State of Tennessee v. David Neal Davis

Citation: Not availableDocket: M2009-00691-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; April 19, 2011; Tennessee; State Appellate Court

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David Neal Davis was indicted by the Rutherford County Grand Jury on multiple charges, including four counts of aggravated sexual battery and one count of attempted aggravated sexual battery. During the initial trial, a mistrial was declared after the victim's testimony revealed details of digital penetration. A subsequent indictment included two counts of rape of a child, eight counts of aggravated sexual battery, one count of solicitation of a minor, and one count of attempted aggravated sexual battery. Following a jury trial, Davis was convicted of multiple charges, including rape of a child and seven counts of aggravated sexual battery, and received a twenty-year sentence.

In his appeal, Davis raised several issues: 1) the trial court's failure to dismiss the indictment due to double jeopardy or prosecutorial misconduct; 2) denial of his motion to introduce evidence of the victim's prior sexual conduct; 3) failure to dismiss two counts of aggravated sexual battery based on insufficient proof of venue; and 4) failure to dismiss the rape charge due to lack of evidence for a critical element.

The court conducted a thorough review of the case and found no errors in the trial court's decisions, affirming the judgments. The victim, who was 14 at the time of the trial, testified to multiple incidents of abuse occurring when she was 12 or younger, revealing that she initially disclosed the abuse to her mother after a year of silence, which led to counseling and therapy.

The victim detailed multiple incidents of inappropriate sexual conduct involving the Defendant. The first incident occurred while they were in a car, where Defendant touched her breasts. Another incident took place at home when the victim, in the fourth grade, was playing a game on her laptop. Defendant sat beside her, kissed her neck, closed the curtains, and asked to kiss her vagina, which she refused. When her mother arrived, both jumped up, and she did not disclose the incident due to fear of disbelief.

Subsequent incidents included another car ride where Defendant again touched her breasts, prompting her to position herself defensively to prevent further contact. At home, while creating a personal website, she changed into pajamas and was later approached by Defendant, who rubbed her back, chest, and touched her breasts and private area under her clothes, despite her layered clothing intended for protection. 

In fifth grade, after receiving a letter regarding a travel program, she was in bed when Defendant entered her room, rubbing her back and then her vagina under her clothes, marking it as a significant and violating experience. She refrained from reporting this due to concerns about potential repercussions.

In another incident while she was watching TV and fell asleep, Defendant carried her upstairs, where he again rubbed her back, breasts, and vagina under her clothes, although he did not penetrate her. These accounts illustrate a pattern of sexual misconduct by the Defendant during the victim's childhood.

The victim recounted multiple incidents of sexual abuse by the Defendant, starting with an event the night before TCAP tests when he rubbed her back and private parts under her clothing. She detailed a prior incident from sixth grade where he attempted to penetrate her but left when she moved away. After her trip to Europe, the Defendant laid on top of her while she was making beaded necklaces, rubbing against her through blankets, which she found frightening and embarrassing. The most severe incident, constituting Count 1 of the indictment, occurred at the beginning of her seventh-grade year when the Defendant digitally penetrated her, causing significant pain and a sense of violation. The victim described her efforts to devise a plan to stop the abuse while in Europe and mentioned that she initially refrained from disclosing the abuse due to fear of creating problems or perceived threats from the Defendant. 

Two days after an incident where the Defendant was caught by her mother, the victim disclosed the abuse to her mother, leading to her examination by nurse Carolyn Smeltzer at Our Kids Center on September 12, 2006. Smeltzer, an expert in child sexual abuse medical evaluations, had examined approximately 900 children and noted that while many reported digital penetration, evidence of injury was rare. The victim's examination was normal, indicating no injuries, and a rape kit was not performed due to the timing of the last reported incident, which occurred two weeks prior to the examination.

The victim reported to social worker Lisa Dupree that the Defendant had touched her breasts and genitals, stating the abuse occurred "maybe once a week," with an admission that he may have penetrated her once. During the interview, the victim's mother shared that the victim had previously been evaluated six years earlier, but a MDCS investigation concluded there was insufficient evidence to substantiate the claims of sexual abuse. The mother expressed her ongoing anxiety regarding her daughter's safety, revealing that she frequently checked on her at night.

The victim disclosed to her mother that Defendant had made her uncomfortable by rubbing her back, thighs, and bottom, which led to tears. When asked directly about inappropriate touching, the victim responded ambiguously, indicating that Defendant had touched her breasts and other private areas. Earlier allegations against Defendant had been deemed "unfounded" by authorities, according to Ms. Smeltzer. The mother, feeling conflicted about her daughter’s truthfulness, sought professional help for the victim after the disclosures. The victim demonstrated to her mother the inappropriate touching by mimicking the actions on her body. Throughout these discussions, the victim exhibited signs of distress, indicating the gravity of her experiences.

The victim's mother reported the abuse to authorities, leading to an investigation by Child Protective Services in 2000 when the victim was six years old. Investigator Sundi Blanchard, who had only five months of experience at the Department of Children’s Services, found the victim difficult to interview but believed her and her mother were honest. However, Blanchard concluded that the allegations were “unfounded,” indicating a lack of substantiation. In 2006, Detective Amy Dean conducted a forensic interview of the victim alongside Donna Larant from the Child Advocacy Center and interviewed the Defendant, who remained calm and denied any sexual contact with the victim. The Defendant claimed he had hired an attorney after the 2000 allegations, cooperated with authorities, and consistently denied any sexual misconduct, including digital penetration. During the trial, the victim testified that the Defendant had touched her inappropriately, prompting the Defendant to request a jury-out hearing due to concerns about presenting evidence of an unindicted crime. The trial court acknowledged issues with the prosecution's presentation, which risked misleading the jury regarding charges not levied against the Defendant. The State suggested that clarifying jury instructions could alleviate confusion and indicated a willingness to reindict for more serious charges if necessary after a potential mistrial. The Defendant aimed to dismiss the second indictment on grounds of double jeopardy or prosecutorial misconduct, stemming from the original indictment on various charges of aggravated sexual battery.

The State indicated a possibility of re-indicting the Defendant for incidents involving the victim when she was six years old, asserting that the defense could cross-examine the victim regarding her prior lack of testimony on penetration. Defense counsel contended that such questioning would exacerbate the situation, while the State argued that without the possibility of conviction, the situation could not worsen. The trial court determined that the Defendant was "definitely prejudiced" by the victim's testimony and granted a mistrial. Subsequently, the Defendant faced new charges, including two counts of rape of a child and multiple counts of aggravated sexual battery. The Defendant moved to dismiss the indictment based on double jeopardy and prosecutorial misconduct, but the trial court denied this motion, stating there was no evidence to suggest that jurors would perceive penetration as more serious than illegal touching. 

The court reaffirmed that the double jeopardy clause protects against multiple prosecutions or punishments for the same offense but noted exceptions, such as when a defendant requests a mistrial or if there is "manifest necessity" for it. The trial judge has discretion in determining whether a retrial is permissible, weighing the public's interest in a fair trial against the defendant's constitutional rights. The appellate review finds the trial court's factual determinations to be conclusive unless contradicted by the evidence, and it concluded there was no indication that the Defendant was pressured into requesting a mistrial.

The State opposed a mistrial and favored proceeding with the initial trial on lesser charges of aggravated sexual battery and attempted aggravated sexual battery. It acknowledged waiving the higher charge of rape of a child due to insufficient evidence of penetration at the time of indictment. The Defendant sought a mistrial, but there was no evidence that the State instigated this request, thus denying the Defendant relief on this matter. The Defendant also claimed that the State acted vindictively by charging additional offenses, including rape of a child, in a superseding indictment. This claim was based on statements by the Assistant District Attorney indicating the possibility of pursuing more serious charges later. 

The Tennessee Supreme Court establishes a rebuttable presumption of prosecutorial vindictiveness when circumstances suggest a likelihood of retaliatory action by the prosecution, as seen in the State v. Phipps case. The criteria for evaluating such claims include the potential duplication of prosecutorial resources, whether the prosecution is redoing a previously resolved issue, personal stakes in self-vindication, institutional biases against retrial, and the timing of the prosecutorial decision to enhance the charges. The State must demonstrate a legitimate purpose for its actions if such a presumption arises. The State referenced State v. Frank Michael Vukelich, where after a mistrial due to a hung jury, the State reindicted the defendant with additional charges based on new evidence presented during the first trial.

The court determined that the prosecutor had no motivation for self-vindication, and institutional biases did not prevent a retrial, as the defendant was to be retried regardless of new charges. The initial trial resulted in a mistrial, rendering it incomplete, which negated the presumption of prosecutorial vindictiveness despite the addition of new money laundering charges. The defendant argued that the State benefitted from the mistrial by subsequently indicting for additional and more severe charges, specifically rape of a child, alleging that the State intentionally introduced improper evidence regarding penetration. However, the court found that the State had been transparent about its initial decision not to charge rape due to insufficient evidence of penetration, citing the victim's limited testimony. The State aimed to avoid subjecting the victim to another trial, especially given the significant difference in potential sentences. The victim's testimony during the first trial, although minimal (only 28 pages), provided a basis for the new charges. The court concluded that the first trial's incompleteness meant that prosecutorial resources were not wasted, and the prosecutor did not have a personal stake in the outcome. Consequently, the presumption of vindictiveness was overcome, and the defendant was not entitled to relief on this issue. Additionally, the court upheld the trial court's decision to exclude testimony about the victim's masturbation, ruling it irrelevant to the charges.

During a jury-out hearing, the defense sought to introduce evidence regarding the victim's past behavior of masturbation, as described by the victim’s mother, to challenge the prosecution's case under Tennessee Rule of Evidence 412. The mother recounted that after her separation from the victim's father, she observed her daughter “rubbing” herself on a blanket, which she reported to the child's pediatrician, who deemed it normal behavior. She noted never witnessing the victim engage in such behavior in the presence of the defendant, nor did she observe any inappropriate interactions between them. The defense argued that the evidence demonstrated the defendant's love and concern for the victim, particularly referencing an incident where the victim allegedly sat on the defendant's lap and rubbed herself. The trial court ruled the evidence irrelevant, stating it could mislead the jury, and rejected the defense's request to introduce it. The court emphasized that under Rule 412, evidence of a victim's prior sexual acts is generally inadmissible unless it meets specific criteria, which the defense failed to satisfy. The ruling aligns with precedent, indicating a trial court's discretion in such matters will not be overturned without evidence of abuse.

To introduce evidence related to sexual matters, Tennessee Rule of Evidence 412 allows for certain exceptions: (i) to rebut or explain scientific or medical evidence, (ii) to identify the source of semen, injury, disease, or knowledge of sexual matters, or (iii) to demonstrate consent through a pattern of sexual behavior that closely mirrors the accused's account. Even if these conditions are met, the trial court must determine if the evidence's probative value outweighs its potential unfair prejudice to the victim. The discretion of the trial court governs the admissibility of such evidence. 

In this case, the defendant claimed the evidence was relevant to challenge the victim's credibility and to show his protective behavior, not to establish consent. However, he acknowledged that the evidence did not meet any of the Rule 412 exceptions and argued that his Sixth Amendment right to confront witnesses was violated. This claim was rejected, as the court clarified that the defendant was not barred from cross-examining the victim but rather from introducing evidence deemed irrelevant. The court concluded that the evidence concerning the victim's masturbation did not qualify under Rule 412, and the trial court did not err in excluding it.

Regarding venue, the defendant contended that the State failed to prove that the offenses in Counts 5 and 7 occurred in Rutherford County. While venue is a jurisdictional fact that needs to be established by a preponderance of the evidence, it is not an element requiring proof beyond a reasonable doubt. The victim testified that both incidents occurred while she was in a vehicle driven by the defendant. For Count 5, the victim could not specify the location, but for Count 7, she stated it occurred while they were stopped at a tobacco store en route to cheerleading practice. The defendant's testimony indicated he occasionally drove the victim to various activities, but he specifically recalled attending only one cheerleading event in Nashville.

Venue was established through the victim's testimony, indicating she lived in Rutherford County and the incidents occurred there. The court found this testimony sufficient to prove venue by a preponderance of the evidence, despite the defendant's reference to a separate event in Davidson County. The defendant's appeal regarding the sufficiency of evidence for his conviction of child rape (Count 1) was addressed, focusing on his claim of insufficient evidence of penetration. The court explained that the standard for reviewing sufficiency of evidence requires viewing it in the light most favorable to the prosecution, allowing for the presumption that a rational jury could find the essential elements of the crime beyond a reasonable doubt. The victim's testimony, which detailed the incidents in chronological order, was deemed credible and sufficient to support the conviction, despite the defendant's claims of inconsistencies and lack of corroborating medical evidence. The victim clearly distinguished between the incidents related to Counts 1 and 2, with her testimony indicating penetration occurred. The court reaffirmed that a child's testimony alone can uphold a conviction for child rape. Consequently, the judgments of the trial court were affirmed.