State v. Ackerman
| Decision Date | 13 July 2012 |
| Docket Number | No. M2010–01979–CCA–R3–CD.,M2010–01979–CCA–R3–CD. |
| Citation | 397 S.W.3d 617 |
| Parties | STATE of Tennessee v. Brandon ACKERMAN. |
| Court | Tennessee Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Mark C. Scruggs, Nashville, Tennessee, for the appellant, Brandon Ackerman.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Brian Holmgren and Kristin Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.
A Davidson County Criminal Court jury convicted the defendant, Brandon Ackerman, of four counts of soliciting sexual exploitation of a minor,1seeT.C.A. § 39–13–529(b)(1) (2006); two counts of child abuse, see id. § 39–15–401; and one count of rape of a child, see id. § 39–13–522, and the trial court imposed a total effective sentence of 27 and one half years' incarceration, 20 years of which was to be served at 100 percent by operation of law, see id. § 39–13–523(b). In this appeal, the defendant asserts that the trial court erred by excluding the testimony of his expert witness, by admitting into evidence a video recording of the victim's forensic interview, by permitting three State's witnesses to testify regarding the hearsay statements of the victim, and by denying his motion to suppress his pretrial statements to his ex-wife and to police. Because the trial court erroneously admitted into evidence the video recording of the forensic interview and the victim's hearsay statements to three witnesses and because those errors cannot be classified as harmless, the judgments of the trial court are reversed, and the case is remanded for a new trial.
The Davidson County grand jury charged the defendant with four counts of soliciting sexual exploitation of a minor, six counts of aggravated sexual battery, three counts of aggravated rape of a child, three counts of rape of a child, and simple possession of marijuana related to the abuse of his daughter, M.A., between January and October 2006.2
At trial, M.A. testified that she was born on August 20, 2002, and that the defendant was her father, although she could not identify the defendant at the time of trial because she had not seen him in nearly three years. The victim recalled that she visited the defendant occasionally when she was four years old and that she slept in the bed with the defendant when she spent the night at his residence. She also recalled that the defendant took a bath with her one time. M.A. could not recall playing a “puppy game” with the defendant or telling anyone about playing such a game. M.A. said that she did not know why she no longer visited the defendant and had no independent recollection of having participated in a forensic interview. M.A. testified that she had viewed the video recording of her forensic interview on the eve of trial, but that viewing did not refresh her memory. She said that she made the statements contained in the video and that the statements were “the truth.” M.A. testified that she recalled the defendant's touching her “koochie” with “[h]is hands and tongue” because “the video reminded” her. She could not recall having ever seen the defendant's penis. M.A. denied telling a friend of her mother's, Melissa Miller, about the defendant's touching himself, “peeing,” or putting his mouth on any part of her body.
During cross-examination, the victim said that she did not remember telling the forensic interviewer that a boy at school had touched her inappropriately. M.A. testified that she watched the video recording with her mother, grandmother, and aunt, and that the three women told her that it was important to repeat what she had said on the video. M.A. reiterated that she had no independent recollection of the defendant's having touched her vagina and that her only recollection came from having reviewed the video recording.
Melissa Miller testified that she lived with the victim and the victim's mother, Amanda Ackerman, for approximately four or five months in 2006 and early 2007 and often cared for the victim during that time. During the first half of October 2006, Ms. Miller cared for the victim while Ms. Ackerman was out of town on business. Ms. Miller testified that during that week, the victim told her that the defendant “licked her koochie” while playing “a puppy dog game.”
Ms. Miller said that she waited to tell Ms. Ackerman about the victim's disclosure until she could do so face-to-face, which ended up being more than a week later. Ms. Miller recalled that the victim was present during her conversation with Ms. Ackerman, “[b]ut she wasn't listening.” Ms. Ackerman then asked the victim about the abuse, and the victim told Ms. Ackerman “pretty much[ ] the same thing” she told Ms. Miller. The two women then dropped the victim off with Ms. Ackerman's mother, informed the grandmother “what was going on,” and went to confront the defendant at his apartment. Ms. Miller said that the defendant would not make eye contact with Ms. Ackerman during the conversation and that he showed no emotion in response to the allegations. She said the defendant denied the allegations, saying that he only saw or touched the victim when she was naked when he was giving her a bath.
Ms. Miller testified that when they returned to Ms. Ackerman's mother's house, Ms. Ackerman told the victim to tell her grandmother what had happened. The victim did so, and she drew a picture of her and the defendant lying “on a bed playing the puppy dog game.”
During cross-examination, Ms. Miller said that Ms. Ackerman never told her that the defendant had a problem wetting the bed or masturbating while asleep. She conceded that approximately one month prior to the victim's disclosure, the defendant told Ms. Ackerman that the victim had made similar accusations against a boy in her class. Ms. Miller said that the victim told her that the puppy dog game involved the defendant chasing the victim and acting like a puppy and conceded that she did not ask the victim whether she was naked or clothed during the game. Ms. Miller acknowledged having had a sexual encounter with the defendant just prior to the victim's disclosure, but she claimed that the encounter was not consensual. Ms. Miller said that she was upset with the defendant following their encounter, but she did not contact the authorities.
Amanda Ackerman testified that she married the defendant in 2001 and that the victim was born on August 20, 2002. The couple divorced in November 2005. Ms. Ackerman insisted that the divorce was amicable, and the couple agreed on a visitation schedule of every other weekend. She said that in the summer of 2006, the victim told her that the defendant “had peed in the bed.” She said she asked the defendant about it, and the defendant denied it.
Ms. Ackerman testified that after Ms. Miller told her what the victim had said, she asked the victim about the game, and the victim said that the defendant “had licked her koochie and asked her to lick his, or made her lick his.” Ms. Ackerman said that the victim had never mentioned the puppy game before. She did not ask the victim whether she and the defendant were clothed during the game or how many times they had played the game. Ms. Ackerman testified that the victim also told her again that the defendant had peed in the bed and that “he would need to rub and play with his koochie in order to make it pee.”
Ms. Ackerman said that when she and Ms. Miller confronted the defendant with the victim's allegations, “[h]e very nonchalantly denied it.” She said that the defendant said “at one point ... that there was maybe a child at her school named Brandon that maybe she was getting him confusedwith.” She said that she was not aware of any sexual liaison between Ms. Miller and the defendant at the time the victim made her disclosure.
Ms. Ackerman testified that she stopped allowing the victim to visit the defendant after the victim made the allegations. At some point, Detective Greg Robinson asked her to participate in a controlled telephone call with the defendant “[t]o see if he was willing to provide any information.” An audio recording of that telephone call was played for the jury. During the conversation, Ms. Ackerman repeatedly promised the defendant that he would be permitted to see the victim again and that their lives would return to normal if he admitted that he had abused the victim. The defendant eventually told Ms. Ackerman that the victim had seen him masturbate in the bed and that it was possible that the victim had kissed his crotch over his clothes. The defendant admitted licking the victim “all over her body” during a game where he pretended to be a dog, but he said that they were both fully clothed and that the game was not sexual in nature. He said that he was sorry for having engaged in any activity that made the victim uncomfortable.
During cross-examination, Ms. Ackerman testified that she would not tell a lie even if her refusal to do so meant she would never see her daughter again but admitted that she had lied to the defendant during their recorded telephone conversation. She also admitted that she repeatedly told the defendant that he would not be permitted to see the victim again until he admitted the allegations. She specifically conceded telling him,
Ms. Ackerman conceded that the defendant told her in the summer of 2006 that the victim said that another child in her class had touched her inappropriately. She also admitted that the victim told the forensic interviewer that the same child had touched her inappropriately in the bathroom at school. She said that she made a report to the victim's daycare provider,...
To continue reading
Request your trial
-
State v. Cannon
...exclusion of the evidence is substantially important. Flood , 219 S.W.3d at 316 (citations omitted); see also State v. Ackerman , 397 S.W.3d 617, 633 (Tenn. Crim. App. 2012). The Defendant first contends that the trial court erred when it excluded evidence establishing how the two men incar......
-
State v. Davis
...not deprive the defendant of the meaningful opportunity to cross-examine that the Confrontation Clause requires”); State v. Ackerman, 397 S.W.3d 617, 641 (Tenn.Crim.App.2012) (holding that admission of victim's out-of-court statement did not violate the defendant's federal or state confront......
-
State v. Sanders
...the verdict. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.2008).III.Mr. Sanders's principal argument, based on State v. Ackerman, 397 S.W.3d 617 (Tenn.Crim.App.2012) (No Tenn. R.App. P. 11 application filed), is that L.S. was acting as an agent of the State when she elicited incriminating ......
-
State v. Smith
...S.W.3d at 434-35; State v. Rice, 184 S.W.3d 646, 673 (2006); State v. Rogers, 188 S.W.3d 593, 614 (Tenn. 2006)).State v. Ackerman, 397 S.W.3d 617, 633 (Tenn. Crim. App. 2012). As the trial court stated, Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure states:Information Not Subjec......