Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Williams

Court of Criminal Appeals of Tennessee, Jackson

January 14, 2020

G'WAYNE KENNEDY WILLIAMS a/k/a KENNEY WILLIAMS Count Elected Date Elected Event Count Conviction Action

          Assigned on Briefs May 7, 2019

          Appeal from the Circuit Court for Lauderdale County No. 9984 Joseph H. Walker III, Judge.

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Case Remanded

          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 Williams.

          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 of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall and James Curwood Witt, Jr., JJ., joined.




         This case arises out of the Defendant's sexually abusing his minor stepson, J.M., [1]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.[2] 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.

         The 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; -17-1324.

         A. Pretrial Motions.

         Prior to trial, the Defendant, represented by the Public Defender's Office,[3] 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.[4]

         On 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.

         B. Trial.

         At 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 only.

         J.M. 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.

         After 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.

         Ms. 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 office.

         On 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 the search.

         Investigator 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. Williams."[5]

         Investigator 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.

         Investigator 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 treatment.

         Samples 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."

         Investigator 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.

         Investigator 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.

         Investigator 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.

         Investigator 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 family dog.

         On 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.

         The 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.

         Investigator 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 trailer.

         Investigator 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.

         Traci 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 three trials.

         Defense 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.

         On 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.

         When 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 his girlfriend's.
[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 urination.
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.

         Ms. 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 importance.

         Ms. 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 the anus.

         She 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 happened."

         Ms. 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 by constipation.

         J.M. 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."

         Ms. 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.

         On 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."

         Ms. 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."

         Ms. 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.

         When 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.

         After 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 objection.

         J.M. 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[.]"

         The 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.

         J.M. 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.

         J.M. 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.

         J.M. 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 Street houses.

         J.M. 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.

         J.M. 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."

         J.M. 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.

         J.M. 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.

         On 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 previous statements.

         J.M. 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."

         J.M. 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.

         J.M. 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.

         On 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."

         A.M. 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 trailer's address.

         On 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.

         When 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 second chance.

         When 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.

         A.M. 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 sometimes ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.