Page 34 - November December 2020 TPA Journal

We draw all reasonable inferences in favor of the does not support a reasonable inference that, since
verdict. But “juries are not permitted to come to Metcalf thought that it was sexual for Allen, she
conclusions based on mere speculation or factual- must have known that Allen had been sexually
ly unsupported inferences or presumptions.” assaulting Amber or that he would in the future.
“[A]n inference is a conclusion reached by con- We agree.
sidering other facts and deducing a logical conse- According to the State, while the whistle, cell
quence from them. Speculation is mere theorizing phone, and beaded curtain were ostensibly to pro-
or guessing about the possible meaning of facts tect Amber, the pitiful “protection” showed that
and evidence presented.” While “[a] conclusion Metcalf knew that Allen was sexually assaulting
reached by speculation may not be completely Amber and that she intended to promote or assist
unreasonable,” and it might even prove to be true, Allen in sexually assaulting Amber. The problem
it is not sufficiently based on facts or evidence to with the State’s argument is that, if Metcalf gave
support a finding beyond a reasonable doubt. Amber the whistle and cell phone and put up the
A rational jury could have believed or disbelieved beaded curtain to protect her—even though the
Amber’s testimony that she heard Allen tell measures were woefully inadequate—that tends
Metcalf that Amber was just having nightmares, to show that it was not Metcalf’s intent to pro-
but there is no evidence from which a rational jury mote or assist Allen in sexually assaulting Amber.
could have reasonably inferred that Metcalf did While a rational jury did not have to believe that
not believe Allen and that she knew he was actu- Metcalf gave Amber the cell phone and whistle
ally sexually assaulting Amber. Similarly, while and put up the beaded curtain to protect her, there
Amber’s statements to Metcalf that Allen was a is no other evidence showing why Metcalf gave
“monster” and was doing “bad things” are incred- Amber those items and put the curtain up. In other
ibly troubling, the State concedes that Amber’s words, even if the jury disbelieved Metcalf, it
comments were too ambiguous to support a rea- could not have reasonably inferred from that dis-
sonable inference that Metcalf knew that Allen belief that Metcalf gave Amber the cell phone and
was sexually assaulting Amber. We agree. Amber whistle because she knew for a fact that Allen was
never told Metcalf what she meant, and Metcalf sexually assaulting Amber and that it was her
never asked. intention to promote or assist in the commission
Without more context, Amber’s comments are of those sexual assaults, including the charged
insufficient to support a reasonable inference that offense.
Metcalf knew that Amber meant that Allen was Addressing the extraneous incident when Metcalf
sexually assaulting her. saw Allen sexually assaulting Amber, the court of
Also, a rational jury could have believed Amber’s appeals concluded that, While the 2011 incident,
testimony that she cried out for her mother and when coupled with Amber’s statements that she
that she was unsure whether her mother was home cried out for her mother and believed her “mother
when she cried out, but that evidence does not was letting it happen,” could have contributed to
support a reasonable inference that Metcalf was the belief that Metcalf may have known or sus-
home, that Metcalf heard Amber, and that she did pected some untoward behavior on Allen’s part
nothing because she knew that Allen was sexually prior to that incident, Amber testified that she did
assaulting her. not inform Metcalf that Allen was sexually abus-
With respect to the jogging incident, the court of ing her before the anal penetration alleged in the
appeals found the evidence sufficient to show that State’s indictment
Metcalf thought that Allen was sexually interested occurred.
in Amber, but it concluded that Metcalf’s belief While it is indisputable that Metcalf knew that

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