State of Tennessee v. David Black

09/21/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 1, 2017

STATE OF TENNESSEE v. DAVID BLACK

Appeal from the Criminal Court for Shelby County

No. 15-00541 Paula Skahan, Judge

No. W2016-02478-CCA-R3-CD

The defendant, David Black, appeals his Shelby County Criminal Court jury convictions

of attempted rape of a child and aggravated sexual battery, claiming that the trial court

erred by improperly admitting certain evidence and that the evidence was insufficient to

support his convictions. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Harry E. Sayle III (on appeal) and Nick Cloud and Paul Pera (at trial), Assistant District

Public Defenders, for the appellant, David Black.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

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

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In February 2015, the Shelby County Grand Jury charged the defendant

with one count each of attempted rape of a child and aggravated sexual battery. The trial

court conducted a jury trial in April 2016.

The State’s proof at trial showed that the victim, D.S.,1 was 15 years old at

the time of trial. In 2008, when the victim was eight years old, she and her mother began

living with her aunt, A.Y.2, and A.Y.’s husband, the defendant. Shortly thereafter, the

1

It is the policy of this court to refer to minors by initials.

2

To protect the anonymity of the minor victim, we will refer to her relatives by initials as well.

victim’s mother moved out of the residence, and the victim continued to reside with A.Y.

and the defendant. In 2010, A.Y. and the defendant divorced, but the victim would often

accompany her younger brother and her male cousins, C.Y. and D.B., to visit the

defendant at his residence on certain weekends.

C.Y., who was also 15 years old at the time of trial, testified that the

defendant treated the victim differently than the other children and that the defendant

would spend more time with her:

[The defendant will] let [the victim] do things like drive his

car and he’ll let me drive for like a few minutes and then he’ll

let her drive for the rest of the time that we’re there until we

go home.

And then as far as food-wise, as if we’ll have cookies

and ice cream, I wouldn’t have the cookies but he’ll give her

more of the food than he’ll give me and [D.B.] because he’ll

say we either had enough or she didn’t – we didn’t have

enough for her, so he’ll give her the rest of the food.

C.Y. also recalled that the defendant would separate the victim from the other children on

occasion. According to C.Y., the defendant would tell the boys to go outside to play, and

he would make the victim stay inside “to clean up or help him with something or cook.”

When C.Y. and the other boys would attempt to reenter the residence while the victim

was alone with the defendant, the defendant would permit them to get a drink of water

but then make them return outside without the victim. The victim confirmed that the

defendant would sometimes separate her from the boys.

In April 2013, the 12-year-old victim and her cousins, C.Y. and D.B., spent

the weekend with the defendant at his home while the victim’s mother and A.Y. traveled

to Chicago for a funeral. On the Saturday night of the victim’s stay, the defendant

attempted to convince the victim “to have sex with him” while C.Y. and D.B. were both

sleeping nearby. When the victim refused, the defendant told her that “it’s not going to

hurt” and made multiple attempts to remove the victim’s pajama pants and underwear.

Because the victim continued to resist, the defendant grabbed the victim around her waist

and turned her body over on the bed, with her hands on the bed and her feet on the floor.

The defendant was eventually able to pull down the victim’s pants and underwear. The

victim saw the defendant applying Vaseline to his erect penis, which was protruding

through the opening in his boxer shorts.

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The victim touched the defendant’s penis “when [she] was trying to push

him off [of her] when he kept coming forward.” The victim noticed that the defendant’s

penis was “standing up” and that “it was hard and slimy from the Vaseline.” As the

victim continued in her attempts to fend him off, the defendant asked, “[Y]ou won’t even

do this for me after I let you drive my car?” The victim confirmed that the defendant had

permitted her to drive his vehicle even though she was only 12 years of age at the time.

The victim testified that the defendant attempted to penetrate her with his penis but that

he was unsuccessful because she “kept telling him to stop and pushing him off and then

once [she] got [her] clothes up” she escaped to the bathroom. The victim stated that both

C.Y. and D.B. slept through the incident and that she purposely remained quiet because

she “didn’t want them to wake up and see that.” When the victim reentered the

defendant’s room, the defendant was angry, but he made no further attempts to assault the

victim.

On cross-examination, the victim acknowledged that she had later told her

interviewer at the Child Advocacy Center that the defendant’s sexual assault had

occurred on April 4, 2013, and that it was on “a Wednesday or a Thursday.”

The victim initially told no one what had transpired. On March 26, 2014,

Memphis Police Department (“MPD”) Officer Clayton Turner reported to a local middle

school to give a presentation on “gangs, bullying and inapporpriate touching.” Shortly

after he began his presentation, the victim and a teacher approached him. Officer Turner

noticed that the victim appeared upset, and he directed her to speak with fellow MPD

Officer Stacey Hughes. After Officer Hughes took the victim outside, the victim

informed Officer Hughes that “her aunt[’s] husband” had touched her inappropriately.

As Officer Hughes pressed the victim for more details, the victim began “crying just

uncontrollably” and “shaking really, really bad.” Officer Hughes continued as follows:

And [the victim] said that her aunt’s husband, [the defendant],

had touched her. And I say, okay, well, . . . tell me what you

mean by touching you. And she starts crying again. She’s

still shaking at this point. Then she said that he had taken her

clothes off and touched her all over her body. . . . And I say

okay. So I told her to continue on. And she still, she’s still

crying, shaking. Through the whole conversation she’s

continued to cry and shake. And she said about a year prior

to that he had, at his rooming house, that he had tried to stick

his penis in her behind but that she was able to push him off.

Officer Hughes then contacted her MPD lieutenant who in turn contacted the sex crimes

unit.

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A.Y. testified that the funeral she had attended in Chicago which had

occasioned her leaving the victim, C.Y., and D.B. with the defendant, had occurred on

the weekend of April 20, 2013. A.Y. recalled leaving the children with the defendant on

Thursday night, April 18, and picking them up on Sunday, April 21.

With this evidence, the State rested. Following a Momon colloquy and the

trial court’s denial of the defendant’s motion for judgments of acquittal, the defendant

elected not to testify but did choose to present proof.

Lynn Staggs, chief financial officer of D&W Plating Company, testified

that the defendant had clocked in for work at 4:43 a.m. on April 4, 2013, and clocked out

at 3:35 p.m. On April 5, the defendant clocked in at 5:02 a.m. and clocked out at 3:33

p.m. Ms. Staggs testified that the defendant did not work on Saturday, April 6 or Sunday,

April 7.

Barry Brown testified that the defendant had rented a room from him in

2013, and through Mr. Brown’s testimony, the defense introduced into evidence

photographs of the furnishings in the defendant’s room as it appeared in 2013.

Based on this evidence, the jury convicted the defendant as charged of one

count of attempted rape of a child and one count of aggravated sexual battery. Following

a sentencing hearing, the trial court merged the attempted rape of a child conviction into

the aggravated sexual battery conviction and sentenced the defendant as a standard

offender to a term of 12 years’ incarceration to be served at 100 percent by operation of

law.

Following the denial of his timely motion for new trial, the defendant filed

a timely notice of appeal. In this appeal, the defendant contends that the trial court erred

by improperly admitting evidence of his preferential treatment of the victim and that the

evidence is insufficient to support his convictions. We will address each issue in turn.

I. Admission of C.Y.’s Testimony

The defendant first contends that the trial court erred by admitting the

testimony of C.Y. regarding the defendant’s preferential treatment of the victim because

it portrayed the defendant as possessing “a character flawed with the propensity to

commit rape of a child” and was therefore “highly prejudicial.” The State responds that

the defendant has waived this issue for failure to comply with the requirements of

Tennessee Rule of Appellate Procedure 3(e) and that, in any event, C.Y.’s testimony did

not constitute improper character evidence.

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Prior to trial, the trial court conducted a hearing on the admissibility of

C.Y.’s testimony of the defendant’s preferential treatment of the victim. At the hearing,

C.Y. testified consistently as he did at the subsequent trial. The trial court ruled that

C.Y.’s testimony was admissible because it did not qualify as a prior bad act as

contemplated by Tennessee Rule of Evidence 404(b).

With respect to this issue in his motion for new trial, the defendant alleged

only that the trial court “erred in allowing [C.Y.] to testify about bad acts that occurred

prior to the allegations in question.” In cases tried by a jury in Tennessee, “no issue

presented for review shall be predicated upon error in the admission or exclusion of

evidence, . . . unless the same was specifically stated in a motion for a new trial;

otherwise such issues will be treated as waived.” Tenn. R. App. P. 3(e) (emphasis

added). Issues presented in a motion for new trial must be “specified with reasonable

certainty so as to enable appellate courts to ascertain whether the issue was first presented

for correction in the trial court.” Waters v. Coker, 229 S.W.3d 682, 689 (Tenn. 2007)

(citing State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987)). Our supreme

court has expounded as follows:

Before an issue can be properly preserved in a motion for new

trial under Rule 3(e), a well-pleaded motion should (1) allege

a sufficient factual basis for the error by setting forth the

specific circumstances giving rise to the alleged error; and (2)

allege a sufficient legal basis for the error by identifying the

trial court’s claimed legal basis for its actions and some

articulation of why the court erred in taking such actions.

Fahey v. Eldridge, 46 S.W.3d 138, 146 (Tenn. 2001).

Because the defendant failed to set forth with any specificity either the

factual or legal basis of the court’s alleged error in admitting the testimony of C.Y., he

has waived our consideration of this issue. See Tenn. R. App. P. 3(e). Furthermore, we

see no basis for noticing the alleged error despite waiver. See Tenn. R. App. P. 36(b).

Even assuming that the admission of the testimony was improper, in light of the

significant evidence of the defendant’s guilt, as will be addressed herein, it would be

harmless. Thus, nothing suggests that “‘a substantial right of the accused [was] adversely

affected’” or that “‘consideration of the error is “necessary to do substantial justice.”’”

See State v. Smith, 24 S.W.3d 274, 282, 283 (Tenn. 2000) (quoting State v. Adkisson, 899

S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)).

II. Sufficiency

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The defendant also contends that the evidence is insufficient to support his

convictions of attempted rape of a child and aggravated sexual battery. We disagree.

We review the defendant’s claim of insufficient evidence mindful that our

standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This

standard applies to findings of guilt based upon direct evidence, circumstantial evidence,

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

Questions concerning the credibility of the witnesses, the weight and value of the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must

afford the State the strongest legitimate view of the evidence contained in the record as

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

Id.

As charged in this case, “[r]ape of a child is the unlawful sexual penetration

of a victim by the defendant or the defendant by a victim” if the victim is between the

ages of three and 13. T.C.A. § 39-13-522(a). “Sexual penetration” is defined as “sexual

intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,

of any part of a person’s body or of any object into the genital or anal openings of the

victim’s, the defendant’s, or any other person’s body, but emission of semen is not

required.” Id. § 39-13-501(7). Criminal attempt occurs when a person “acting with the

kind of culpability otherwise required for the offense . . . [a]cts with intent to complete a

course of action or cause a result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes them to be, and the conduct

constitutes a substantial step toward the commission of the offense.” T.C.A. § 39-12-

101(a)(3). To qualify as a “substantial step,” the person’s “entire course of action” must

be “corroborative of the intent to commit the offense.” Id. § 39-12-101(b).

Aggravated sexual battery “is unlawful sexual contact with a victim by the

defendant or the defendant by a victim” when “[t]he victim is less than thirteen (13) years

of age.” T.C.A. § 39-13-504(a)(4). “Sexual contact” is defined as including “the

intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts,

or the intentional touching of the clothing covering the immediate area of the victim’s,

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the defendant’s, or any other person’s intimate parts, if that intentional touching can be

reasonably construed as being for the purpose of sexual arousal or gratification.” Id. §

39-13-501(6). “‘Intimate parts’ includes the primary genital area, groin, inner thigh,

buttock or breast of a human being.” Id. § 39-13-501(2).

In the instant case, the proof at trial established that, during a weekend in

April 2013 when the 12-year-old victim was staying at the defendant’s residence, the

victim touched the defendant’s erect penis while she was attempting to push him away

from her, which was sufficient to establish the defendant’s conviction of aggravated

sexual battery. With respect to the conviction of attempted child rape, the victim testified

that the defendant urged her to engage in sexual intercourse with him and that, when she

refused, he repeatedly attempted to remove her pajama pants and underwear. He

eventually flipped the victim over onto her stomach on the bed, removed her pants and

underwear, placed Vaseline on his erect penis, and repeatedly attempted to penetrate the

victim with his penis from behind. This testimony cogently established the defendant’s

attempted sexual penetration of the victim. Although the defendant questioned the

victim’s conflicting testimony about the exact date of the assault and the sleeping

positions of C.Y. and D.B. during the assault, such matters of witness credibility and

evidentiary weight are within the exclusive province of the trier of fact, and this court

will not reweigh such evidence. See Dorantes, 331 S.W.3d at 379.

Viewing this evidence in the light most favorable to the prosecution, we

find that the evidence adduced at trial more than sufficiently established the defendant’s

convictions of attempted rape of a child and aggravated sexual battery.

Conclusion

Based upon the foregoing analysis, the judgments of the trial court are

affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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