                                                                                                           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.



                                           -2-
              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.
                                           -3-
             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
                                            -5-
              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,
                                            -6-
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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