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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
August 5, 2003 Session STATE OF TENNESSEE v. CARL WATSON
Direct Appeal from the Criminal Court for Shelby County No. 99-00179 Chris Craft, Judge

No. W2002-01679-CCA-R3-CD - Filed September 30, 2003

A jury convicted the Defendant, Carl Watson, of rape, and the trial court imposed a ten-year sentence. On appeal, the Defendant contends: (1) the evidence was insufficient to support his conviction; (2) the State's bill of particulars was inadequate; (3) the trial court erred in failing to grant him a continuance or a mistrial due to the State's failure to comply with discovery; (4) the trial court erred in excluding evidence of the victim's alleged gang affiliation and initiation as a possible source of her hymenal tear; and (5) the trial court erred in not recusing itself following an ex parte communication with jurors after trial. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and NORMA MCGEE OGLE , JJ., joined. Joseph S. Ozment, Memphis, Tennessee, for the appellant, Carl Watson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen P. Jones and Amy P. Weirich, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION The victim, S.W.,1 testified she awoke from a nap to find she was partially unclothed, and that the Defendant, her mother's live-in boyfriend, was on top of her having sex. She stated his penis was in her vagina and "clear stuff" came out. According to the victim, she told the defendant "to get up off of [her]." She testified the Defendant said he was putting covers over her and told her not to tell her mother. She indicated he was not wearing the back brace that he often wore.

The proof indicated the offense was c omm itted when the victim was fourteen years old. Therefore, in keeping with this court's policy of referring to juvenile victims of sex crimes by their initials, we refer to this victim by her initials even though she was an adult at the time of trial.

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The victim stated the offense occurred on Friday, August 26, 1998.2 She said she reported it to her mother on Saturday night during an argument with the Defendant. She testified the Defendant threw a fan at her and then struck her face with his hand after her mother confronted him regarding the allegations. The victim said the offense was reported to the police on Sunday. The victim also testified that later that day, the Defendant apologized for "touching on" her. The victim's mother, Cozette Wells, recounted that the Defendant and victim argued on a Saturday night, and in the course of the argument, the victim said the Defendant had been "touching" her. Ms. Wells testified that after she questioned the Defendant regarding the victim's allegations, the Defendant "smacked" the victim and hit her in the face with a fan. Ms. Wells testified she called the police, and they arrested the Defendant on Sunday. She stated the victim told her the rape occurred on Monday, August 24th, and that she gave this information to the police. Ms. Wells indicated the victim was mentally retarded and was in a "resource" class at school. She also stated the Defendant's back brace did not hinder him from having sex or engaging in other physical activities. Police Officer Delbert Polk testified that on August 30, 1998, he went to the family's home in response to a reported assault. Officer Polk said the Defendant indicated he could not have raped the victim because he was wearing a back brace. Officer Polk also said the Defendant described the victim as "slow" and said she was "lying." Nurse Sandra Anderson testified she examined the victim at the Memphis Sexual Assault Center and noticed a tear in the victim's hymen. She was unable to conclude that the tear necessarily resulted from sexual activity. At trial, the Defendant denied having sex with the victim. According to the Defendant, at the time of the offense, he wore a back brace due to fractured pelvic bones and his injuries prevented him from engaging in sexual intercourse. He stated the victim accused him of "touching on" her after he slapped her for striking her brother. He denied throwing a fan at the victim; he said he held a fan up in self-defense because the victim had a knife. He testified the police were called the following day, and he was arrested. He said he told the police he was not alone with the victim on Monday, August 24th, the date initially identified by the victim as the date of the offense. The Defendant's sister testified Cozette Wells said she thought the victim lied about her accusations. The Defendant's mother testified Ms. Wells and the victim had a reputation for untruthfulness. The jury convicted the Defendant of rape. Although the Defendant was also charged with rape of a child and aggravated sexual battery stemming from an alleged separate incident, the jury acquitted the Defendant of those charges.

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August 26, 199 8, fell on a W ednesday.

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I. Sufficiency of the Evidence The Defendant argues there was insufficient evidence to convict him of rape. Tennessee's rape statute provides rape is the unlawful sexual penetration committed by a person who: (1) uses force or coercion; (2) knows or has reason to know that the victim does not consent; (3) knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or (4) uses fraud. Tenn. Code Ann.

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