08/06/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE November 14, 2017 Session STATE OF TENNESSEE v. JOSE ORTIZ Appeal from the Circuit Court for Montgomery County No. 41301368 Jill Bartee Ayers, Judge ___________________________________ No. M2016-02457-CCA-R3-CD ___________________________________ The Appellant, Jose Ortiz, was convicted of child abuse and aggravated sexual battery. The trial court imposed a total effective sentence of eight years in the Tennessee Department of Correction. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his convictions and contends that “to enable reasonable appellate review[, this] court must establish a standard of performance for the trial court to satisfy its duty as the thirteenth juror.” Upon review, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and ALAN E. GLENN, J., joined. Patrick T. McNally, Nashville, Tennessee (on appeal), and Chase Smith, Clarksville, Tennessee (at trial), for the Appellant, Jose Ortiz. Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION I. Factual Background A Montgomery County Grand Jury returned a multi-count indictment against the Appellant, charging him with two counts of rape of a child and two counts of aggravated sexual battery. The victim of the offenses was his eleven-year-old stepdaughter, I.Z.1 On 1 It is the policy of this court to refer to minor victims by their initials. the day of trial, the State dismissed one of the rape of a child counts and one of the aggravated sexual battery counts. At trial, the victim testified that she was born on February 23, 2002, and that she was thirteen years old at the time of her testimony. At the time of the offense, the Appellant was her stepfather, and she had called him “Dad.” The victim said that on the day of the offense, she, her two younger siblings, and the Appellant took her mother to work at a Mexican restaurant and then returned home. While her younger siblings were in the living room watching television, the victim went into the kitchen to make a sandwich. The Appellant came into the kitchen, stood behind her, and grabbed her “front [private] part and [her] back [private] part” over her clothes. She explained that her private parts were the parts covered by her underwear. She said that being grabbed by the Appellant felt “[w]eird.” After the Appellant grabbed her, he started moving; the victim demonstrated the movements for the jury.2 The Appellant stopped touching her, but the victim did not know why he stopped. She did not recall the Appellant saying anything to her. The victim then took her sandwich to her room and later returned the empty plate to the kitchen. As she was walking back to her room, the ...
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