
and face; touched J.M.'s genitals with his mouth; had
J.M. touch the Defendant's genitals with his mouth; had
J.M. touch or fondle the Defendant's genitals; anally
penetrated J.M. with his penis; touched J.M.'s anus; had
J.M. anally penetrate the Defendant with J.M.'s penis;
and had J.M. touch the Defendant's anus. J.M. identified
the Defendant as his assailant. J.M. denied that the
Defendant used condoms and stated that the Defendant used
hair grease as a lubricant. J.M. reported that the Defendant
ejaculated into a towel. J.M. also reported a "[p]rior
history of threat or violence" with the Defendant and
that the Defendant had been sexually assaulting J.M. since
"the summer before [J.M.] went into fifth grade."
Walker documented that J.M. was "very cooperative,
answers questions age appropriately, may pause to find words
and describe what he is saying." Ms. Walker compared
J.M.'s anal anatomy with "women who have had vaginal
births, possibly . . . hemorrhoids at some point. 40s,
50s." In Ms. Walker's opinion, the large folds of
skin around J.M.'s anus were caused by "repeated
trauma over . . . a long period of time[.]" She stated
that no medical procedures or history were documented that
indicated a problem with J.M.'s anal anatomy.
cross-examination, Ms. Walker testified that due to
J.M.'s age, even if he had chronic constipation from
infancy, it would not have caused enough "traumatic
injury" to cause the anal skin folds to form. Ms. Walker
stated that J.M. would have had to be anally penetrated
"[m]ultiple" times and that it "would be a
chronic situation," although she did not know an exact
number. She noted that the length of time during which the
penetrations occurred was not as relevant as the number of
penetrations. Ms. Walker estimated that fifty or more
penetrations would be required to create the skin folds. Ms.
Walker stated that she would not reconsider her opinion if
J.M. failed to identify fifty such "attacks."
Walker testified that she had examined "several younger
male children" between ages five and seven, "two or
three" adolescent males, including J.M., and
"several adult male[s, ]" and that in her
experience, there was no other explanation for the tear above
J.M.'s buttocks than the buttocks being jerked apart. She
acknowledged that J.M. did not report such an event during
his examination. Ms. Walker was aware that J.M. had undergone
a previous hernia operation. When asked whether there could
have been other medical reasons for J.M.'s anal anatomy,
Ms. Walker stated, "There were no other medical reasons
disclosed to me." Ms. Walker acknowledged that
J.M.'s story informed her examination, although she
stated that she "documented what [she] saw." Ms.
Walker described J.M.'s tone as that of a normal
thirteen-year-old boy, and she denied that his affect was
"wooden." To Ms. Walker's knowledge, J.M. did
not claim the Defendant used violence against him. Ms. Walker
stated that she had never examined a homosexual man and that
what she knew about anal skin folds was "more of a
medically known thing than . . . a forensic thing." She
acknowledged that "[e]xtremely hard bowel movements can
occasionally cause anal fissures." Ms. Walker stated
that due to J.M.'s age, as well as "the fact that
[neither] chronic constipation nor medications taken for
chronic constipation were disclosed to [her]," the
possibility that his injuries were caused by constipation was
not taken into consideration. Ms. Walker further stated that
her observations were based upon the information J.M. gave at
the time of the examination. Ms. Walker noted, though, that
she did not agree with the statement that no differences
existed between fifty instances of anal penetration and fifty
"very tough bowel movements."
Walker testified that bowel movements large enough to cause
the type of injury she observed in J.M. would be too large to
be passed "naturally . . . . Normally when you have
stool that is that large it causes bowel obstruction[.]"
In contrast, she stated that "[f]orceful" anal
penetration, "whether it [was] ever so slight,
attempted, or successful, [could] cause a large amount of
trauma, especially if the person . . . is resisting[.]"
Ms. Walker noted that whereas the brain and body worked
together to evacuate a bowel movement, she did not know of
"many [thirteen]-year-old boys who sit and willfully
allow someone to forcefully [anally] penetrate" them in
such a way that J.M.'s injuries would be produced. Ms.
Walker stated that the other two previous examinations she
had performed on adolescent boys did not involve anal
penetration. Ms. Walker further stated that although one
instance of anal penetration could cause tearing, five such
instances would not cause scar tissue or skin tags to form.
The tissue would generally heal such that no evidence of
penetration in the form of scar tissue would be present.
asked to describe "the difference in the skin tags that
might form" in individuals who experienced chronic
constipation and a person who was anally penetrated, Ms.
Walker responded that each individual was different. Ms.
Walker reiterated that a "bowel movement large enough to
chronically cause that many skin tears in the anal opening .
. . you would not have the ability to naturally eliminate
that from your body. A bowel movement that large would cause
a bowel obstruction." She noted that, comparing the anus
to a clock, "you may have skin tags [caused by frequent
anal tearing due to bowel movements] at the [twelve] and the
[six] o'clock position. Other positions of those skin
tags usually are caused by something else other than . . .
chronic constipation." Ms. Walker stated that large
bowel movements might cause "small skin tags"
depending on how the person healed.
Ms. Walker's testimony and outside the presence of the
jury, defense counsel objected to Ms. Walker's
qualification as an expert witness, arguing that "it
seems to indicate that she did not have the background she
indicated in her voir dire[.]" The court overruled the
testified that his date of birth was December 14, 2001, and
that at the time of trial he was age fifteen. His mother,
A.M., married the Defendant in Wisconsin when J.M. was in
third or fourth grade. J.M. stated that the Defendant wore a
black ankle bracelet in Wisconsin, that the family moved to
Tennessee before J.M. started fifth grade, and that the
Defendant did not wear the ankle bracelet in Tennessee. J.M.
said that the Defendant's behavior changed once he
stopped wearing the ankle bracelet. Specifically, in
Wisconsin, the Defendant was "nice, kind, he was nice to
[A.M., and they] used to go fishing[.]" Once the
Defendant got the ankle bracelet off, it "was like [he]
just changed bodies." The Defendant told J.M. that he
wore the ankle bracelet for "[h]is heart[, ]"
although J.M. "[knew] different[ly] now[.]"
family initially lived in a house on Main Street in Ripley,
Tennessee, for about one year, then on College Street for one
year, and finally on Spring Street for one or two years
before J.M. moved to Chicago with his biological father.
A.M., J.M.'s three sisters, and the Defendant lived with
J.M. at those locations in Tennessee. At some point when the
family lived on Spring Street, the Defendant and A.M. argued,
and the Defendant moved into a trailer with Carthell.
went to the Defendant's trailer "[a] lot" to
play video games, sometimes accompanied by three of his
friends. J.M. spent the night at the trailer and had clothes
there. J.M. stated that on January 16, 2015, he had a meeting
at school with the principal, A.M., and some teachers
regarding whether he would be sent to an alternative school
for "acting out." J.M. acknowledged that he had
been acting out, and he stated that he was angry due to
"[t]hings that [were] going on at home. Don't know
really why I was . . . taking my anger out on everybody
else." J.M. clarified that he referred to "[t]he
things with [the Defendant]." J.M. stated that at the
meeting, he said that the Defendant "was touching"
him. After he made this statement, A.M. stayed in the room;
the teachers left; and a police officer came into the room.
J.M. did not remember where A.M. went while the police
officer spoke to him.
testified that he did not tell A.M. about the abuse because
he was "afraid." He said, though, that he told A.M.
about an instance in which he and the Defendant watched
pornography together when J.M. was in fourth grade.
testified that on January 15, 2015, he was at the
Defendant's trailer with his friends and Carthell.
Carthell left to visit his girlfriend. J.M. and his friends
played video games on an Xbox. J.M.'s friends were picked
up by their mother. J.M. went to the "back bedroom"
to retrieve "the game box" and the Defendant
followed him. The Defendant told J.M. to pull down his pants;
the Defendant pulled down his own pants; the Defendant
applied a lubricant to his penis and sat on the bed; and the
Defendant told J.M. to "sit on" his penis. J.M.
faced away from the Defendant and did as he was told; the
Defendant ejaculated. The Defendant told J.M. to put his
mouth on the Defendant's penis, and J.M. complied. The
Defendant told J.M. "to get in a dog position" on
the bed; J.M. complied; and the Defendant anally penetrated
J.M. with his penis before ejaculating into a towel. When
asked "how long this had been going on," J.M.
estimated five years. J.M. stated that "things"
also happened at the Spring Street, College Street, and Main
testified that on one occasion in the Spring Street house,
the Defendant went to an upstairs closet, applied petroleum
jelly to his penis, came into J.M.'s bedroom, and anally
penetrated J.M. J.M. was positioned with his back on the
floor with his legs over his head. On another occasion at the
Spring Street house, the Defendant told J.M. to put his mouth
on the Defendant's penis while they were in J.M.'s
bedroom. On yet another occasion at the Spring Street house
in the basement, the Defendant took "two covers down
[and] put them on the floor" and applied "another
grease to his penis"; the Defendant anally penetrated
J.M; the Defendant put his mouth on J.M's penis and told
J.M. to put his mouth on the Defendant's penis; and J.M.
put his mouth on the Defendant's penis.
testified that when the family lived on College Street, the
house was small and they shared bedrooms. A.M. worked
delivering food to elderly people, and the Defendant had a
key to A.M.'s workplace. When no one else was in the
building, the Defendant took J.M. to A.M.'s
workplace's reception area, applied cocoa butter to his
penis, and told J.M. to "sit on it."
testified that when the family lived on Main Street, on one
occasion, A.M. was doing J.M.'s sister's hair in a
front room when the Defendant took J.M. into A.M.'s
bedroom. The door was closed; the Defendant did not apply
lubricant to his penis and told J.M. to sit on it; and the
Defendant anally penetrated J.M. as the Defendant sat on the
bed. The Defendant did not undress, and J.M. had his pants
pulled down in the back. On another occasion, A.M. and
J.M.'s sisters went to church, but the Defendant told
A.M. falsely that J.M. had thrown up so that the Defendant
and J.M. would stay home. In the front room of the house, the
Defendant anally penetrated J.M. without using lubricant.
J.M. was in "a dog position" with "one leg . .
. off the couch[.]" J.M. stated that generally,
"either . . . somebody [was] home and [the Defendant]
would tell me to come into the room and lock - I mean, not
lock the door - close the door, or they would be gone to
church." One time, the Defendant told A.M. that they
needed milk to get her to leave the house, but J.M.'s
sister remained in the house.
testified that it "d[id]n't feel right" when
the Defendant anally penetrated him and that it sometimes
hurt. J.M. stated that after the meeting at his school, he
told his teachers, family members, a friend, a doctor, a
foster parent, a person at the "Carl Perkins
Center," a police officer, and a social worker what the
Defendant had done to him. J.M. also testified in a
preliminary hearing. J.M. affirmed that he was telling the
truth and stated that when he was living with his father in
Chicago, Carthell called him and said, "Why did you
tell, and couldn't [you have] told any other of our
family members." J.M. said that the Defendant sent
letters to A.M. and that Carthell signed them and claimed to
have authored them.
cross-examination, J.M. testified that he told people at his
school about certain details of his memories of the abuse,
like having been in a dog position. J.M. stated that he
learned the term "dog position" from the Defendant.
J.M. said that he had reviewed his previous statements with
the prosecutor and Investigator Hickman for two days prior to
the trial. He acknowledged that they had to remind him of
some of the details of his previous statements. J.M. denied
having been shown his previous written statement or
discussing "what's happening down here" with
anyone in Chicago. J.M. stated that when he testified, he
tried to remember what happened, not the contents of his
testified that when he was in fourth grade, he told A.M. that
he and the Defendant watched pornography together and that
A.M. "put a stop to that." J.M. agreed that he
learned "all this sexual stuff" while watching
pornography with the Defendant. J.M. stated that he watched
pornography by himself while living in each of the three
houses in Ripley. He said, though, that the pornography did
not depict homosexual men. J.M. noted that relative to the
Defendant's living with the family, while they lived in
Ripley, the Defendant "was with [the family], but he
wasn't with [the family]." J.M. did not remember
testifying at the preliminary hearing that nothing ever
happened with the Defendant when A.M. or J.M.'s sisters
were home. When asked whether he had testified during direct
examination that he anally penetrated the Defendant, J.M.
stated that he had testified to this fact at the trial and
had also reported it to a counselor. When asked whether he
had a "real difficult time remembering things,"
J.M. responded, "Somewhat."
testified that he had been to an alternative school once
before the January 16 meeting. He agreed that after reporting
the abuse, he did not have to return to the alternative
school and instead went to foster care for one or two months.
J.M. stated that foster care was "okay," that he
went to another school, and that he did not have any problems
at the new school. J.M. did not have any problems in the
school he attended in Chicago once he lived with his father,
although he said that he was a "[l]ittle bit" angry
with A.M. for failing "to watch out for" him. J.M.
acknowledged that he made a recent post on Facebook in which
he expressed anger at A.M. and his sisters.
testified that on January 14, 2015, his friends, who were at
the Defendant's trailer, asked J.M. to come there. He
acknowledged, though, that A.M. also took him there so the
Defendant "could talk to [J.M.] about the coming
disciplinary action[.]" J.M. said that his school called
the Defendant about J.M.'s having received a "pink
slip." While J.M. was at school, the Defendant boxed up
all of J.M.'s toys and took them to the Defendant's
trailer. J.M. stated, though, that his games were kept at the
Defendant's trailer from "way back" as a
punishment. J.M. stated that at the trailer and before his
friends left, he and the Defendant spoke about the pink slip.
The Defendant took J.M. into the back room and
"whipped" him with a belt; J.M. had red marks that
faded after about ten minutes. Afterward, J.M. played games
at the trailer for about two hours; Carthell left to see his
girlfriend; J.M.'s friends left; and then the Defendant
took J.M. into the back room for sex. Carthell did not return
before A.M. picked up J.M. J.M. stated that he knew the
difference between telling the truth and a lie.
redirect examination, J.M. testified that the Defendant had
J.M.'s Xbox since the time he moved into the white
trailer and that the Defendant took J.M.'s PlayStation 3
to the trailer one week after J.M. received it as a Christmas
gift. Any time J.M. or his friends wanted to play J.M.'s
video games, they either had to bring a game console to the
Spring Street house or go to the Defendant's trailer.
J.M. noted that his friends did not have many games, so they
went to the trailer "a lot."
testified that she met the Defendant in Wisconsin in October
2010, and they were married in 2012. A.M. heard in the
community that the Defendant was a sex offender; she brought
it up with him; and he told her that "he had been
incarcerated several years for rape." The Defendant wore
an ankle monitor, which was removed before they moved to
Tennessee. The Defendant did not tell A.M. "what his
rules were" in regard to being a registered sex
offender. In March 2012, the Defendant moved to Tennessee,
and A.M. followed later with J.M. and J.M.'s sisters.
They first lived on Main Street for one year, College Street
for about six months, and then Spring Street. The Defendant
lived with them until early spring 2014, when he moved to the
trailer after a disagreement regarding the children. A.M.
stated, though, that the Defendant was "bouncing
between" the trailer and the Spring Street house and
that the Defendant spent the night and kept belongings in
both places. Most of the Defendant's mail went to the
September 23, 2014, the police came to the Spring Street
house looking for the Defendant; A.M. told them the Defendant
was at work and had moved out. For the first time, A.M. was
told that the Defendant was not supposed to be living there.
A.M. noted that at the Main Street house, officers
"would come to the house to check up on" the
Defendant when the children were outside waiting for the
school bus and that the officers never said anything to her.
The Defendant did not tell A.M. that he was not supposed to
live with children other than his own biological children.
the family moved to Tennessee and the Defendant had his ankle
tracker removed, at first "[t]hings were pretty
good[.]" Six or seven months after the Defendant and
A.M. married, things went "downhill," and they
argued about the Defendant's spending "a lot of time
outside in the streets" and spending time with Carthell.
Carthell lived with them for a time at the Main Street house.
After the Defendant moved to the trailer, J.M. and his
friends went to the trailer to play video games and
"hang out with" the Defendant and Carthell. A.M.
knew that this was not permissible, but she allowed it
because the Defendant stated that he "didn't do
anything that they said [he] did to those children" and
that he pled no contest on the advice of his attorney. The
Defendant told A.M. that he would never hurt her children and
that she had given him a family. A.M. believed and trusted
the Defendant and thought that the Defendant deserved a
J.M. was age ten, he told A.M. that he and the Defendant
watched pornography. A.M. and the Defendant argued about it;
the Defendant apologized and claimed it was a lapse in
judgment; the Defendant stated that A.M.'s children were
the most important thing in his life; and the Defendant said
it would never happen again. A.M. had been molested as a
child and regularly asked the children if the Defendant
"ma[d]e [them] feel uncomfortable." J.M. responded,
"I got this. No, mom, I'm fine. I'm fine."
A.M. stated that J.M. referred to the Defendant as
"dad" and had a better relationship with the
Defendant than his biological father. The Defendant and J.M.
went fishing together. A.M. opined that J.M. kept the abuse
from A.M. because he loved the Defendant.
began working for Meals on Wheels in 2014, which was based in
a building that was connected to a day care building. A.M.
noted that the day care building was white. The Defendant