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Chattanooga Times Free Press (Tennessee)
Gatlinburg, Tenn., police detective Rodney Burns, the only adult still facing charges in connection with the Ooltewah High School rape case, continued to argue Wednesday that his case should be dismissed.
Burns faces two counts of aggravated perjury in connection with his February 2016 testimony in the case. The offense is a class D felony that carries a sentence of between two and four years in prison.
Burns and his attorneys Stephen Greer and Bryan Delius appeared Wednesday before Hamilton County Criminal Court Judge Tom Greenholtz. The attorneys argued the charges should be dismissed because the alleged perjurious statements were made in a court without the proper jurisdiction and the statements didn't affect the outcome of the hearing.
Greer said that, to be charged with aggravated perjury, the statements in question must have bearing on the decision made in the case.
"What Mr. Burns is alleged to have testified to falsely could not conceivably have a bearing on the issues that were being decided by the juvenile court in that case," Greer said. "Therefore his testimony, even if you assume it was false, is not material to that proceeding."
Last February, Hamilton County District Attorney General Neal Pinkston asked the Tennessee Bureau of Investigation to look into Burns' testimony during the preliminary hearing of the three former Ooltewah High School employees charged with failing to report child sexual abuse. The TBI concluded in May that Burns gave untruthful testimony. According to the May grand jury indictment, Burns "unlawfully and with intent to deceive" made two false statements under oath during that testimony.
Burns testified last February "there was no rape or torture, no screams of anguish." But previously he wrote in police reports that someone told him "the victim yelled out in pain" and another person said "he could hear [the victim] yelling when they had attacked," according to the indictment.
The indictment also states Burns didn't testify truthfully when he said he called authorities to report the incident on Christmas Eve. Later in the same testimony he contradicted himself, saying calling that particular authority was not "within the parameters of what we report."
During Wednesday's hearing, Pinkston said the statements Burns made about alerting authorities about the attack and the victim's screams were important to the February 2016 hearing, as it impacted what information the adults had about the situation.
Greenholtz ruled against Greer's motion to dismiss the case, and he said that issue should be taken up during the trial.
Delius then argued the case should be dismissed because Hamilton County Juvenile Court did not have jurisdiction to hold the preliminary hearing, arguing the proceedings should have taken place in Hamilton County General Sessions Court.
"The Juvenile Court is a court of exclusive jurisdiction for only those things the Legislature has given them authority over," Delius said. " ... the court did not have jurisdiction to try an adult criminal case."
Despite the charge of failure to report child sexual abuse being listed in the juvenile code section, the matter should have taken place in criminal court, he said.
Pinkston responded that the "murkiness or ambiguity" of the state's statutes dealing with reporting of child abuse and child sexual abuse made it appropriate for Hamilton County Juvenile Court Judge Rob Philyaw to hold the preliminary hearing.
Greenholtz asked Pinkston to file a response to Delius' motion on the matter before he made a decision whether to dismiss.
In previous hearings, Burns argued Pinkston should not be allowed to prosecute his case because of a conflict of interest. But in October Greenholtz ruled Pinkston can remain on the case.
Greenholtz decided in January to grant Burns' request for an interlocutory appeal, which allows Burns to ask the Tennessee Court of Appeals to look into the judge's decision.
Greenholtz said Wednesday that, to his knowledge, the Court of Appeals has not made any progress in the matter.
If the higher court chooses not to reverse Greenholtz's decision, a jury trial is scheduled to begin June 27.
Three adults were charged with failure to report child sexual abuse in connection with the pool-cue rape of a freshman Ooltewah basketball player, but the charges against each were dismissed.
Hamilton County Criminal Court Judge Don Poole dismissed the charges against Ooltewah High School's head basketball coach, Andre "Tank" Montgomery, in December. Poole said that under the state statute, Montgomery was not required to report that incident of sexual abuse to authorities.
He interpreted the statute regarding the reporting of child sexual abuse to say that adults only have the legal obligation to report the abuse of a minor between the ages of 13 and 17 if it is committed by a member of the child's household. Since the charges involved the victim's teammates, Poole said, Montgomery was not legally obliged to report the abuse.
Poole reminded the courtroom at the time that someone cannot be charged based on their moral obligation to do something, but the court must make its decision based on the law.
Since that ruling, local lawmakers are working to rewrite the statute, requiring adults to report all child abuse cases, and clarifying where and how abuse should be reported.
Pinkston previously filed charges of failure to report child sexual abuse against former Ooltewah High School volunteer assistant coach Karl Williams and the school's former athletic director, Allard "Jesse" Nayadley.
The charges against Williams were dropped in May. And two weeks before that, Nayadley accepted pretrial diversion, meaning he agreed to skip a grand jury review, and the charges will be erased if he completes 10 hours of community service, attends a course on reporting abuse and is well-behaved.
Three former Ooltewah High School players were convicted in connection with the rape that occurred during the team's trip to Gatlinburg to compete in a basketball tournament more than a year ago.
Contact staff writer Kendi A. Rainwater at krainwater@timesfree press.com or 423-757-6592. Follow her on Twitter @kendi_and.
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