State v. Love, E2015-02297-CCA-R3-CD

Decision Date21 March 2017
Docket NumberNo. E2015-02297-CCA-R3-CD,E2015-02297-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. TROY LOVE
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Knox County

No. 101879

Steven Wayne Sword, Judge

The Defendant, Troy Love, was found guilty by a Knox County Criminal Court jury of two counts of rape of a child, a Class A felony, and of aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-13-522 (2014) (rape of a child), 39-13-504 (2014) (aggravated sexual battery). He was sentenced to consecutive terms of twenty-five years each for the rape of a child convictions and to a concurrent term of ten years for aggravated sexual battery, for an effective sentence of fifty years to be served as a Violent Offender. On appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress his pretrial statement, (2) the court erred in denying the Defendant's pretrial motions relative to interaction between the victim and State agents and for a "taint hearing" to determine the victim's reliability, (3) the court erred in failing to conduct a pretrial hearing to corroborate the reliability of the Defendant's pretrial statements, (4) the court erred in denying the motion for a directed verdict and for judgment of acquittal, (5) the evidence is insufficient to support the convictions, (6) the court and the prosecutor improperly referred to "Count 8" despite the fact that only three counts were submitted to the jury, (7) the court erred in its jury instructions, (8) the sentence is improper, and (9) due process requires relief due to the existence of cumulative error. We affirm the rape of a child convictions, and we reverse the aggravated sexual battery conviction and remand for a new trial.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J., and ALAN E. GLENN, J., joined.

Megan A. Swain (on appeal) and Chloe Atkin Akers (at trial), Knoxville, Tennessee, for the appellant, Troy Love.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Charme Allen, District Attorney General; Christopher "Kit" Rodgers and Ashley McDermott, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Defendant's convictions relate to sexual abuse of his step-great-granddaughter. At the trial, the victim, who was nine years old at the time of the trial, testified that she knew the difference between a good touch, such as a hug, and a bad touch, which she described as "someone's touching you in a part you don't like." She said bad touches had occurred when the Defendant touched her "private parts" and her "butt" with his fingers and his mouth. Using a diagram of a female and a male child, she identified the areas corresponding to the "private" and "butt." She said the touching began when she was six years old and continued until she was eight. She said it occurred in the Defendant's living room and bedroom.

Relative to an incident in the Defendant's bedroom, the victim testified that as she watched television, the Defendant came into the room, went under the sheets, and touched her "private" with his mouth. She said the Defendant's actions made her sad.

Relative to an incident in the Defendant's living room, the victim testified that as she napped on the couch, the Defendant came to the couch where she was sitting, that she moved to the end of the couch, and that the Defendant touched her private with his finger and his mouth. She thought she was in second grade when this incident occurred.

Relative to an incident in the movie room at her old house, the victim testified that she sat on the couch, wore "footsies," and watched a movie. She said the Defendant unzipped her clothing and touched her private with his finger. She said his finger did not go inside her.

When asked whether the Defendant touched her privates on any other occasions, the victim said he did not. She said the Defendant never put anything, including his finger or his private, in her private. She likewise stated that she could not recall any other incidents in which he touched her body with other parts of his body.

The victim testified that the Defendant's wife had passed away, that she had spent a lot of time with the Defendant and his wife, and that she visited frequently at their house. She said she called the Defendant "Troy."

The victim testified that when she was in second grade, her mother and her grandmother took her to a place with a Wii gaming system and that she talked to a woman and made drawings with her. She said she told the truth to the woman and didnot tell her anything that was not true. She said her mother and grandmother were not in the room when the woman talked to her. She recalled the woman's stating that video cameras were recording what happened. She agreed she told the woman that her "grandpa" had touched her in places she did not like. She agreed she told the woman the incidents began after the Friday on which the victim had her tonsils removed. She agreed that the incident she described in the Defendant's bedroom occurred on the Sunday after her tonsils were removed and that she had told the woman who interviewed her that she had asked to go to the Defendant's house that day. She agreed she had told the woman that she went home on Monday and told her mother on Tuesday about the touching. She agreed that the woman drew a timeline based on the interview, and the timeline was received as an exhibit.

The victim testified that she did not remember the woman asking her if the Defendant ever put his private in her private. After reviewing a portion of the video recording outside the presence of the jury, the victim testified that watching a video recording had helped her remember what she said. She said she told the woman the Defendant had put his private in her private. She did not recall if the woman asked how the victim's body felt when the Defendant did this, but she later said she remembered telling the woman her body felt tingly after the Defendant put his private in her private. She remembered telling the woman that the Defendant lay on top of her when he put his private in her private. She recalled telling the woman that the Defendant did not have to do anything to his private part before putting it inside her and that it was inside her, not just close to her private part. She remembered telling the woman that she was five years old the first time the Defendant put his private part in her private part. She recalled telling the woman that the Defendant put his private part in hers seven or eight times and that she never saw the Defendant's private part. The victim recalled telling the woman that she did not remember how the Defendant's private part felt.

The victim identified a drawing she made for the woman who interviewed her, and it was received as an exhibit. She recalled telling the woman that the drawing showed "where the pee comes out of." She recalled telling the woman that when she went to the bathroom "that night," she saw something that looked like "boogers" in the part of her underwear that "went under her private."

The victim acknowledged that she had testified that the Defendant did not put his finger in her private. She remembered telling the woman who interviewed her that the Defendant had put his finger in her private, and she recalled showing the woman what the Defendant did with his finger but did not recall what she had done.

The victim testified that she had her tonsils removed when she was seven and one-half years old and that she told her mother about the abuse after she had her tonsils removed. She said she told "Jessica" about the abuse before she told her mother. She didnot recall what she told the woman who interviewed her when the woman asked why the victim told Jessica about the abuse.

The victim acknowledged her previous testimony that she did not remember what she told the woman who interviewed her about what the Defendant did with his finger inside the victim and said that watching the video recording had not helped her remember. A portion of the recording was played for the jury, and the court noted that it pertained to "this question that [the prosecutor] just asked [the victim]." The court instructed the jury that its consideration of the recording was limited to matters concerning the victim's credibility and was not to be considered as substantive evidence.

The victim testified that after viewing the recording, she recalled why she decided to tell Jessica about the abuse. The victim said she told the woman who interviewed her that she told Jessica because it was something important. The victim acknowledged that in the recording, she told the woman that she and Jessica had talked about their favorite people and that the victim had said her "uncle" was her favorite person because he had touched her "in the bad spots." The victim testified that no one other than the Defendant had touched her in "private spots."

Knox County Sheriff's Detective Miranda Spangler testified that she spoke by telephone with the victim's mother on January 14, 2013. She said she met with the victim's mother and the victim's grandmother and conducted a brief interview of the victim's mother. Detective Spangler said she asked the victim's mother to participate in a "one-party-consent call" with the Defendant, which Detective Spangler said involved a person making a telephone call with a detective guiding what the person said. Detective Spangler said the person who made the call would know that the call was being recorded but the recipient would not.

Detective Spangler testified that the victim's mother made multiple one-party-consent calls to the Defendant. Detective Spangler said that because the victim's mother had blocked the Defendant's telephone...

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