State v. Owens, No. E2007-02296-CCA-R3-CD (Tenn. Crim. App. 12/22/2009)
| Decision Date | 22 December 2009 |
| Docket Number | No. E2007-02296-CCA-R3-CD.,E2007-02296-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE, v. TOMMY JOE OWENS. |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Campbell County; No. 12314; E. Shane Sexton, Judge.
Judgments of the Criminal Court are Affirmed in Part; Reversed in Part; Modified in Part and Remanded.
J. Stephen Hurst, LaFollette, Tennessee, for the appellant, Tommy Joe Owens.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Paul Phillips, District Attorney General and Scarlette E. Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On June 14, 2004, the victim, H.S.1 was recovered by police officers from a private home and brought for treatment to the East Tennessee Children's Hospital. The doctors treated the child for multiple injuries including a cauliflower ear, a broken nose that had healed incorrectly, and eyes matted shut from a chemical burn. Appellant, Tommy Joe Owens, is the father of the victim. A Campbell County Jury convicted Appellant of three counts of aggravated child abuse and one count of aggravated child neglect. He was sentenced to twenty-five years for each aggravated child abuse conviction and to twenty years for the aggravated child neglect conviction to be served consecutively for an effective sentence of ninety-five years. Appellant bases his appeal on the following issues: (1) whether the trial court erred in denying Appellant's motion for judgment of acquittal; (2) whether taped statements of a non-testifying witness constituted Brady material; (3) whether the trial court properly denied Appellant's request to call the Assistant District Attorney as a witness; (4) whether the trial court erred by failing to require the State to disqualify itself as prosecutor; (5) whether the trial court erred in failing to assist Appellant obtain access to a witness; (6) whether the trial court erred in allowing photographs of the victim into evidence; (7) whether the trial court erred in limiting the testimony of Appellant's expert witness; (8) whether the trial court erred in imposing Appellant's sentences; and (9) whether the trial court denied Appellant a public trial. After a thorough review of the record, we reverse Appellant's conviction for aggravated child abuse with regard to the injury to H.S.'s nose. We affirm the other two aggravated child abuse convictions. In addition, we conclude that Appellant's sentences must run concurrently, rather than consecutively. Therefore, we affirm in part, reverse in part, modify in part, and remand to the trial court for entry of judgment in accordance with this opinion.
R.S.2 is the mother of H.S. H.S. was born on March 6, 2001. R.S. and Appellant lived together around the time that H.S. was born. They lived across the street from Appellant's parents. While they were living together, Appellant was officially declared to be H.S.'s father following DNA testing. R.S. and Appellant separated in 2002. R.S. and Appellant briefly reunited but separated again. The second time they separated, R.S. and H.S. went to live with R.S.'s grandmother. After R.S. and Appellant separated, Appellant rarely visited H.S. On November 10, 2003, H.S. was with Appellant for a visit. At the conclusion of the visit, Appellant refused to return H.S. to R.S. R.S. had to enlist the Sheriff's Department to get H.S. back from him. R.S. had custody of H.S. at the time. There was no court order imposing regular visitation between Appellant and H.S.
Shortly before the incident when Appellant would not return H.S. to R.S., R.S. was served with papers informing her that Appellant had taken out an order of protection against her. Appellant's petition alleged that both he and H.S. were in danger of being hurt by R.S. The papers informed her of the court date on December 17, 2003. On that date, R.S. and H.S. were both sick, so R.S. did not appear. On the same date, December 17, 2003, two officers arrived at R.S.'s house and took H.S. away. Appellant obtained custody through the trial court's order, and R.S. did not see H.S. again until after June 16, 2004. R.S.'s grandmother and sister also attempted to see H.S. during that time period but were denied access to her. R.S. refrained from attempting to contact Appellant because of the order of protection entered by the court.
H.S. had a regular pediatrician, Dr. Hasnain, when she lived with her mother. H.S. had regular shots when she was a baby. When H.S. was taken from R.S., she did not have any of the injuries that were present when R.S. was taken to the hospital on June 16, 2004, and she was not malnourished. After H.S. was discharged from the hospital, H.S. was placed in foster care for about three months. R.S. then obtained custody of H.S., and she retained custody of the child. After H.S. was returned to her, R.S. was given Mederma to help with H.S.'s scarring. At trial, R.S. testified that H.S.'s nose and ear required reconstruction through cosmetic surgery.
Connie Napier, the bookkeeper for Cooper Ridge Mining Company, testified that Appellant worked for the mining company from February to June of 2004. He worked a regular forty hour week. The employees of the mining company did not work on Sundays.
On April 25, 2004, Aletha Mattie saw Appellant and his girlfriend, Charlotte Claiborne, in their Blazer in the Old Woodson's parking lot. Appellant was in the store, and Ms. Claiborne was in the driver's seat. Ms. Mattie had met Ms. Claiborne but did not know either Ms. Claiborne or Appellant personally. H.S. was in the backseat of the vehicle lying face down. Ms. Claiborne left the vehicle, and H.S. looked up at Ms. Mattie. H.S. tried to speak to her, but she could not. H.S. began to pick things out of the floorboard and put them in her mouth. Ms. Mattie thought she was trying to eat them. When H.S. heard Ms. Claiborne return, the victim put her face back down into the seat. When Ms. Mattie saw H.S. she gasped. Ms. Mattie described the victim's condition in the following manner:
[A] busted nose which was bleeding, you know, pretty badly from her nose down into her mouth onto her shirt. It looked like her eyes were starting to turn black. In the front of her hair it was — looked like hand pulls, you know, it looked like it had been pulled out in circles on the top of her hair.
Ms. Mattie believed the nose injury to have been recent because the child's nose was still bleeding pretty badly. The hair loss was on the right side of H.S.'s head.
When she saw H.S., Ms. Mattie asked Ms. Claiborne what had happened. Ms. Claiborne replied that H.S. had had a bicycle wreck. Ms. Mattie asked if they had taken the child to see a doctor, and Ms. Claiborne replied that they had. Ms. Mattie stated that H.S. was tiny, and she believed her to be around eighteen months old.
Ms. Mattie was not convinced by Ms. Claiborne's explanation and returned to her vehicle to call 911. She gave them a description of the vehicle and told the operator that she was suspicious that a child was being abused. Ms. Mattie also called other family members and urged them to call the authorities to check on the child. Ms. Mattie could recall the exact date because she wrote it down in her calendar.
About a week before June 16, 2004, Teresa Draughn and Judy Bohrer went to pick up Ms. Claiborne around 10:00 or 10:30 p.m. because her car had broken down, and she needed a ride home. H.S. was with Ms. Claiborne when they arrived. Ms. Claiborne had a blanket over H.S. and said that she was asleep when she got into the backseat with H.S. Ms. Bohrer's six-year-old son was with them. When they arrived at Appellant's home, Ms. Bohrer noticed that the house was filthy. Her six-year-old son told Ms. Claiborne that she needed to clean the house because "it stinks." Ms. Bohrer considered the condition of the house "beyond nasty."
After Appellant and R.S. separated, Appellant started living with Ms. Claiborne in the same house across from Appellant's parents. Tina Cantrell lived next door to Appellant and Ms Claiborne. She saw H.S. on two occasions after Appellant gained custody of H.S. Ms. Cantrell first saw H.S. a few days after Appellant obtained custody. Ms. Claiborne brought H.S. to Ms. Cantrell's home because Ms. Claiborne was going to be out. Ms. Cantrell testified that H.S. had a bad chest cold but had no injuries out of the ordinary for a small child. H.S. had a small mark on her neck, but it was not anything unusual for a small child. Ms. Cantrell did not see any parts of H.S.'s body that were covered by clothes. The second time she saw the child was in either May or June of 2004. It was about two weeks before H.S. was taken to the hospital. Ms. Claiborne was having car trouble, so Ms. Cantrell took Appellant to Ms. Claiborne and her car. Appellant asked Ms. Cantrell to take H.S., A.L., Ms. Claiborne's daughter, and K.O., Appellant's daughter, home. A.L. got H.S. out of Ms. Claiborne's car and put H.S. in Ms. Cantrell's car. H.S. was dressed in socks and shoes, pants, and a hooded sweatshirt. The hood of the sweatshirt was tied around H.S.'s head. Ms. Cantrell could only see from the middle of the child's eyes to the tip of her nose. Ms. Cantrell testified that she did not notice any injury to the victim's eyes. Ms. Cantrell asked Ms. Claiborne why she had the hood tied around the child's head. Ms. Claiborne replied that H.S. had an ear infection, and when the ear was exposed to the air, it bothered H.S.
Ms. Cantrell also tried to help R.S.'s grandmother and sister see the child. R.S.'s sister or grandmother would speak with Ms. Claiborne who would tell them a time to come over to the house. When they would arrive, no one would be home. Ms. Cantrell began to...
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