State v. Looney
| Decision Date | 07 April 2016 |
| Docket Number | No. M2014-01168-CCA-R3-CD,M2014-01168-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. MARK TRACY LOONEY |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Circuit Court for Rutherford County
A Rutherford County jury convicted the Defendant, Mark Tracy Looney, of four counts of rape of a child, one count of felony child abuse, and one count of misdemeanor child abuse. The trial court ordered the Defendant to serve an effective sentence of fifty years in prison. On appeal, the Defendant asserts that the trial court erred when it: (1) denied his motions for mistrial; (2) denied his motion to suppress his pretrial statements; (3) refused to grant a new trial based upon the State's failure to provide a recorded statement by the victim; (4) admitted inadmissible testimony from an expert witness; (5) allowed a witness to refresh her memory by viewing a video recording; (6) determined that the evidence against him is sufficient to sustain his convictions; (7) failed to grant a mistrial in light of a juror's failure to disclose exposure to pretrial publicity; and (8) ordered consecutive sentencing. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.
Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Mark Tracy Looney.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Jennings H. Jones, District Attorney General; and Nathan S. Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONThis case arises from the Defendant's interactions with his wife's children. The Defendant's wife had three children from a previous marriage, J.H., T.H. and A.H.1 Together the Defendant and his wife had a child, J.L. Pursuant to a parenting plan, J.H., T.H., and A.H. stayed with their mother at the residence she shared with the Defendant ("the Looney residence"). It was during the Defendant's wife's parenting time with her children that the Defendant's alleged physical abuse of J.H. and T.H. and sexual abuse of A.H. occurred.
On July 3, 2012, a Rutherford County grand jury indicted the Defendant for four counts of rape of a child (involving A.H.), two counts of aggravated sexual battery (involving A.H.), and two counts of child abuse (involving J.H. and T.H., respectively). On August 8, 2012, the Defendant filed a motion to suppress his pretrial statements, and, after a hearing, the trial court denied the motion.2 The Defendant's trial on these charges began on December 3, 2012, where the parties presented the following evidence: Bert McCarter, a Murfreesboro attorney, testified that the victims' father, ("Father"), who was divorced from their mother, the Defendant's wife, had contacted him approximately eighteen months prior seeking a restraining order and modification of the parenting plan involving J.H., T.H., and A.H. The restraining order was based upon allegations of the Defendant's physical abuse against J.H. and T.H.
Mr. McCarter testified that a temporary ex parte order was granted and fifteen days later a hearing on the restraining order was held and the request granted. Following the hearing on the restraining order, Mr. McCarter learned of additional allegations involving A.H. He could not recall the specific date but stated that "it was brought to [his] attention about some sexual allegations at some point." Mr. McCarter agreed that the petition contained an allegation of inappropriate touching by the Defendant and also by A.H.'s maternal grandmother.
Carla Davis testified that she was employed by Youth Villages and worked with "Specialized Crisis Services." She explained that in her work with Youth Villages she responded to crisis situations with children including "suicidal, homicidal, or psychosis." Ms. Davis stated that she met J.H. through crisis assessment and that he was eight or nine years old at the time. She recalled that J.H. presented with a "suicidal gesture" that had occurred at school. Ms. Davis met J.H. at the Middle Tennessee Medical Center emergency room to assess him. After meeting with J.H., Ms. Davis concluded that hewas "struggling with . . . changes in the family that were happening." Ms. Davis recommended counseling services that included the family participating in sessions.
On cross-examination, Ms. Davis agreed that her recommendations also included J.H.'s parents, Father and his wife, meeting with "the school staff the next day about bullying," a possible change of classrooms "to get [J.H.] away from [this other student]," and role playing with J.H. on how to inform his teacher he was being bullied. Ms. Davis testified that in her assessment she had identified conflict with school peers as an issue, in addition to conflict between J.H. and the Defendant.
J.H. testified that he was eleven years old at the time of trial and in the fifth grade. He stated that he lived with his father and step-mother.3 He identified the Defendant in court as his mother's husband, his step-father. J.H. recalled the last time he had seen the Defendant during spring break of his third or fourth grade year in school. J.H. said that, during that spring break, the Defendant, the Defendant's wife, J.L., A.H., J.H., and C.H. all stayed at the Looney residence. J.H. described the sleeping arrangement saying that he and C.H. slept in a room together while A.H. slept "in the living room in the chair." The Defendant, his wife, and J.L. all slept in a bedroom together.
J.H. testified about an incident that had occurred one morning while staying at the Looney residence during spring break. The two boys had fallen asleep the night before while watching television but were to have turned off the television before going to sleep. The next morning, the Defendant came into the room where the boys were sleeping and "raised [J.H.] up by the neck." J.H. said that C.H. "tried to save" him but that the Defendant pushed C.H. down when C.H. attempted to intervene. J.H. said that, during this incident, he felt like he "was about to die" and was scared. At the time, Looney was using the computer in the other room. When the Defendant released J.H., J.H.'s head hit the wall "hard" making a "hollow sound." J.H. said that, after the Defendant released him, his neck still hurt "a lot."
J.H. recalled another occasion when the Defendant's wife, C.H., and he were "watching" J.L. while the Defendant cooked breakfast. J.L. was in his playpen but "somehow" got out and fell onto a toy truck. J.H. said that the Defendant was not angry with his wife but rather he became angry at J.H. and C.H. J.H. said that the Defendant kicked him in his stomach before he fled to the bathroom and that the Defendant kickedand "threw" C.H., who "fell into the kitchen into the microwave and cabinets." J.H. confirmed that "no one" tried to help him during this incident.
J.H. testified about "[g]oing mushrooming" with the Defendant. He explained that he would go with the Defendant into the woods across the street or to another wooded area near "someone's" house to look for mushrooms. J.H. did not know ultimately what became of the mushrooms they picked, but he said that the Defendant would take the mushrooms "to someone's house." J.H. recalled on one occasion when the Defendant took only A.H. to look for mushrooms. J.H. said that he was "very worried" and "afraid [A.H.] might like get those spiky vines prickle her" or that she might get scratched on her face by twigs. J.H. said that the Defendant and A.H. were gone for a long time and "everyone" got worried. At some point "Mamaw" drove the Defendant's wife, J.H., and C.H. to the area where the Defendant and A.H. were supposed to be looking for mushrooms. J.H. and C.H. went a short way into the woods and unsuccessfully called out for the Defendant and A.H.. J.H. said that when the Defendant and A.H. did finally return, A.H.'s legs were "prickled by the thorny vines." J.H. recalled that this was the first and only time that A.H. went looking for mushrooms, and it was "the day before the last day of spring break."
J.H. testified that the Defendant treated A.H. and J.L. differently than he treated J.H. and C.H.. He said that the Defendant was "always very kind" to A.H. and to J.L. J.H. recalled an incident that occurred at school following spring break where he wrapped paper towel around his neck in the bathroom. He said that he did so because of bullying he encountered at school but also because he believed the Defendant might kill him. J.H. described the Defendant as "a very mean person, and not very caring to a lot of people." He agreed that he was scared of the Defendant "sometimes."
J.H. testified that he did not initially tell his father and step-mother about the Defendant grabbing him by the neck because he was fearful that the Defendant might "come after" him. He did tell his father and step-mother, however, after he was taken to the hospital following the incident at school. He said that, after his parents learned of the Defendant's abuse, he no longer had to go to the Looney residence.
C.H. testified that he was nine years old at the time of trial but had been seven years old during spring break of 2012. C.H. identified a photograph of the Looney residence, and he said that the Defendant, his wife, and J.L. lived at that residence. He said that his grandmother, "Claudia," would also "visit" the residence. C.H. described his relationship with the Defendant as "pretty good" until J.L. was born. When asked about the incident when the boys failed to turn off the television, C.H. said:
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