People v. Owens

Opinion

HANING, J.

Tommie Lee Owens appeals his conviction by jury trial of continuous sexual abuse of a child. (Pen. Code, § 288.5.)

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He contends the trial court committed instructional and evidentiary error and that the verdicts are inconsistent.

[1157]

Facts

Jana G. was 11 years old at the time of trial. Her mother, Julia B., married appellant in 1987 and Jana referred to him as “Dad.” The family lived in Dixon, Redding, Sacramento and at two different locations in Vacaville. In Vacaville appellant, Jana, her mother, grandmother and two brothers lived together from November 1989 until February 1991, when appellant moved out.

Jana testified that appellant first touched her “private parts” shortly after appellant and her mother were married, when she was seven years old. He continued to do so when they lived in Redding, Sacramento and Vacaville. The acts included rubbing her bare or clothed “bottom,” inserting his finger in her “bottom,” and rubbing, licking and inserting his finger in her vagina. She estimated that he rubbed her vagina more than 10 times. If Jana’s brothers or grandmother were home, these acts would take place in appellant’s locked bedroom. Otherwise, they occurred in Jana’s bedroom or on the living room couch. The incidents sometimes lasted 45 minutes. Sometimes while touching her appellant would ask, “Are you Daddy’s girl[,]” or ask if she was going to “tell on him[.]” On other occasions he would “make normal conversation.” About five or six times he told her that if she told anyone “he would hurt [her] or someone else.” She had seen him become violent with other family members.

Jana also testified that when she was three to five years old, “Rick,” her stepfather prior to appellant, used to rub her vagina “too hard” with.his fingers while bathing her.

After appellant moved out, Jana saw a television commercial about sexual abuse and told her grandmother about appellant’s conduct. Prior to that time she was afraid to tell anyone because she had seen appellant push her grandmother into a closet and hurt her, and he had spanked Jana with a leather belt, leaving marks. Jana told her mother after telling her grandmother.