IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1999 SESSION
FILED
July 13, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9810-CC-00321
Appellee, )
) HARDIN COUNTY
VS. )
) HON. C. CREED McGINLEY,
RUSSELL LANE OVERBY, ) JUDGE
)
Appellant. ) (Rape)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY WILKINSON PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
RICHARD W. DeBERRY R. STEPHEN JOBE
Asst. District Public Defender Asst. Attorney General
117 Forrest Ave., North Cordell Hull Bldg., 2nd Fl.
Camden, TN 38320 425 Fifth Ave., North
(On Appeal) Nashville, TN 37243-0493
JAMES BROCKMAN ROBERT RADFORD
P.O. Box 25 District Attorney General
Parsons, TN 38363
(At Trial) JOHN OVERTON
Asst. District Attorney General
P.O. Box 484
Savannah, TN 38372
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was found guilty by a jury of rape and sentenced to a term
of twelve years to be served in the Tennessee Department of Correction. The
defendant’s subsequent motion for a new trial was denied by the trial court. The
defendant now appeals and presents the following issues for our review:
1. Whether the evidence is sufficient to support the defendant’s
conviction for rape;
2. Whether the trial court properly applied enhancement factors in
sentencing the defendant;
3. Whether the defendant “was denied the right to adequately
defend himself, because trial counsel did not adequately question the
defendant at trial”;
4. Whether the State prevented the defendant from completing his
testimony at trial; and
5. Whether the trial court erred in admitting hearsay testimony from
Jennifer Nelson, a witness for the State.
At trial, the victim, the defendant’s fourteen-year-old stepdaughter, testified
that the defendant had vaginally penetrated her with his penis. According to the victim,
this type of behavior had occurred on more than one occasion while her mother was
away from home. The victim described the circumstances surrounding the last incident
of this kind. The victim testified that she went to her bedroom and laid down on the bed.
The defendant entered the room, touched her breasts, and kissed her face. The
defendant then touched her with his “private parts.” According to the victim, the
defendant penetrated her vagina with his penis. After the defendant “was through,” the
victim took a bath to wash her “private part.” Approximately one week later, the Hardin
County Sheriff’s Department received a call from the victim’s school regarding the alleged
rape. The victim was subsequently taken to an emergency room where it was
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determined that her hymen had been ruptured.
The defendant first contends that the evidence is not sufficient to sustain
his conviction. A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in determining
whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not
reweigh or re-evaluate the evidence and are required to afford the State the strongest
legitimate view of the proof contained in the record as well as all reasonable and
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved
by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
3
The defendant contends that the evidence is insufficient to support his
conviction based on the following: the victim’s brother testified that the victim told him the
defendant did not rape her; the victim’s brother testified that he did not remember giving
a statement to authorities that the victim told him the defendant was abusing her and she
needed his help; the defendant’s mother testified that she did not know of any time that
the defendant was alone with the victim; the defendant’s mother testified that the victim
did not seem upset; and the defendant’s mother further testified that she did not see the
defendant act in a questionable way. However, this testimony was heard by the jury.
The jury, as is within their province, obviously credited the testimony of the victim over
that of the defendant’s witnesses. As such, this issue is without merit.
The defendant next challenges the trial court’s application of enhancement
factor (4), that the victim was particularly vulnerable because of age or physical or mental
disability, and enhancement factor (7), that the crime was committed to gratify the
defendant’s desire for pleasure or excitement. T.C.A. § 40-35-114(4), (7). The
defendant does not challenge the trial court’s application of enhancement factor (15), that
the defendant abused a position of private trust. T.C.A. §40-35-114(15).
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). We find that in this case the trial judge did consider the sentencing
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principles and all relevant facts and circumstances.
The Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-210,
provides that the minimum sentence within the range is the presumptive sentence. If
there are enhancing and mitigating factors, the court must start at the minimum sentence
in the range and enhance the sentence as appropriate for the enhancement factors and
then reduce the sentence within the range as appropriate for the mitigating factors. If
there are no mitigating factors, the court may set the sentence above the minimum in that
range but still within the range. The weight to be given to each factor is left to the
discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).
The defendant first challenges the trial court’s application of enhancement
factor (4), that the victim was particularly vulnerable because of age or physical or mental
disability. T.C.A. § 40-35-114(4). The defendant argues that there is nothing in the
record to support the application of this factor. However, the trial court specifically stated
that this factor was applicable not only because the victim was thirteen years old at the
time of the offense, but also because “it was established by the proof that the mental
status of the victim was not that of a regular 13 year old.” The victim was enrolled in
some type of special education course at the time of the offense and “her IQ was
considerably below average.” These facts support the trial court’s application of this
enhancement factor. See State v. John Claude Wells, III, No. 01C01-9505-CR-00146,
Davidson County (Tenn. Crim. App. filed June 6, 1997, at Nashville); State v. Clabo, 905
S.W.2d 197, 206 (Tenn. Crim. App. 1995). As such, this contention is without merit.
The defendant next challenges the trial court’s application of enhancement
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factor (7), that the offense was committed to gratify a desire for pleasure or excitement.
Tenn. Code Ann. § 40-35-114(7). The defendant again states that there is nothing in the
record to support the application of this factor. However, the record indicates that the
defendant not only vaginally penetrated the victim, he took off “most” of the victim’s
clothing, undressed himself, touched her breasts, and kissed her face. According to the
victim, the defendant “stopped [the rape] when he was through.” In light of the foregoing
facts, the trial court properly applied this enhancement factor. See State v. Antonio
Kendrick, No. 02C01-9604-CR-00121, Shelby County (Tenn. Crim. App. filed November
5, 1997, at Jackson) (holding enhancement factor (7) applicable where the appellant
kissed victim’s neck, pushed her onto the bed, removed her clothing, told her he wanted
to “play with her,” and penetrated her until he reached climax); see also Manning v. State,
883 S.W.2d 635, 639-40 (Tenn. Crim. App. 1994) (holding enhancement factor (7)
applicable where the appellant fondled and kissed the victim’s breasts and made sexually
explicit remarks while raping her).1
The defendant next contends that his trial counsel was ineffective for failing
to adequately question the defendant at trial. Specifically, the defendant argues that his
trial counsel did not adequately question him regarding the defenses he wanted to bring
out at trial. This issue is waived since the defendant has failed to make appropriate
references to the record. Tennessee Court of Criminal Appeals Rule 10(b); State v.
Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); see also T.R.A.P. 27(a)(7) and
(g). Absent waiver, this issue still lacks merit.
The findings of fact made by the trial court with regard to a claim of
1
The S tate conte nds tha t enhanc eme nt factor (1 ) was als o applica ble in the ca se at bar .
T.C .A. § 4 0-35 -114 (1). A s the defe nda nt wa s se nten ced to the ma xim um sent enc e with in the applic able
rang e and we fin d no e rror in the tria l cour t’s se nten ce, w e find no ne ed to addr ess the m erits o f this
contention.
6
ineffective assistance of counsel are binding upon this Court unless the evidence in the
record preponderates against these findings. See State v. Anderson, 835 S.W.2d 600,
607 (Tenn. Crim. App. 1992). Questions concerning the credibility of witnesses, the
weight and value to be given to their testimony, and factual issues raised by the evidence
are resolved by the trial court. Id. This Court must not re-weigh or re-evaluate the
evidence or substitute its inferences for those drawn by the trial court. Id. The defendant
bears the burden of illustrating that the evidence contained in the record preponderates
against the judgment of the trial court. Id.
When reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective counsel, a petitioner
“must show that counsel’s representation fell below an objective standard of
reasonableness” and that this performance prejudiced the defense. There must be a
reasonable probability that but for counsel’s error the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best
v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
The defendant contends that his trial counsel failed to adequately question
him at trial “concerning the defenses he wanted to bring out.” These “defenses” consisted
of the defendant’s allegation that it was his brother-in-law, rather than himself, who raped
the victim. At trial, the defendant claimed he found his brother-in-law with the victim and
his brother-in-law’s hands were in a “very uncompromising position.” At the evidentiary
hearing conducted in conjunction with the defendant’s motion for a new trial, the
defendant went into detail about instances in which he caught his brother-in-law with the
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victim, his brother-in-law admitted he was attracted to the victim, and his brother-in-law
confessed to raping the victim. The defendant claimed that at trial his attorney prevented
him from testifying about these incidents. James Brockman, the defendant’s attorney at
trial, also testified at the evidentiary hearing. Mr. Brockman stated that he found nothing
during his investigation to substantiate the defendant’s claim that his brother-in-law had
committed this crime. However, at trial Mr. Brockman did ask the defendant several
questions regarding his brother-in-law and the defendant’s allegations against him. In
fact, Mr. Brockman asked the defendant if “there [was] anything else” with regard to his
allegations against his brother-in-law. The defendant replied, “That’s pretty much it.”
In addressing this claim, the trial court found that Mr. Brockman was
“adequately prepared,” “engaged in an adequate investigation and full discovery” of the
facts, had a “legitimate trial strategy,” and “in no way” denied the defendant his right to
testify on his own behalf. The defendant has not proven that the evidence
preponderates against the trial court’s finding that Mr. Brockman did not deny the
defendant of the right to testify, nor has the defendant established that he was prejudiced
by any alleged error. As such, this issue is without merit.
The defendant next contends that the State did not allow him to adequately
testify at trial. This issue is waived for failure to present the facts relevant to the issue,
failure to set forth an argument as to the issue, and failure to make reference to the
record in support of the defendant’s argument. T.R.A.P. 27(a)(7); Tennessee Court of
Criminal Appeals Rule 10(b). Absent waiver, this issue still lacks merit because there are
no facts in the record to support the defendant’s contention. In fact, the trial transcript
indicates that on several occasions, it was the defendant who interrupted the State during
the State’s cross-examination. There is no indication in the record that the State ever
8
interrupted the defendant or kept him from “testifying fully at trial.”
The defendant’s final contention is that the trial court erred in admitting
hearsay testimony from Jennifer Nelson, a witness for the State. Specifically, the
defendant argues that no determination was made by the trial court regarding the
admissibility of this evidence. The testimony at issue refers to a statement made by the
victim to Ms. Nelson, the nurse who treated the victim at the emergency room. However,
the defendant failed to object to such testimony at trial. The failure of defense counsel
to make a contemporaneous objection waives consideration by this Court of the issue on
appeal. See Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988) (overruled
on other grounds); Killebrew, 760 S.W.2d at 235; T.R.A.P. 36(a). In addition, the
testimony at issue is practically identical to the testimony of Dr. Gigi Davis, the victim’s
treating physician at the emergency room. The defendant has made no argument
against the admission of Dr. Davis’ testimony. As such, any alleged error in the
admission of Ms. Nelson’s testimony does not appear to have affirmatively affected the
result of the trial and therefore was harmless. Tenn. R. Crim. P. 52(a).
Accordingly, we find no merit to the defendant’s contentions and thus affirm
the judgment of the trial court.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOE G. RILEY, Judge
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______________________________
THOMAS T. W OODALL, Judge
10
State v. Russell Overby
Combined Opinion