A judge will decide whether to dismiss charges against former coach Andre "Tank" Montgomery near the one-year anniversary of the rape of an Ooltewah High School basketball player.
Judge Don Poole said Tuesday he plans to release his decision before the next hearing on Dec. 16 in Hamilton County Criminal Court. Until then, he will weigh the primary issue that District Attorney General Neal Pinkston and defense attorney Curtis Bowe have pointed out before: whether state laws are too vague concerning who is required to report instances of child abuse, and how timely those reports must be.
Bowe continued to argue that Pinkson's office didn't have discretion to file charges in Hamilton County when the incident happened in Sevier County, Tenn. "At best," he said, "this should be prosecuted in Sevier County."
He previously asked Poole to dismiss Montgomery's charges in a motion that includes that argument.
Bowe then focused on the ages of the boys accused of the rape, which happened during the basketball team's trip to compete in a tournament in Gatlinburg, Tenn., just days before Christmas 2015. They were 17 and 16, archives show.
But age plays a specific role in who takes the lead on a child abuse case. Law enforcement moves first with 13- to 17-year-olds, while the Department of Child Services handles 13-year-olds and under, Bowe said. At 18 years old, different charges typically apply.
"Thirteen- to 17-year-olds can't speak, articulate, ask questions and participate in their own investigation with police," Bowe said.
Pinkston replied there is a duty to report regardless of the age of the child. He noted that some of the statutes aren't crystal clear about whether children can be charged with child sexual abuse.
"But nonetheless," he said, "child sexual abuse can involve children, as we have pointed out."
Records show one of the boys, now 18, was found guilty of aggravated rape and aggravated assault in a Sevier County Juvenile Court. The other two boys were found guilty of aggravated assault.
Montgomery, who no longer works for Ooltewah High School, faces four counts of failure to report child sexual abuse. Bowe wrapped up his argument with their two main points.
"One, you have to know how something's going to happen. And two, you have to know what you're supposed to be reporting and to whom," he said.
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.
Regardless, Poole said, the courts had knowledge of a terrible act that occurred in Sevier County.
"This is somewhat separated from who has to report it and where you have to report it to," he said.
Contact staff writer Zack Peterson at email@example.com or 423-757-6347. Follow on Twitter @zackpeterson918.