State v. Valle

STATE OF TENNESSEE v. VICTOR VALLE

No. W2019-01767-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

November 10, 2020 Session

April 8, 2021

Appeal from the Criminal Court for Shelby County

No. 17-03946

James M. Lammey, Judge

A jury convicted the Defendant, Victor Valle, of rape of a child, and he received a sentence of twenty-two years of incarceration. On appeal, the Defendant challenges the sufficiency of the evidence and the trial court's ruling admitting the victim's testimony that the Defendant had abused her outside of the time period specified in the indictment. We conclude that the evidence is sufficient and that the trial court did not abuse its discretion in admitting evidence of prior bad acts, and we affirm the judgment.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L. EASTER and J. ROSS DYER, JJ., joined.

Joseph McClusky (on appeal); and Edwin Lenow and John Dolan (at trial), Memphis Tennessee, for the appellant, Victor Valle.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, 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

The Defendant was indicted in 2017 for rape of a child committed against the victim, his niece, between August 24, 2002, and October 12, 2005. The first date listed in the indictment was dictated by the statute of limitations for the offense and reflects a date fifteen years prior to the return of the indictment. Although the State could not charge the Defendant with offenses committed prior to this date, the allegations included abuse which began in 1998. The closing date charged in the indictment was dictated by the victim's thirteenth birthday.

Prior to trial, the Defendant moved to dismiss the charge based on the statute of limitations and based on a violation of his right to a speedy trial. The State filed a notice that it intended to introduce evidence of prior bad acts committed by the Defendant under Tennessee Rule of Evidence 404(b). The State asserted that the Defendant sexually abused the victim beginning in 1998 and that the victim should be able to testify that the abuse was ongoing from that time. The State asserted that the victim's response to the abuse, and in particular, her delay in reporting the abuse, could not be understood without a reference to the period of time prior to that charged in the indictment, and the State argued that the testimony would be necessary for contextual background and relevant to the victim's credibility. The trial court held a hearing at which the victim testified, and the court agreed that the evidence was necessary for contextual background, to complete the story of the crime, to show a settled purpose to harm the victim, and because it reflected on the victim's credibility. The trial court determined that prior bad acts had been proven by clear and convincing evidence. The court noted that the victim would only be permitted testify to the particulars of abuse that occurred during the indictment timeframe and concluded that the probative value of the evidence substantially outweighed the danger of unfair prejudice. In further discussion, the court inquired whether the testimony of events prior to 2002 would be general, and the prosecutor assured the court that the testimony would keep to "generalities."

During opening statements, the defense asserted that the Defendant had lived with the victim's family but had left Memphis in 2001. The defense stated that when he returned in 2003, he no longer resided in the home. The defense noted that the proof would show that the Defendant "was not in the house — except for family gatherings" during the time period covered by the indictment. The defense also argued that the victim had fabricated the abuse and that she did not make any allegations of abuse until "almost twenty years" after the abuse began.

The victim, who was twenty-six years old at the time of trial, testified that the Defendant, her mother's brother, came to live with her family in Memphis around 1998, when she was about six years old. The victim's family, which included her parents, her younger sister, and the Defendant, lived in a three-bedroom, one-bathroom home. The victim's father was frequently absent from home for work.

The Defendant initially slept in the second bedroom, while the victim and her sister slept in the master bedroom with her parents. The third bedroom was occasionally occupied by men who worked for her father or by two more of the victim's uncles.Although the second bedroom and the master bedroom were connected by a door, the victim testified that the second bedroom also had a door which led to the living area. The victim testified that she thought that bunk beds were moved into the second bedroom around 2001.

The victim's father confirmed that the family lived in Memphis and that the Defendant lived with them while the Defendant was in middle school and high school. The victim's father testified that he was in charge of the work force for a construction company, and he was frequently absent from his home when working in Memphis and also frequently out of town to supervise long-term projects. The household consisted of the victim's father and mother, the victim, and her younger siblings. Three of the victim's maternal uncles resided with the family at various times. The victim's father testified that the Defendant "always stayed there."

The victim testified that the Defendant began to touch her inappropriately almost immediately after he moved into the home. She testified that the abuse consisted of the Defendant repeatedly penetrating her vagina with his fingers, penetrating her anus, and performing oral sex on her. She recalled the first time it happened, the Defendant was throwing her up in the air, then started moving her in circles through the air and put his fingers into her underwear. She asked him to put her down and watched carefully as he played with her younger sister. Although she was "determined to tell" if she saw the Defendant do the same thing to her sister, she did not tell anyone what the Defendant had done to her because the Defendant did not assault her sister.

The Defendant lived with the family until after the victim's baptism on June 18, 2000. The victim was able to recall this date because she was beset by a worry that the Defendant's abuse meant that she was committing adultery and that Jesus would not love her. She was excited at the thought that her sins would disappear with her baptism, but the abuse continued. The Defendant left briefly but returned to live with the family sometime after May 12, 2001, which was the date of the victim's first communion. The victim was able to recall this date because she had been told she could not take first communion without confessing her sins. She accordingly told a priest about the abuse, but the priest took no action. The victim felt she was able to "start again" after confessing prior to her first communion. However, the Defendant returned to Memphis after the victim's first communion and began abusing her again. She specified that she recalled that the Defendant was not living with the family in May during her first communion but that he was living there during September 11, 2001. He left shortly thereafter to go to Houston.

The victim testified that in addition to telling the priest and her aunt, who was also a child and only one year older than the victim, she attempted to tell her mother andgrandmother about the abuse when she was around nine years old and in Houston for Christmas. At this time, the Defendant was living in Houston with the victim's grandmother. The victim told her mother and grandmother, "[The Defendant] touched my butt," but she did not elaborate because she was worried that she had interrupted their conversation. The victim's mother did not ask her questions about her statement or take any action to stop the abuse. The victim testified that she did not have an open relationship with her mother and that her mother had raised the Defendant as a son.

When the victim was eleven years old, around 2003 or 2004, the Defendant returned to live in the victim's home. At this time, he slept on a couch in the living room, and she slept in the second bedroom. The Defendant continued to abuse her. Sometimes, he would play pornographic videos on the television in the living room in the early morning hours, and then go into her bedroom, from which the television could be seen through the open door. He would slide under her bed and penetrate her vagina with his fingers. She testified the bed was about twelve inches off the floor.

The victim testified about a specific instance of abuse which took place in April or May 2004. At that time, the victim had read about girls her age being impregnated by relatives, and she was afraid she would suffer the same fate. The victim recalled that on one occasion, the Defendant pushed her into the bathroom and performed oral sex on her. After he stopped, she told him, "No, this isn't happening anymore. Like, I'm done — like, no." The Defendant responded that he would only stop assaulting her if she would take pictures of her genitals and breasts using his flip phone. The victim took the pictures, but the Defendant was dissatisfied with their quality and told her to take different pictures. The victim warned the Defendant that she was going to tell her mother. She testified that it was a mistake to give him the warning, because he immediately took the pictures to the victim's mother and told the victim's mother that he had found them on his cell phone and did not know why the victim had put them there. Although the victim responded by telling her mother about the continuous abuse,...