State of Tennessee v. Patrick Phillips ( 2020 )

11/20/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 5, 2020
STATE OF TENNESSEE v. PATRICK PHILLIPS
Appeal from the Criminal Court for Shelby County
No. 13-03536 W. Mark Ward, Judge
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No. W2019-02004-CCA-R3-CD
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A Shelby County jury convicted the defendant, Patrick Phillips, of rape of a child and
aggravated sexual battery. Following a sentencing hearing, the trial court imposed an
effective sentence of twenty-seven years in confinement. On appeal, the defendant
challenges the sufficiency of the evidence to support his convictions and argues the trial
court erred in denying his motion for new trial based on the State’s failure to answer the
defendant’s motion for a bill of particulars. After reviewing the record and considering the
applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
ROBERT H. MONTGOMERY, JR., JJ., joined.
Monica A. Timmerman, Bartlett, Tennessee (on appeal) and Ralph T. Gibson, Memphis,
Tennessee (at trial), for the appellant, Patrick Phillips.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Devon Lepeard,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On August 1, 2013, a Shelby County Grand Jury indicted the defendant for rape of
a child and aggravated sexual battery. The defendant was charged with abusing K.W., the
daughter of his girlfriend.1 The victim, who was born in October 2000, was seventeen
years old at the time of trial.
The allegations against the defendant arose in November 2012. At the time, the
victim and her siblings lived with their father in Greenwood, Mississippi, during the school
week and visited their mother at the home she shared with the defendant in Bartlett,
Tennessee, on the weekends and during school breaks. The victim, who was twelve years
old at the time, and her siblings stayed with their mother and the defendant during the
weekend of November 2-4, 2012. Because the victim’s mother worked at night, the
defendant was responsible for watching the victim and her siblings from approximately
10:15 p.m. until 7:00 a.m.
One night that weekend and after her mother left for work, the victim was in her
mother’s bed watching television when the defendant began giving her a massage.
Although the defendant had given the victim back massages in the past with the victim’s
mother present, the victim’s mother had told the defendant not to massage the victim
anymore because it “was crossing the line.” However, this time, in addition to massaging
the victim’s lower back, the defendant also rubbed the victim’s buttocks. During the
massage, the victim fell asleep, and when she awoke, she was “half dressed in a weird
position.” The victim’s sweatpants were off, and she was lying face down on the bed with
her knees bent and her waist in the air. The defendant, who was behind the victim, “put
his mouth on [her] private part” and digitally penetrated her vagina. The victim was afraid
and told the defendant to stop, but he continued assaulting her. After he was finished, the
defendant went into the bathroom and returned with a box of tissues. The defendant then
attempted to vaginally penetrate the victim with his penis but was unable to fully penetrate
her. During this time, the defendant would occasionally use the tissues to “wipe whatever
liquid was there.” After approximately ten minutes, the defendant “gave up” and returned
to bathroom, and the victim ran to her bedroom.
The victim did not initially tell her mother about the assault because she was worried
her mother would not believe her. Instead, the victim wrote her mother a note explaining
what had happened and placed it in her mother’s purse. However, the victim’s mother did
not find the note until January 5, 2013, after cleaning out her purse. Because the note was
not found until two months after the assault, the victim was around the defendant several
times in November and December. During that time, the victim tried to act as normal as
possible in the defendant’s presence because she did not want to “start a conflict” between
the defendant and the victim’s mother. Upon discovering the note, the victim’s mother
immediately went to Mississippi to meet with her ex-husband and the victim, and after the
1
It is the policy of this Court to refer to victims of sexual abuse by their initials. For purposes of
this opinion, “the victim” will refer to K.W. unless otherwise noted.
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victim told her parents what the defendant had done, they drove to the Bartlett Police
Department (“BPD”) to file a police report.
Following the initial report, Detective Rebeka Anderson with the BPD’s
Investigative Citizens Division was assigned to the victim’s case. Detective Anderson
coordinated with the Memphis Child Advocacy Center to schedule a forensic examination
of the victim, which was conducted on January 25, 2013, by forensic interviewer Letitia
Cole. While only Ms. Cole and the victim were in the interview room, Detective Anderson
observed the interview via closed circuit television. The victim’s forensic interview was
played for the jury and entered into evidence.2
The victim also underwent two physical examinations. The first exam at
Greenwood Children’s Clinic on January 22, 2013, revealed that the victim’s hymen was
not intact, and the victim was referred to The Children’s Safe Center of Mississippi (“the
Safe Center”) for a second exam.
Dr. Scott Benton, an expert in pediatric forensic medicine and the medical director
of the Safe Center, reviewed the findings of the victim’s second physical exam which was
performed at the Safe Center on February 1, 2013. Although the victim’s physical exam
was normal, Dr. Benton noted the length of time between the incident and exam and stated,
if the victim had suffered injuries during the abuse, “[t]ime definitely has an ability to heal
that type of skin.” Dr. Benton also opined that the results of the victim’s first exam at
Greenwood Children’s Clinic were misinterpreted and that the victim’s hymen was “most
likely” intact at the time of both exams.
Following her discovery of the note, the victim’s mother confronted the defendant
through text messages. The defendant admitted to giving the victim a massage and told
the victim’s mother “he felt bad for doing it.” At trial, the victim’s mother testified the
defendant knew which date the victim was talking about because it was the same night the
victim’s mother accused the defendant of not responding to her text messages. After the
defendant was made aware of the victim’s allegations, he left the house he shared with the
victim’s mother, and she was unable to reach him for several days. The defendant
eventually reinitiated contact with the victim’s mother, and because she was afraid he
would leave the area again, she pretended to remain in a romantic relationship with him.
She also continued having sexual relations with the defendant and told him that she did not
believe the victim’s allegations. However, at the same time, she was in contact with
Detective Anderson, advising her of the defendant’s contact information and whereabouts.
2
Although the forensic interview was entered into evidence, none of the trial exhibits were made
a part of the record on appeal.
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Detective Anderson told the victim’s mother to be cautious in her interactions with the
defendant and not to put herself in harm’s way.
At trial, the State called the victim, the victim’s mother, the victim’s father, Dr. Scott
Benton, Detective Rebeka Anderson, and Letitia Cole as witnesses, and all rendered
testimony consistent with the foregoing. On cross-examination, the victim agreed the note
to her mother was dated November 6, 2012, and because that was a Tuesday, the victim
would have been in Mississippi on that date. However, the victim testified the 6th was an
approximate date, and while she knew the assault occurred in November, she could not
narrow it down to a specific date.
The defendant called Kimberly Carter, Ms. Carter’s granddaughter, A.T.,3 and Vora
Lewis as witnesses. Kimberly Carter, a friend of the defendant, testified that from March
to June 2012, she often babysat for the victim and her siblings when they stayed at the
defendant’s house. Ms. Carter testified the victim was “not very honest” and lied about
household rules such as when she was supposed to go to sleep or what television programs
she was allowed to watch. The victim also went into the defendant’s music studio, which
was off-limits to the children. After the victim’s cell phone was taken away, Ms. Carter
testified the victim became “extremely angry” and “very disillusioned” with the defendant.
Ms. Carter stated she held the defendant in “extremely high regard” and never saw him act
inappropriately toward children. On cross-examination, Ms. Carter testified the victim’s
cell phone was taken away in May and admitted she was not around the house in November
when the abuse occurred.
A. T., who was twelve years old at the time of trial, testified she would often
accompany her grandmother to the defendant’s house when her grandmother babysat for
the victim and her siblings. A.T. testified the victim’s reputation for honesty was “very
poor.” According to A.T., the victim would watch inappropriate videos and go into the
defendant’s studio when he was not home. When the victim’s cell phone was taken away,
she acted as if the defendant “was this evil being because he disciplined her.” A.T. testified
she never saw the defendant do anything inappropriate. On cross-examination, A.T.
admitted she had not been around the defendant or the victim since A.T. was five years
old.
Vora Lewis met the defendant in August 2011 when they attended Belhaven
University together. In December 2012, Ms. Lewis was hospitalized, and the defendant
and the victim’s mother brought the victim and her siblings to the hospital to visit Ms.
Lewis. During the visit, the defendant and the victim interacted and “looked natural.” The
victim was smiling and laughing, and she did not “appear to be in any type of trauma.”
3
It is the policy of this Court to refer to minors by their initials.
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Ms. Lewis testified the defendant’s “character for honesty is absolutely commendable,”
and she had never seen him be dishonest or act inappropriately around women or children.
On cross-examination, Ms. Lewis acknowledged she did not know the victim prior to the
hospital visit and admitted she did not have training in child psychology or trauma
reactions.
The defendant testified on his own behalf, stating he met the victim’s mother in
October 2011. After they began living together in early March 2012, the victim and her
siblings would stay at their house on the weekends and during school breaks. Initially, the
defendant believed his relationship with the victim was “awesome.” Although the
defendant helped to enforce household rules, the victim’s mother was in charge of
administering any discipline. However, as time went on, the defendant became aware that
the victim was lying and breaking the rules. Specifically, as the defendant was examining
the victim’s cell phone bill, he noticed several phone numbers that were not associated with
family members and took the victim’s cell phone away.
Regarding the massages, the defendant testified he and the victim’s mother received
a couple’s massage in April 2012 for his birthday. After telling the children about the
massages, they were “curious,” so the defendant and the victim’s mother showed them
some of techniques. In June 2012, the defendant gave the victim a second massage in the
presence of her mother. The defendant testified he was never alone with the victim in his
bedroom for any reason and did not rape, molest, or fondle the victim in any way.
In January 2013, the defendant was at work when he received a text message from
the victim’s mother stating the victim had accused the defendant of rape. Because he
“fear[ed for] his safety,” the defendant went to Louisiana to visit his father for a few days.
After returning to Memphis, the defendant stayed at the house he shared with the victim’s
mother finding an apartment in March. During this time, the defendant remained in a
romantic relationship with the victim’s mother. However, the relationship ended, in part,
because the victim’s mother refused to finalize her divorce from the victim’s father.
At one point, the defendant went to Bartlett City Court for a speeding ticket and saw
Detective Anderson. She approached the defendant, who stated he would only speak to
her with his attorney present. Although the defendant gave Detective Anderson the name
of his attorney, the defendant was never contacted to set up an interview.
On cross-examination, the defendant agreed he often watched the children while the
victim’s mother worked overnight, and in November 2012, the children stayed at his house
on the first weekend of the month and during Thanksgiving break. Although it was
common for the defendant and the victim’s mother to text each other while the victim’s
mother was at work, the defendant stated he sometimes fell asleep and would not answer
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her texts. He agreed there was a gap in his responses to the victim’s mother from 11:50
p.m. until 6:00 a.m. on the night of November 3th and morning of November 4th. The
defendant also admitted to giving the victim a massage that weekend. However, he stated
that he gave her the massage early in the evening before the victim’s mother went to work
and that the victim’s mother was present during the massage. Additionally, the defendant
acknowledged he was previously charged with simple possession of marijuana but stated
the charge was dismissed.
In rebuttal, the State offered testimony from Berenika Brown, who testified she had
been in a relationship with the victim’s father since 2010 and was around the victim on a
daily basis. Ms. Brown testified she had never had a problem with the victim because she
was a “good kid.” Ms. Brown also stated the victim did not complain or argue when she
was punished. The victim’s mother and the defendant also testified in rebuttal. The
victim’s mother testified she had only seen the defendant give the victim one massage, and
it was approximately a month before the incident. She denied discussing the couple’s
massage with the children or demonstrating massage techniques with the defendant. The
defendant testified he, the victim’s mother, and the children watched a movie on November
2, 2012, and the defendant gave the victim a massage on his bed in front of the victim’s
mother and the other children.
Following deliberations, the jury found the defendant guilty of rape of a child and
aggravated sexual battery, and the trial court subsequently sentenced the defendant to an
effective sentence of twenty-seven years in confinement at 100 percent.4 The defendant
filed a motion for new trial, arguing, in part, the indictment was defective due to lack of
specificity as to the date and time of the crime; the State should have amended its bill of
particulars to allege the crime occurred on November 2nd; and the evidence was
insufficient to support his convictions. The trial court denied the motion for new trial, and
this timely appeal followed.
Analysis
On appeal, the defendant argues the evidence presented at trial was insufficient to
support his convictions. The defendant also contends the trial court erred in denying his
motion for new trial based on the State’s failure to answer the defendant’s motion for a bill
of particulars. The State contends that the evidence is sufficient and that the trial court
properly rejected the defendant’s claim that the State failed to provide an adequate bill of
particulars.
4
Although it appears the transcript of the trial proceedings is six volumes, volume six was not made
a part of the record on appeal.
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I. Bill of Particulars
The defendant argues the State failed to answer his motion for a bill of particulars,
and therefore, the trial court should have granted his motion for new trial. However, a
review of the record, specifically the defendant’s amended motion for new trial and his
argument during the hearing on his motion for new trial, reveals that the State did file a bill
of particulars. Therefore, the defendant’s claim is without merit, and he is not entitled to
relief.
Tennessee Rule of Criminal Procedure 7(c) provides that “[o]n defendant’s motion,
the court may direct the district attorney general to file a bill of particulars so as to
adequately identify the offense charged.” The bill of particulars is intended to “provide
information about the details of the charge when necessary for a defendant to prepare his
or her defense, to avoid prejudicial surprise at trial, and to enable the defendant to preserve
a plea of double jeopardy.” State v. Speck, 944 S.W.2d 598, 600 (Tenn. 1997). In the bill
of particulars, the State may be required to include information pertaining to the nature,
time, date, or location of the offense. Id. In the event the State is unable to provide an
approximate time or date of the alleged offense, a lack of specificity will not result in
reversible error unless the defendant can prove prejudice. Id. at 601.
The instant indictments allege the offenses were committed between March 1, 2012
and January 9, 2013. The defendant filed a pretrial motion for a bill of particulars,
requesting the exact date, time, and location of the offenses and acts alleged to have been
committed. Although the record does not contain the order granting the defendant’s motion
or the State’s response, trial counsel made several references to the State’s bill of
particulars in the defendant’s motion for new trial. More specifically, in his amended
motion for new trial, the defendant noted:
2. Attached hereto as Exhibit 15 is copy of the State’s Response to
Defendant’s Motion for Bill of Particulars. Paragraph 1 of the foregoing Bill
of Particulars states:
As to the exact date and time of offenses alleged in each count of the
Indictment, it is not possible for the State to give an exact date, due to
the child’s memory, but the time frame can be narrowed to the range of
dates listed in the Indictment. The child-victim will testify that the
offense occurred on a day in November 2012.
5
The exhibits to the defendant’s amended motion for new trial were not included in the record on
appeal.
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The defendant then concluded his motion by asking the trial court to award him a new trial
“based on the State’s failure to amend the Bill of Particulars” to provide the defendant with
the exact date in November 2012. Additionally, the defendant’s argument during the
hearing on the motion for new trial tracks the language of his motion. At no point does the
defendant ever claim the State failed to file a bill of particulars; rather, the defendant’s
entire argument was that the bill of particulars, despite reducing the time frame from ten
months to one month, was not sufficient.
Contrary to the defendant’s new claim that the State failed to file an amended motion
for a bill of particulars, the record reveals the State complied with the trial court’s order
and filed a bill of particulars in which it narrowed the timeframe of the incident from ten
months to one month. Accordingly, the defendant’s claim is without merit, and he is not
entitled to relief on this issue.
II. Sufficiency
When the sufficiency of the evidence is challenged, the relevant question of 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. 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 following 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(Tenn. 1963)). “A jury conviction removes the presumption of innocence with which a
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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).
The jury convicted the defendant of one count of rape of a child and one count of
aggravated sexual battery for his crimes against the victim. At the end of trial, the State
elected the specific facts upon which it relied for each conviction. The State alleged the
defendant committed rape of a child by giving the victim oral sex after the massage. The
State alleged the defendant committed aggravated sexual battery by touching the victim’s
buttocks during the massage. The defendant contends the evidence is insufficient to
support these convictions because they rest solely on the testimony of the victim, a witness
whose “credibility was seriously called into question,” absent any physical or forensic
evidence. The State contends the victim’s trial testimony alone was sufficient to support
the defendant’s convictions.
Rape of a child is “the unlawful sexual penetration of a victim by the defendant or
the defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522. Sexual penetration includes
“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.” Tenn. Code Ann. § 39-13-501 (7). “Aggravated sexual battery is unlawful
sexual contact with a victim by the defendant or the defendant by a victim” and “[t]he
victim is less than thirteen (13) 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).
Viewed in the light most favorable to the State, the proof at trial revealed the victim
was in the defendant’s bedroom watching television when he began to give her a massage.
Although the defendant had previously given the victim a back massage, this time the
defendant also rubbed the victim’s buttocks. During the massage, the victim briefly fell
asleep, and, when she woke up, she was partially undressed and lying on her stomach with
her knees bent and her waist in the air. The defendant then “put his mouth on [the victim’s]
private part.” The abuse occurred in November 2012 when the victim was twelve years
old. The defendant denied raping the victim at trial. Based on this evidence, a rational
jury could find rape of a child and aggravated sexual battery beyond a reasonable doubt.
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Although the defendant argues the State failed to present any evidence to
corroborate the victim’s testimony, her testimony alone is sufficient to support the
defendant’s convictions. State v. Elkins, 102 S.W.3d 578, 582-83 (Tenn. 2003) (stating a
child victim’s testimony regarding sexual contact can be sufficient to support a defendant’s
conviction). Moreover, questions regarding the victim’s credibility and the weight and
value to be given her testimony are to be determined by the trier of fact and not this Court.
State v. Bland, 958 S.W.2d 659, 659 (Tenn. 1997). Through its finding of guilt, the jury
accredited the testimony of the victim and rejected that of the defendant, and we will not
disturb that finding on appeal. Id. The defendant is not entitled to relief on this issue.
Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
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J. ROSS DYER, JUDGE
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