State of Tennessee v. Mario Myers

04/14/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 2, 2021 Session

STATE OF TENNESSEE v. MARIO MYERS

Appeal from the Criminal Court for Shelby County

No. 16-03621 James M. Lammey, Judge

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No. W2020-00337-CCA-R3-CD

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A Shelby County jury convicted the defendant, Mario Myers, of aggravated sexual battery

for which he received a twelve-year sentence. On appeal, the defendant asserts the trial

court erred in denying his right to self-representation and challenges the sufficiency of the

evidence supporting his conviction. After a thorough review of the record, we affirm the

judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS and

CAMILLE R. MCMULLEN, JJ., joined.

Joshua J. Roberts (on appeal), Germantown, Tennessee and Jason Matthews (at trial),

Memphis, Tennessee for the appellant, Mario Myers.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Lessie Rainey and

Cavett Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural History

A Shelby County grand jury indicted the defendant for one count of aggravated

sexual battery committed against his seven-year-old victim, J.S,1 who was born on January

3, 2007. Tenn. Code Ann. § 39-13-504(a)(4). The crime occurred on August 11, 2014, at

1

It is the policy of this Court to refer to minor victims and their family members by initials only.

Therefore, the victim will be referred to as “the victim” or “J.S.” and his mother and aunt will be referred

to as “T.B.” and “R.B.,” respectively.

the home of R.B., the victim’s aunt. At the time, R.B. was in a relationship with the

defendant and had agreed with the victim’s mother, T.B., to drive the victim to school each

morning. That day, however, R.B. left the victim alone at her home with the defendant as

she took her own son to school. While R.B. was gone, the defendant approached the victim,

who was in his cousin’s bedroom, told the victim to bend down, and placed his penis on

the victim’s lips. After approximately five seconds, the victim pushed the defendant away

and ran out of the room. When R.B. returned home, the victim told her what the defendant

did and then went to school.

Around noon, T.B. received a telephone call from R.B. who stated that the victim

disclosed that “something happened with [the defendant] doing something to [the victim].”

After the telephone call, T.B. went to the victim’s school and informed the school counselor

of the allegations. The school counselor spoke to the victim and then contacted the police.

Officer Bryant Brooks of the Memphis Police Department responded to the school

and created an initial report which detailed T.B. and the victim’s narratives of the

allegations. While the victim was talking to the police, T.B. described the victim as “kind

of anxious” and “eager to tell something had happened.” Afterwards, T.B. planned to take

the victim to the hospital but went home instead as she was overwhelmed. On August, 26,

2014, Letitia Cole of the Memphis Child Advocacy Center performed a forensic interview

of the victim, which was played for the jury during trial. Ms. Cole also photographed the

victim, and the photograph was entered into evidence.

Retired Lieutenant Marlon Wright investigated the victim’s case as part of a Child

Protective Investigation Team (“CPIT”). In doing so, he observed the victim’s forensic

interview and developed a person of interest named “Mario.” However, it took several

months for police to identify the defendant as a suspect because T.B. did not know the

defendant’s last name and R.B. would not provide it to her. Because he knew the defendant

was dating R.B., Lieutenant Wright unsuccessfully attempted to contact her numerous

times. Several months later, T.B. learned the defendant’s last name and informed

Lieutenant Wright. After failing to contact the defendant, Lieutenant Wright met with the

CPIT, and the team issued a warrant for the defendant’s arrest. Finally, based upon the

information provided during the victim’s forensic interview, Lieutenant Wright explained

it was not necessary for the victim to participate in a physical forensic examination, or for

law enforcement to investigate or photograph a specific crime scene.

When the victim testified at trial, he was twelve years old. He identified the

defendant in court and provided additional details of the crime. The victim remembered

being alone with the defendant at R.B.’s home one morning while she took the victim’s

cousin to school. The victim was in his cousin’s bedroom when the defendant entered and

told him to “bend down.” The victim stated he was on his knees, and the defendant “put

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his weener (sic) in my mouth.” More specifically, the defendant put his penis on the

victim’s lips for approximately five seconds. The victim then “pushed [the defendant] back

and ran to the living room.” The victim was “a little scared” after the defendant made a

statement regarding what might happen if the victim told someone about the defendant’s

actions, but the victim could not recall specifically what the defendant said. When R.B.

returned home, the victim told her what happened, and R.B. “got onto” the defendant

“because [the defendant] had put his penis in [the victim’s] mouth.”

The victim went to school that day but did not recall speaking with the school

counselor or police though he did remember R.B. crying on the telephone when his mother

picked him up from school. The victim acknowledged that he participated in and told the

truth during a forensic interview at the Memphis Child Advocacy Center. The victim

testified he watched the video of the interview but did not remember the interview

otherwise. While acknowledging he had claimed during his interview that there was a

second incident with the defendant, the victim denied a second incident at trial. Finally,

the victim testified that he tries not to think about what the defendant did, but when he does

think about it, he is not scared like he was at the time it happened.

The State rested its case, and the defendant moved for a judgment of acquittal. The

trial court then attempted to conduct a Momon hearing. The defendant, however, was

uncooperative, and the trial court ultimately held him in contempt. Additionally, at the

outset and throughout the trial, the defendant made several oral requests to represent

himself, all of which were denied by the trial court. Ultimately, the defendant did not

present any proof, and the jury convicted him of aggravated sexual battery. The trial court

imposed a twelve-year sentence for the crime and denied the defendant’s motion for a new

trial.2 This timely appeal followed.

Analysis

I. Sufficiency of the Evidence

The defendant argues the evidence is insufficient to support his conviction for

aggravated sexual battery because there is no physical evidence from or witness to the

crime. As a result, the defendant asserts “the [j]ury was forced to rely primarily on the

testimony of the minor victim” which was “inconsistent” and “largely manipulated and

induced by the video of his previous forensic interview.” The State argues the evidence

was sufficient to support the defendant’s conviction for aggravated sexual battery, and we

agree.

2

The trial court ran the defendant’s sentence in this case consecutively to the sentence imposed in

case number 16-00893.

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When the sufficiency of the evidence is challenged, the relevant question for the

reviewing court 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); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions

involving the credibility of witnesses, the weight and value to be given the evidence, and

all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of

the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme

court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523

(1963)). “A jury conviction removes the presumption of innocence with which a defendant

is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant

has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);

Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).

Moreover, the jury determines the weight to be given to circumstantial evidence and the

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inferences to be drawn from this evidence and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence are questions primarily for the jury.

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

This Court, when considering the sufficiency of the evidence, shall not reweigh the

evidence or substitute its inferences for those drawn by the trier of fact. Id.

The defendant was convicted of aggravated sexual battery. “Aggravated sexual

battery is unlawful sexual contact with a victim by the defendant” where “the victim is less

than thirteen years of age.” Tenn. Code Ann. § 39-13-504(a)(4). “‘Sexual contact’

includes 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, 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.” Tenn. Code Ann. § 39-13-501(6). “‘Intimate parts’ includes . . . the primary

genital area, groin, inner thigh, buttock or breast of a human being.” Tenn. Code Ann. §

39-13-501(2).

Here, the proof established that the victim was seven years old on August 11, 2014.

At the time, the defendant was dating the victim’s aunt, R.B., who drove the victim to

school each day. That morning, however, R.B. left the victim alone with the defendant at

her home. The defendant approached the victim, told the victim to bend down, and then

placed his penis on the victim’s lips for approximately five seconds. The victim pushed

the defendant away and ran from the room. The victim disclosed the defendant’s actions

to R.B. when she returned home, and R.B. “got onto” the defendant. The victim went to

school after which R.B. disclosed the defendant’s actions to the victim’s mother, T.B., who

went to the victim’s school and informed the school counselor of the defendant’s actions.

The counselor spoke to the victim and called the police. The victim later participated in a

forensic interview where he again disclosed the defendant’s abuse. Officer Brooks,

Lieutenant Wright, and the CPIT investigated the victim’s allegations against the defendant

which ultimately led to the defendant’s arrest.

The defendant argues the evidence is insufficient to sustain his conviction because

the victim’s testimony was inconsistent and there was no physical evidence to establish the

crime. However, “there is no requirement that the victim’s testimony be corroborated,”

and, we disagree with the defendant’s contention as the record indicates the victim

provided a consistent description of the defendant’s actions, placing his penis on the

victim’s mouth for five seconds, throughout the investigation which he also described at

trial. State v. Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000); see also State v. Joseph

Lester Haven, No. W2018-01204-CCA-R3-CD, 2020 WL 3410242, at *9 (Tenn. Crim.

App. June 19, 2020) (holding even absent physical evidence of a crime, a victim’s

testimony need not be corroborated to sustain convictions for rape of a child and aggravated

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sexual battery). In addition, Lieutenant Wright explained it was not necessary to conduct

a physical examination of the victim or of the crime scene based upon the allegations.

Accordingly, sufficient evidence exists to show the defendant committed aggravated

sexual battery against the victim, and the defendant is not entitled to relief.

II. Self-representation

The defendant argues “the [t]rial [c]ourt acted erroneously when [it] denied the

defendant’s request for self-representation, despite the fact that his request was

unequivocal, timely, and was made knowingly and intelligently.” The defendant asserts

the alleged error is a structural, constitutional error that requires automatic reversal. The

State argues the defendant has waived this claim for failing to raise it in his motion for a

new trial and, even though not requested, asserts the defendant is not entitled to plain error

review of this issue. Upon our review, we conclude this issue is waived, and the defendant

is not entitled to plain error review.

Initially, we note, the record makes clear that the defendant made several requests

to represent himself throughout the trial, and the trial court denied each request. The record

also makes clear that the defendant failed to specifically allege as error in his motion for a

new trial the trial court’s denial of his right to self-representation. Instead, the defendant

alleged that he “was prejudiced in that he would not confer with counsel and should have

been appointed new counsel.” We do not find this allegation sufficient to preserve the

issue regarding his right to self-representation on appeal as it is well-settled that:

. . . [I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or

other action committed or occurring during the trial of the case, or other

ground upon which a new trial is sought, 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). Because the defendant failed to specifically raise the alleged error

of the trial court regarding its denial of his right to represent himself in his motion for a

new trial, the issue is waived, and the defendant is not entitled to relief. Id.

The State further argues the defendant is not entitled to plain error relief despite

failing to request the same, and we again agree. Under the plain error doctrine, a defendant

may obtain relief only if all of the following criteria are satisfied: (1) the record clearly

establishes what occurred in the trial court, (2) a clear and unequivocal rule of law was

breached, (3) a substantial right of the accused was adversely affected, (4) the issue was

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not waived for tactical reasons, and (5) consideration of the error is necessary to do

substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016); State v. Hester,

324 S.W.3d 1, 56 (Tenn. 2010).

Here, the record does not clearly establish what occurred in the trial court prior to

the court’s denial of the defendant’s request to proceed pro se. Not only is it unclear if the

defendant requested to represent himself prior to trial, but also it is unclear if the trial court

conducted a hearing prior to its ruling. As is pertinent to this appeal, the record includes

the following exchange which occurred at the outset of trial:

The Court: Mr. Myers, you have this one-count indictment for aggravated

sexual battery. It’s been pending for a while now. You went to trial on the

other case. Who represented you on that other case?

[Defense Counsel]: Dewun Settle.

The Defendant: For the record, I have always represented myself from the

beginning, sir.

The Court: Yes, sir.

The Defendant: Any other representation by any attorney from the State was

by unconscionable dealings and by material alteration –

The Court: Right.

The Defendant: -- of the instruments for the record.

The Court: And I found in the past and I’ll find again that you’re not

qualified to represent yourself. You aren’t even talking about the same laws

that apply to the rest of us, Mr. Myers. And I would I beseech you to consider

helping your attorney because I think the last time you didn’t help your

attorney, it didn’t turn out too well.

As outlined above, while the trial court clearly denied the defendant’s request to

represent himself, the record fails to establish what occurred in the trial court prior to the

court’s ruling. Furthermore, during oral argument, this Court asked the parties to explain

the ruling of the trial court, but neither party was able to provide information regarding the

context of the ruling. Therefore, while it is clear the trial court unequivocally denied the

defendant’s request to represent himself, the record fails to establish whether the defendant

requested to represent himself prior to trial or whether the trial court conducted a hearing

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regarding the request prior to trial. Accordingly, the record is unclear, and, even though

not requested, plain error review is not warranted. Martin, 505 S.W.3d at 504; Hester, 324

S.W.3d at 56. This issue is without merit.

Conclusion

Based upon the foregoing authorities and reasoning, the judgment of the trial court

is affirmed.

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J. ROSS DYER, JUDGE

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