IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1997 SESSION
FILED
January 13, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9610-CR-00369
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
DONALD P. SPICER, ) JUDGE
)
Appellant. ) (Rape of a child; assault)
FOR THE APPELLANT: FOR THE APPELLEE:
MARVIN E. BALLIN and JOHN KNOX WALKUP
MARK A. MESLER (on appeal only) Attorney General & Reporter
200 Jefferson Ave., Suite 1250
Memphis, TN 38103 KENNETH W. RUCKER
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
JENNIFER S. NICHOLS
Asst. District Attorney General
201 Poplar Ave.
Criminal Justice Center --Third Fl.
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED IN PART;
REVERSED AND DISMISSED IN PART
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted separately for rape of a child and aggravated
sexual battery. The offenses were consolidated for a jury trial at which the defendant was
convicted of rape of a child and misdemeanor assault. After a hearing, the lower court
sentenced him to eleven months, twenty-nine days on the assault conviction, and to
eighteen years incarceration on the rape conviction; he was also fined two thousand five
hundred dollars ($2500) on each offense. The sentences were ordered to run
concurrently. In this appeal as of right, the defendant raises five issues:
1. Whether the evidence is sufficient to support his convictions;
2. Whether the trial court erred in ordering that the offenses be
consolidated for trial;
3. Whether the trial court erred in failing to force the State to respond
further to his motion for a bill of particulars;
4. Whether the trial court erred in finding one of the child victims
competent to testify; and
5. Whether the indictments are fatally defective for failure to allege a
necessary element of the offenses.
Upon our review of the record, we reverse and dismiss the defendant's conviction for
assault. The judgment below is otherwise affirmed.
FACTS
On March 3, 1994, Debra Catherine Stone and her ten-year-old daughter
LAS1 went to the store. While there, LAS told her mother that they needed to talk. After
they returned to the car, according to Stone, LAS told her that, “My dad has been
messing with me.” By “dad,” LAS was referring to her step-father, the defendant.2 Stone
1
It is the policy of this Court to identify minor victims of sex crimes by their initials.
2
Stone and the defendant have since been divorced.
2
subsequently called her other daughter, twelve-year-old ANS, and asked her if the
defendant “had tried to do anything to her.” According to Stone, ANS had responded,
“Yes, ma'am.”
Stone then drove to Terry Jarvis' house. Jarvis was a special deputy and
the defendant's employer. Jarvis told Stone to call “the county” and Stone subsequently
called the sheriff's department. By the time she got home to pick up her other daughter,
officers had arrived and taken the defendant into custody.
Both daughters testified at trial. LAS testified that the defendant “would
come into my bedroom at night while my mom, and me, and my sister were asleep and
he would take his private and put his private into mine.” She further testified that it had
“hurt” and she had told the defendant to stop but he didn't. She testified that it had
happened more than one time, with the most recent occurrence on the Tuesday or
Wednesday of the week in which she told her mother.
ANS testified that the defendant had repeatedly touched her “private areas,”
indicating those to be her chest and genital regions. She testified that the first time had
been shortly after a move. The defendant had entered her bedroom at about eleven or
twelve at night, she testified, and bumped into some moving boxes, waking her. She
testified, “And then he came over there and was trying to feel on me.” The defendant did
not try to rape her, however.
Susan Yvette Neal, a registered nurse who examined both girls on March
7, 1994, testified that the only abnormal finding she had made with respect to ANS was
a vaginal discharge. With respect to LAS, however, she made two abnormal findings:
3
lack of a hymen and “an enlarged introitus.” She testified that both of these findings on
LAS were “consistent with penetration.” She further testified that, “[w]ith this kind of an
enlargement, without recent trauma, then this is something that has happened more than
once.”
The defendant did not testify. However, he called Jarvis who testified that,
while Stone and LAS had been at his house, LAS was “petting the cat and walking
around there like nothing going on. . . . She wasn't upset or nothing, playing with the cat.
I mean, you wouldn't have knowed anything was wrong.” Jarvis' son, Scott Jarvis,
testified that he and his father had gone over to Stone's house that evening to pick up a
vehicle, at Stone's request. While they had been there, Scott testified, he heard Stone
ask ANS whether the defendant had ever touched her, and that ANS had said, “No,
mama, no.”
ANALYSIS
The defendant initially contends that the evidence is insufficient to support
his convictions. We agree with respect to the simple assault and we therefore reverse
that conviction and dismiss the charge. However, the evidence was sufficient to support
the rape conviction and it is therefore affirmed.
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, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). W e 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
4
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).
Under Tennessee law, an assault may be committed in one of three ways:
the defendant “(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury;
or (3) Intentionally or knowingly causes physical contact with another and a reasonable
person would regard the contact as extremely offensive or provocative.” T.C.A.
§ 39-13-101(a) (1991). In this case, the trial court charged the jury3 with only the second
type of assault: that the defendant intentionally or knowingly caused ANS to reasonably
fear imminent bodily injury. However, ANS did not testify that the defendant's actions had
caused her to fear such injury. The child did testify that she had gotten up from her bed
as the defendant was “trying to feel on [her]” and that she then went through several
doorways trying to avoid him, eventually going into her mother's bedroom, but these
actions are as easily explained by disgust, revulsion and/or anger as they are by fear of
imminent bodily injury.
Indeed, the State does not even attempt to argue in its brief that the proof
3
The tra nscript of the trial does not include the trial court's verbatim charge to the jury.
However, a copy of the court's written charge is contained in the record.
5
supports this form of assault. Rather, it argues that “this type of contact between a step-
father and his step-daughter certainly is offensive or provocative to a reasonable person.”
While we certainly agree with this assertion, the jury was not given the opportunity to
convict the defendant of that crime. The proof being insufficient to support the crime of
which the jury did convict the defendant, we have no choice but to reverse the assault
conviction and dismiss that charge.
With respect to LAS, the jury convicted the defendant of rape of a child.
That offense is defined as “the unlawful sexual penetration of a victim by the defendant
or the defendant by a victim, if such victim is less than thirteen (13) years of age.” T.C.A.
§ 39-13-522(a). The victim testified that the defendant “would come into my bedroom at
night while my mom, and me, and my sister were asleep and he would take his private
and put his private into mine.” When asked if she was talking about the defendant's
penis when she said “his private,” she responded yes. When asked if she was talking
about her vagina when she said “my private,” she said yes. She also testified as to the
positions that the defendant's body and hers had been in while the attacks were
occurring. She further testified that “it hurt.” The most recent attack, she testified, had
occurred earlier in the week in which she told her mother what had been happening. 4
The nurse who examined LAS testified that she “did not have a hymen” and
that she “had an enlarged introitus.” Either of these conditions, she testified, was
“consistent with penetration.” Thus, the State adduced medical proof which corroborated
the victim's testimony. In total, the evidence was more than sufficient for the jury to
convict the defendant of rape of a child. This issue is without merit.
4
It was this most recent attack which the State elected to submit to the jury pursuant to our
doctrine r equiring e lection of of fenses . See, e.g., Burlison v . State, 501 S.W .2d 801 (Tenn. 1973).
6
The defendant next contends that the trial court erred when it granted the
State's motion to consolidate the indictments for a single trial. In so ruling, the trial court
stated:
such cases, for judicial economy, should be tried together,
using the same witnesses for the same set of circumstances,
just a different victim, same household, . . . and [the State
says] on one occasion the children were together when he
was in there.
So I feel that under those circumstances that we should join
these indictments and not try them separately . . . .
We respectfully disagree with the trial court's ruling in this regard.
Two or more indictments may be consolidated for trial “if the offenses .
. . could have been joined in a single indictment . . . pursuant to Rule 8 [of the Tennessee
Rules of Criminal Procedure].” T. R. Crim. P. 13(a). Offenses may be joined in a single
indictment under Rule 8 “if the offenses constitute parts of a common scheme or plan or
if they are of the same or similar character.” T. R. Crim. P. 8(b). Once two or more
offenses have been consolidated pursuant to Rule 8(b), however, “the defendant shall
have a right to a severance of the offenses unless the offenses are part of a common
scheme or plan and the evidence of one would be admissible upon the trial of the others.”
T. R. Crim. P. 14(b)(1).
With respect to whether these offenses were part of a common scheme or
plan, we first note a previous holding by this Court that
in order to be