State of Tennessee v. Rodriquez Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 5, 2014

STATE OF TENNESSEE v. RODRIQUEZ JONES

Appeal from the Criminal Court for Shelby County

No. 12-03877 J. Robert Carter, Jr., Judge

No. W2014-00193-CCA-R3-CD - Filed August 13, 2014

Appellant, Rodriquez Jones, was convicted of aggravated sexual battery and sentenced to ten

years in the Tennessee Department of Correction. On appeal, he argues that the evidence

was insufficient to support his conviction and that the assistant district attorney general

committed prosecutorial misconduct during closing arguments. Following our review, we

affirm the judgment of the trial court; however, we must remand this matter to the trial court

to correct the judgment form.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed;

Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and

A LAN E. G LENN, JJ., joined.

Gerald S. Green, Memphis, Tennessee, for the appellant, Rodriquez Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Abby Wallace, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case concerns the aggravated sexual battery of D.W.,1 a child under thirteen years

old, alleged to have occurred between December 1 and December 16, 2011. A Shelby

County grand jury indicted appellant for this offense, and his case proceeded to trial in July

2013.

1

It is the policy of this court to refer to minor victims by their initials to protect their privacy. In

furtherance of this policy, we will also refer to the victim’s family members and other witnesses of minor

age who testified at trial similarly.

I. Facts

At trial, D.W. testified that at the time of the trial, she was twelve years old. In 2011,

she lived with her mother and six of her twelve siblings. The victim said that she had her

own room but that her younger brothers would sometimes sleep in her room. Appellant was

her mother’s “friend,” and he occasionally spent the night at their house. The victim testified

that appellant started coming into her room in early December 2011, when she was eleven

years old. She said that he touched her vagina over her clothes. The victim explained that

she slept under her covers but that appellant would move the covers to touch her. He did not

remove her clothes. She estimated that he came into her room five different times. The

victim said that she told him, “‘No,’” once but that he only stopped when her brothers entered

the room.

The victim recalled one occasion when she and her younger brother were wrestling

with appellant in her mother’s room. She stated, “I got flipped over the bed, and he had

pulled half of his stuff out and tried to put it in my pants, but he couldn’t unbutton my pants.”

She clarified that “his stuff” meant “his private part.” The victim testified that one day,

appellant asked her, “‘[W]hy you [sic] let other boys touch you but I can’t[?]’” She said that

she replied, “‘I don’t let other boys touch me and he can’t.’” The victim said that she did not

tell her mother about what appellant was doing right away because she was afraid “he might

do something.” She changed her mind after talking about the situation with a friend, T.F.,

who encouraged her to inform someone. After she told her mother what had happened, her

siblings “jumped” appellant. Thereafter, the police arrived. She talked to the police about

what happened, and her interview was videotaped. On cross-examination, the victim agreed

that her older siblings were close in age to appellant and that they did not “particularly like”

appellant.

The victim’s friend, T.F., testified that the victim told her what appellant had done to

her when they were discussing why they hated their mothers’ boyfriends. T.F. told her

mother what the victim said.

The victim’s mother (“Mother”) testified that appellant was her “former friend.” She

said that appellant had lived around the corner from her with his “baby mama” but would

occasionally stay the night at her house. Mother recalled that appellant treated the victim

differently than her other children, explaining, “He would always . . . take up for [the victim]

and always bring her some drinks and stuff, candy.” Mother said that she did not know that

anything inappropriate had occurred between the victim and appellant until T.F.’s mother

called her. Mother also spoke with the victim about the situation. After the victim told

Mother’s other children what happened, some of her children fought with appellant. Mother

called the police, but appellant left her house before the police arrived.

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On cross-examination, Mother agreed that she sold candy and drinks from her home.

She further agreed that her older children did not like that she was dating a man who was

close to them in age. She said that she did not care that appellant had been living with his

child’s mother.

One of the victim’s younger brothers (“Brother”) testified that he occasionally slept

in the victim’s room. He recalled seeing appellant “creeping . . . in” the victim’s room “at

night, and he pulled the cover to the side and he pulled [Brother] and [his] other little brother

off the bed, and he pulled down [the victim’s] pants.” Brother said that he was awake when

this happened but that he did not say anything. He further said that he put his hand over his

mouth to keep from saying anything because he believed that if he said something, appellant

would have become scared and would not come back. He gestured to show how appellant

touched the victim’s private part, and the assistant district attorney general described

Brother’s gesture as “a tapping motion.” Brother testified that he saw appellant touching the

victim in this manner three times and that the third time, appellant also touched the victim’s

chest. Brother said that one time occurred on December 18.2 He said that he told one of his

older brothers and his mother about what he had seen.

On cross-examination, Brother said that the victim’s friend had been the one who told

him that something happened on December 18. Brother agreed that his mother was “the

candy lady” for the neighborhood and that people would come to their home to buy candy.

On redirect examination, Brother testified that he did not like appellant because appellant

treated the victim better than he treated him.

Shelby County Sheriff’s Deputy Jessica Hawkins testified that on December 19, 2011,

she responded to a sexual assault call at the victim’s residence. She observed some blood

inside and outside the house and later learned that appellant had been in a fight with one of

the victim’s brothers. Because appellant had left the residence, Deputy Hawkins took

statements from the victim and Mother. She then contacted her supervisor.

Shelby County Sheriff’s Sergeant Natalie Hillman testified that she worked in the

Special Victims Unit. She responded to the victim’s residence on December 19, 2011, and

spoke with the victim and Mother. Sergeant Hillman then scheduled forensic interviews for

the victim, Mother, and Brother. The victim’s and Brother’s interviews occurred at the Child

Advocacy Center, and Sergeant Hillman observed both interviews. Sergeant Hillman

testified that the victim indicated that the last incident with appellant happened four days

2

We recognize that this date is outside the scope of the indictment. It is also inconsistent with the

victim’s testimony regarding the dates that appellant touched her.

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prior to December 19. Sergeant Hillman further testified that she interviewed appellant, who

indicated that he was twenty-four years old at the time of the allegations.

On cross-examination, Sergeant Hillman said that in his interview, appellant told her

that he had wrestled with the victim and that if he had touched her, it was accidental.

Following the close of proof, arguments of counsel, and deliberations, the jury found

appellant guilty of aggravated sexual battery as charged. The trial court sentenced him to

serve ten years in the Tennessee Department of Correction with a release eligibility of 100%.

II. Analysis

A. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to support his conviction for

aggravated sexual battery. Specifically, he argues that the State’s witnesses had “reason and

motive . . . to lie” and that other persons might have committed the offense when they entered

the victim’s home to buy candy from her mother. The State responds that the evidence was

sufficient for any rational jury to find appellant guilty of aggravated sexual battery. We agree

with the State.

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of

witnesses and the weight and value to be given the evidence, as well as all factual disputes

raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court

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presumes that the jury has afforded the State all reasonable inferences from the evidence and

resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our

own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh

or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes

the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt

at the appellate level, the burden of proof shifts from the State to the convicted appellant,

who must demonstrate to this court that the evidence is insufficient to support the jury’s

findings. Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

As relative to appellant’s convictions in this case, “[a]ggravated sexual battery is

unlawful sexual contact with a victim by the defendant . . . [where] [t]he victim is less than

thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4). Tennessee Code Annotated

section 39-13-501(6) further defines “sexual contact” as “the intentional touching of the

victim’s . . . intimate parts, or the intentional touching of the clothing covering the immediate

area of the victim’s . . . intimate parts, if that intentional touching can be reasonably

construed as being for the purpose of sexual arousal or gratification.” “‘Intimate parts’

include[] the primary genital area, groin, inner thigh, buttock or breast of a human being.”

Tenn. Code Ann. § 39-13-501(2).

Viewed in the light most favorable to the State, the evidence at trial showed that

appellant entered the victim’s room on multiple occasions and touched her genital area

through her clothing. The victim testified about appellant’s conduct, and the victim’s

younger brother also testified that he had seen appellant touching the victim in this manner.3

The victim told police that the last time appellant touched her was approximately December

15, 2011, four days prior to when she revealed appellant’s conduct to her mother and the

police. The victim was eleven years old at the time of appellant’s conduct. Appellant’s

argument essentially attacks the credibility of the witnesses in identifying appellant as the

perpetrator. However, the credibility of witnesses is a matter for the trier of fact, not this

court. Bland, 958 S.W.2d at 659. We conclude that the evidence was sufficient for a rational

jury to find beyond a reasonable doubt that appellant committed the offense of aggravated

sexual battery.

B. Closing Arguments

Appellant argues that the assistant district attorney general committed prosecutorial

misconduct during closing arguments. However, appellant did not object at any point during

3

The victim also testified about another occasion when appellant tried to unbutton her pants, but

this conduct does not appear to be the basis for the indictment.

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the closing arguments. Generally, failure to object results in waiver of the issue unless the

statements made are so flagrant that they amount to plain error. State v. Banks, 271 S.W.3d

90, 132 (Tenn. 2008). In this case, appellant has failed to establish the need for plain error

review and has failed to cite any legal authority regarding this issue in his appellate brief. See

Tenn. R. App. P. 36(b); Tenn. R. Crim. App. 10(b). Therefore, appellant has waived this

issue for failure to object contemporaneously and for preparing an inadequate brief. Tenn.

R. Crim. App. 10(b); Banks, 271 S.W.3d at 132.

C. Sentencing

As a matter of plain error, we have observed that the judgment form in this case

indicates appellant’s release eligibility as “Child Rapist 100%” when it should indicate his

release eligibility as “Violent 100%.” See Roger Brent Banks v. Cherry Lindamood, Warden,

No. W2013-00458-CCA-R3-HC, 2014 WL 217662, at *2 (Tenn. Crim. App. Jan. 17, 2014)

(holding that a petitioner’s judgment forms for aggravated sexual battery must be corrected

to indicate release eligibility of “Violent 100%” when petitioner did not meet child predator

prerequisites). Tennessee Code Annotated section 39-13-523(a)(2) limits the child rapist

category to persons convicted of rape of a child as defined in section 39-13-522. Instead,

appellant was convicted of aggravated sexual battery, with no prior convictions for predatory

offenses as listed in section 39-13-523(a)(5). His release eligibility is governed by section

40-35-501(i), which provides that for the enumerated offenses, including aggravated sexual

battery, a defendant must serve 100% of his or her sentence, less sentence credits earned or

retained, not to exceed 15% of the sentence. In contrast, a child rapist’s sentence cannot be

reduced by sentence credits. Tenn. Code Ann. § 39-13-523(b). Therefore, we remand this

matter to the trial court for correction of the judgment form to indicate appellant’s release

eligibility as “Violent 100%.” See Roger Brent Banks, 2014 WL 217662, at *2. All other

aspects of the judgment form shall remain the same.

CONCLUSION

Based on the record, the briefs of the parties, and the applicable legal authority, we

affirm the judgment of the trial court. However, we must remand this case to the trial court

for correction of the judgment form pursuant to this opinion.

_________________________________

ROGER A. PAGE, JUDGE

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