IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 10, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9709-CC-00385
Appellee, )
) HUMPHREYS COUNTY
VS. )
) HON. ROBERT E. BURCH,
JEREMY AMIS, ) JUDGE
)
Appellant. ) (Aggravated Sexual Battery)
FOR THE APPELLANT: FOR THE APPELLEE:
SHIPP R. WEEMS JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
ROBERT H. STOVALL, JR. (At Trial) CLINTON J. MORGAN
Assistant District Public Defender Assistant Attorney General
P.O. Box 160 Cordell Hull Building, 2nd Floor
Charlotte, TN 37036-0160 425 Fifth Avenue North
Nashville, TN 37243-0493
GREGORY D. SMITH (On Appeal)
1 Public Square, Suite 321 DAN MITCHUM ALSOBROOKS
Clarksville, TN 37040 District Attorney General
GEORGE SEXTON
Assistant District Attorney General
County Courthouse, 2nd Floor
Court Square
Waverly, TN 37185
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
A Humphreys County jury found defendant guilty of aggravated sexual
battery of a twelve-year-old girl, a Class B felony. He was sentenced as a violent
100% offender to twelve years in the Department of Correction. Defendant raises
the following issues on appeal:
(1) whether the trial court erred in admitting the
testimony of two witnesses under the “excited
utterance” exception to the hearsay rule; and
(2) whether the sentence is excessive.
This Court finds no reversible error and affirms the trial court’s judgment.
FACTS
In October 1996, T.B.,1 age twelve, met defendant, age twenty-two, at the
home of an acquaintance. During the course of their meeting, they agreed to “be
boyfriend and girlfriend.” Defendant told T.B.’s friend, H.J., to leave the room. T.B.
and defendant were alone in the room for approximately an hour-and-a-half during
which time he tried to convince T.B. to have sex with him. After some time, she
finally “gave in” and, according to T.B.’s testimony, defendant sexually penetrated
her. It lasted about five minutes before T.B., crying, asked him to stop. The
defendant complied.
When T.B. came out of the room upset, H.J. asked her what was wrong and
T.B. told her what happened. Another friend, J.C., testified that T.B. was upset and
crying when he arrived at the house a few minutes afterward. Upon leaving the
residence, and while still upset and crying, T.B. told J.C. that defendant did
something she did not want him to do.
The defense presented no proof at trial.
EXCITED UTTERANCE
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It is this Court’s policy not to reveal the names of minor victims of sexual abuse.
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Defendant objected to the admission of H.J.’s and J.C.’s testimony regarding
T.B.’s statements to them. The state argued that the statements were admissible
under the excited utterance exception to the hearsay rule. The trial court conducted
jury-out hearings with regard to this testimony and found the statements admissible
under Tenn. R. Evid. 803(2).
A.
Tenn. R. Evid. 803(2) excludes from the hearsay rule any “statement relating
to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” In order for a statement to be
admissible under the excited utterance exception to the hearsay rule, the proponent
of the statement must establish: (1) the occurrence of a startling event or condition;
(2) the statement related to that startling event or condition; and (3) the declarant
was under the stress of excitement when the statement was made. See N. Cohen
et al., Tennessee Law of Evidence § 803(2).2 (3d ed. 1995). Furthermore, the
fact that a statement is in response to a question does not necessarily exclude it
from the excited utterance exception. State v. Smith, 857 S.W.2d 1, 9 (Tenn.
1993); see also State v. Reginald L. Edmonds, C.C.A. No. 02C01-9708-CC-00334,
Benton County (Tenn. Crim. App. filed August 25, 1998, at Jackson).
B.
We conclude that the trial court did not err in admitting the victim’s
statements to H.J. and J.C. as excited utterances under Tenn. R. Evid. 803(2). A
twenty-two-year-old man convinced a twelve-year-old girl to have sexual contact
with him. After a short time, she became understandably upset and asked him to
stop. When she left the room crying, H.J. asked her what was wrong. She
immediately replied that she had sex with the defendant. Shortly thereafter, while
still upset and crying, T.B. made a similar statement to J.C.
This sexual activity for T.B., a twelve-year-old girl, certainly qualified as a
startling event; her statements to H.J. and J.C. related to that event; and, even
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assuming the sexual activity occurred early within the 1-1/2 hour period T.B. and the
defendant were alone, she was obviously distressed by the event and was still
under the stress of the event when she told H.J. and J.C. what occurred. The
statements were admissible.
This issue is without merit.
SENTENCING
The trial court applied three enhancing factors and one mitigating factor to
defendant’s conduct. The result was the maximum twelve-year sentence to be
served as a violent offender at 100% in the Department of Correction. Defendant
asserts that the sentence is excessive.
A.
Firstly, we note the pre-sentence report is not a part of the record. We must,
therefore, presume that the trial court’s rulings are supported by the evidence.
State v. Jerry Hilbert Carter, C.C.A. No. 03C01-9603-CC-00102, Greene County
(Tenn. Crim. App. filed March 4, 1997, at Knoxville); see also State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). Nevertheless, we elect to address the
issue.
B.
Our review of the sentence imposed by the trial court is de novo with a
presumption that the determinations of the trial court are correct. Tenn. Code Ann.
§ 40-35-401(d); State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The
presumption of correctness which attaches to the trial court's action is conditioned
upon an 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).
In this instance, it is clear from the record that the trial judge properly
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considered all appropriate sentencing principles and relevant facts and
circumstances. As such, the presumption of correctness attaches to the trial court’s
determinations.
C.
At sentencing, the state presented evidence of defendant’s criminal history,
argued for the application of three enhancing factors, and recommended the
maximum sentence. The defense put on no proof, but argued for the application
of three mitigating factors and requested a mid-range sentence of nine years.
The trial court recited and reviewed all sentencing principles. It then found
that three enhancing factors applied: (1) the defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish
the appropriate range;2 (2) the defendant has a previous history of unwillingness to
comply with the conditions of release in the community; and (3) the felony was
committed while on probation. Tenn. Code Ann. § 40-35-114 (1), (8), (13). We
presume these factors are applicable in the absence of the pre-sentence report.
The trial court refused to find that defendant’s youth caused him to lack
substantial judgment in committing the crime. See Tenn. Code Ann. § 40-35-
113(6). It also found the proof contrary to the assertion that the crime was
committed under such unusual circumstances that it was unlikely that a sustained
intent to violate the law motivated the criminal conduct. See Tenn. Code Ann. § 40-
35-113(11). These findings are supported by the record.
The trial court did, however, find that the defendant’s conduct neither caused
nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). But,
this mitigating factor was not given significant weight. The weight to be given each
factor is left to the sound discretion of the trial court. State v. Moss, 727 S.W.2d
229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App.
1997).
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The trial court recited prior convictions for felony theft, misdemeanor theft,
passing worthless checks, contributing to the delinquency of a minor, disorderly conduct
and traffic offenses.
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D.
In reviewing the sentence de novo with the attached presumption of
correctness, this Court concludes that the trial court properly applied both
enhancement and mitigating factors and properly evaluated the relevant facts and
circumstances in conjunction with the sentencing principles. Accordingly, this court
will not disturb the twelve-year sentence received by the defendant.
CONCLUSION
Based upon the foregoing, we AFFIRM the judgment of the trial court.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
PAUL G. SUMMERS, JUDGE
____________________________
L.T. LAFFERTY, SENIOR JUDGE
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