State v. Isaac Milholen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1999 SESSION
FILED
August 3, 1999

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
) C.C.A. No. 02C01-9810-CC-00316
Appellee, )
) Chester County
v. )
) Honorable J. Franklin Murchison, Judge
ISAAC MILHOLEN, )
) (Rape of a Child, Incest)
Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

PATRICK F. MARTIN PAUL G. SUMMERS
Hardee, Martin, Jaynes, & Ivy Attorney General & Reporter
213 East Lafayette Street
Jackson, TN 38301 R. STEPHEN JOBE
(At Trial and On Appeal) Assistant Attorney General
425 Fifth Avenue North
DAVID H. CRICHTON Nashville, TN 37243-0493
111 West Market Street
P. O. Box 651 JERRY G. WOODALL
Bolivar, TN 38008-0651 District Attorney General
(At Trial)
LAWRENCE E. NICOLA
Assistant District Attorney General
225 Martin Luther King Drive
P. O. Box 2825
Jackson, TN 38302-2825

OPINION FILED: _____________________________

AFFIRMED

L. T. LAFFERTY, SENIOR JUDGE
 OPINION

The appellant, Isaac Milholen, referred herein as “the defendant,” appeals as of right

from the judgment of the Madison County Criminal Court. In November of 1997 a Madison

County jury found the defendant guilty of rape of a child and incest. The trial court, at the

conclusion of a sentencing hearing, imposed a sentence of twenty-three years for rape of

child, and eight years, as a Range II multiple offender for incest. The sentences were to

run concurrently in the Department of Correction. The defendant presents seven (7)

appellate issues:

1. Whether the defendant was denied due process in
violation of his Fifth Amendment right under the United
States Constitution, Article 1, Section 8, in that no
charge of range of punishment was provided to the jury
and the jury lacked sufficient information that would
have affected its verdict.

2. Whether the trial court committed error of prejudicial
dimensions by failing to grant a mistrial regarding the
improper testimony of the witness, Tuten, as to other
occasions of sexual abuse.

3. Whether the trial court committed error of prejudicial
dimensions by failing to grant a mistrial on its own
motion when trial counsel brought out on cross-
examination the victim had told her grandmother the
defendant had raped her.

4. Whether the trial court committed error of prejudicial
dimensions by admitting medical proof of Dr. Ramer
because he was not sufficiently qualified as an expert
on pelvic examinations of children.

5. Whether the trial court committed error of prejudicial
dimensions by ignoring the jury’s announcement of
being unable to reach a verdict and also sua sponte
asking the jury if further deliberations were warranted.

6. Whether the trial court committed error of prejudicial
dimensions by failing to dismiss the defendant’s
convictions as the evidence is insufficient as a matter of
law to sustain a conviction for the offenses of child rape
and incest.

7. Whether the trial court committed error of prejudicial
dimensions by failing to grant defendant’s motion for a
new trial.

After a review of the entire record, briefs of the parties, and the applicable law, we

affirm the trial court’s judgment.

2
 FACTUAL BACKGROUND

T.M.,1 age 11, testified, that in November 1996, she was 10 years old and lived with

her father and stepmother in Miflin, Chester County, Tennessee. She attended East

Chester Elementary School, but now lives in Henderson County with her grandmother.

T.M. testified she was not in school on Friday, November 15, 1996, but played with her

friend, Tina, most of the day. Her father, who worked in Jackson, called and told T.M. he

was going to pick her up. When they got home, TM made some tea. Her father went into

the bedroom and took a shower. TM returned to the living room and watched “Standby the

Bell” on TV. While she was watching TV, her father came in the living room with a towel

on. Her father put an x-rated movie in the VCR. TM went into the kitchen for more tea.

When TM returned to the living room, her father came over to her while she was on the

love seat. He sat down on the floor and told TM to get on the floor. When she did so, her

father took her blue jeans, purple shirt, and underpants off. Her father took off the towel

and got on top of TM. While on her back, her father put his privates in her vagina. He kept

pushing it in and when he got off, her vagina was wet. When she got up, TM informed her

father she was going to take a shower and her father wiped himself off with the towel. TM

testified her father told her not to tell, or he would go to jail.

The next day, TM went to her grandmother’s, Susan Daws’s, home. That day TM

played with her sister, Crystal. That night TM’s mother, Jackie Smith, came by the house.

TM testified she talked with her mother in the bedroom. TM was wearing a nightgown and

told her mother what happened. TM showed her mother her vagina, and both began

crying. TM returned to bed and fell asleep. That Sunday, TM did not feel like going to

church, although her sister Crystal went. TM told her grandmother what happened and her

grandmother called the police. That afternoon, TM, Crystal, and her grandmother went to

the Sheriff’s Department. There TM told a lady what had happened. On the following

Monday, TM was examined by a doctor. TM acknowledged she is mad at her father, and

1
It is the policy of this Court not to identify minor victims of sexual abuse. The victim
will be referred to by her initials.

3
he is the only one who had sex with her. During cross-examination, TM testified she

spends every other weekend with her grandmother and denied she told her father that she

wanted custody changed to her grandmother. TM did not recall attending a parent/teacher

conference on the previous Friday with her father and stepmother, Serena. TM testified,

that after her mother left, she did not tell her grandmother what happened, although her

grandmother asked her why she was crying.

Jackie Smith, mother of TM, testified on November 16, 1996 (Saturday), she

stopped by her mother’s home. It was about 10:00 to 11:00 p.m.. Her daughter, TM, was

crying, but refused to talk around her grandmother and others, so Ms. Smith took her

daughter into the bedroom. TM raised up her nightgown and showed Ms. Smith her

vagina, which was red. The next day, Ms. Smith saw the defendant, and he said “that she

wasn’t going to get away with this” (meaning that Ms. Smith’s mother was not going to keep

TM). During cross-examination, Ms. Smith testified her mother obtained custody of TM at

age two, but at age eight, the defendant obtained custody. In this time span, Ms. Smith

has seen TM only three times. Although she was upset, Ms. Smith testified she did not tell

her mother about the conversation with TM, because she was not “thinking straight.”

Jerry Tuten, Department of Children’s Services, testified she interviewed TM on

November 17, 1996, regarding a complaint of sexual abuse. Ms. Tuten testified she

referred the case to Department of Children’s Services Investigator, Bill Austin. During the

interview with TM, Mrs. Susan Daws, TM’s grandmother, assisted TM in making her

statement by helping with dates and custody questions. Ms. Tuten testified that she was

reluctant to send TM to the emergency room for an examination “due to a weekend doctor

[who] may not be experienced or willing to document the abuse.”

William S. Austin, Investigator for the Department of Children’s Services, testified

he interviewed TM on November 18, 1996. TM was referred to Dr. Warren Ramer, Jr., in

Lexington, Tennessee, for an examination. Mr. Austin described TM as depressive and

embarrassed.

4
 Mrs. Susan Daws, TM’s grandmother, testified she has had custody of TM since

November 1996. Prior to that time, the defendant had custody. Mrs. Daws had visitation

rights every other weekend. On Saturday, November 16, 1996, TM arrived and was to stay

until Sunday. Mrs. Daws testified that her daughter, Jackie Smith, arrived Saturday night,

while TM was in bed. TM came out of the bedroom, and both went back into the bedroom.

The next morning Crystal went to Sunday School, but TM did not want to go, which was

unusual. TM told her grandmother what had happened, and Mrs. Daws called the Sheriff’s

Department. Mrs. Daws took TM to the Sheriff’s Department, where they talked to a lady.

On Monday, she and TM talked to Bill Austin, and Mrs. Daws took TM to a doctor. During

cross-examination, Mrs. Daws testified that when TM arrived that Saturday, she appeared

normal. TM and Crystal played most of the day. Mrs. Daws denied she called her

daughter, Jackie Smith, that Saturday night. Mrs. Daws testified that when she saw TM

and her daughter crying, she knew something was wrong but did not question them,

thinking it was personal.

Dr. Warren Ramer, Jr., family physician for twenty-seven years, testified that he had

a lot of pediatric and obstetrics experience. On November 18, 1996, Dr. Ramer conducted

a pelvic examination of TM at the request of the Department of Children’s Services. Dr.

Ramer, using an adult speculum, found TM’s vaginal orifice very large, which is highly

irregular in a 10-year-old. TM’s hymen was dilated. Dr. Ramer believed TM had been

sexually penetrated. During his examination, Dr. Ramer did not see any tears, bruises, or

evidence of bleeding in the vaginal area.

On November 22, 1996, Mr. Jack Wilson, Criminal Investigator for the District

Attorney General’s Office, testified he interviewed the defendant at the request of the

Department of Human Services. The defendant had agreed to come in and discuss the

allegations. Investigator Wilson advised the defendant that he was not under arrest or in

custody and under any obligation to answer any questions. Investigator Wilson advised

the defendant that there might be a question about whether his daughter was pregnant.

The defendant responded, “I hope she is pregnant because I had a vasectomy in 1988.”

5
The defendant denied he raped his daughter.

Mrs. Serena Milholen, wife of the defendant, testified that when she got home from

work, TM wanted to go out to eat. TM was dressed to go out. Mrs. Milholen testified she

and her husband, with TM, went to a parent/teacher conference, and then ate out. TM

appeared normal and made no complaints about the event. After they ate, Mrs. Milholen

and her husband took TM to her grandmother’s for the weekend. Mrs. Milholen denied that

TM went to her grandmother’s on Saturday and denied she and her husband had x-rated

movies in their home.

Ms. Diane Ivory, a teacher at Chester County Middle School, testified she attended

a parent/teacher conference with TM’s father and his wife. TM was present at the

conference. They talked for about twenty minutes, and the defendant appeared normal

and without any indication of nervousness.

Crystal Milholen, age 12, testified she recalled her sister, TM, moving back in her

grandmother’s home and going to the Sheriff’s Department. Crystal recalled her sister

came over Friday night and described her sister as not being happy or acting like herself.

That Sunday, Crystal testified she and TM went to church, but then stated TM and her

grandmother got her from church. Crystal did not recall seeing her mother on Saturday

night. TM started crying on Sunday, when it was time for her father to pick her up.

The defendant elected not to testify.

LEGAL ANALYSIS

PART A

SUFFICIENCY OF EVIDENCE

The defendant contends that, as a matter of law, the evidence does not support his

6
convictions. The State strongly disagrees.

When reviewing a trial court’s judgment, the appellate court will not disturb a verdict

of guilty unless the facts in the record and inferences which may be drawn from it are

insufficient as a matter of law for a rational trier of fact to find the defendant guilty beyond

a reasonable doubt. Tenn. R. App. P. 13 (e); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Initially, a defendant

is cloaked with the presumption of innocence. Tuggle, 639 S.W.2d at 914. However, a

jury conviction removes the presumption of innocence and replaces it with one of guilt, so

that on appeal a convicted defendant has the burden of demonstrating that the evidence

is insufficient. Id. In determining the sufficiency of evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On

appeal, the State is entitled to the strongest legitimate view of the evidence and all

legitimate or reasonable inferences which may be drawn therefrom. State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the conviction if the

evidence viewed under these standards was sufficient for any rational trier of fact to have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes,

875 S.W.2d 253, 259 (Tenn. 1994). This rule is applicable to findings of guilt predicated

upon the direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990).

In order to obtain a conviction for rape of a child and incest, the State is required to

prove that the defendant had unlawful sexual penetration of a victim, who is less than

thirteen (13) years of age. Tenn. Code Ann. § 39-13-522. For the offense of incest, the

State must prove the defendant had sexual penetration with a person, knowing such

person was the person’s child. Tenn. Code Ann. § 39-15-302. A person acts knowingly

with respect to result of the person’s conduct when the person is aware that the conduct

is reasonably certain to cause the result. Tenn. Code Ann. § 39-11-302(b).

7
 The proof at trial established that the child, TM, was picked up by her father on

November 15, 1996, and taken home. After taking a shower, the defendant removed his

daughter’s clothes and engaged in sexual penetration of his daughter. On Saturday night,

TM told her mother what had happened, and the mother, in examining her daughter, found

her vagina red.2 The child’s version was corroborated by the testimony of Dr. Ramer, who

found the child’s vaginal orifice as large as an adult’s, which is unusual in a 10-year-old

child. Dr. Ramer’s medical opinion was that the child had been sexually penetrated. The

convicting jury was entitled to give what weight they wished regarding the defendant’s

statement to Investigator Wilson about his daughter’s possible pregnancy and his

vasectomy. Any inconsistencies in the testimony of the State’s witnesses were a matter

for the jury to resolve. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Accordingly, we find the evidence more than sufficient to support the defendant’s

convictions for rape of a child and incest. This issue is without merit.

PART B

RANGE OF PUNISHMENT

The defendant contends that he was denied due process in that no charge on the

range of punishment was provided to the jury. The defendant argues that this failure was

so serious so as to deprive him of the assistance of effective counsel. The State contends

the defendant did not request that the jury be charged on the applicable range of

punishment, and, thus, the defendant is actually challenging the effectiveness of trial

counsel’s performance.

The record clearly establishes that the defendant did not file a request for the jury

to be informed of the range of punishment for rape of a child, incest, or any included

offenses. Pursuant to the Tennessee Criminal Sentencing Reform Act of 1989, either the

defendant or the State could request the trial court to charge the jury on the range of

2
It is puzzling and baffling as to why the natural mother did not tell her mother of
what she had seen, nor insist on taking the child to doctor, nor tell her mother what the
child had said.

8
punishment for a criminal offense:

In all contested criminal cases, except for capital crimes which
are governed by the procedures contained in Tenn. Code Ann.
§ 39-13-204 and 39-13-205, upon the motion of either party,
filed with the court prior to the selection of the jury, the court
shall charge the possible penalties for the offense charged and
all lesser included offenses. Tenn. Code Ann. § 40-35-
201(b)(1) (Repealed).

If trial counsel made errors, it is the burden of the defendant to establish counsel

was not functioning as guaranteed under the Sixth Amendment, and the deficient

representation prejudiced the defendant resulting in a failure to produce a reliable result.

Strickland v. Washington, 466 U.S. 667, 687, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984);

Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). The defendant has presented no

evidence whatsoever as to why trial counsel elected not to request a range of punishment

instruction. Thus, when reviewing trial counsel’s actions, this Court will not use the benefit

of hindsight to second guess trial strategy and to criticize trial counsel’s tactics. State v.

Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). We find there is no merit to this issue.

PART C

FAILURE TO GRANT MISTRIAL

The defendant contends he is entitled to a new trial when a State’s witness indicated

that the alleged sexual misconduct was but one in a series of such instances. Thus, the

trial court erred in refusing to grant a mistrial. The State argues the trial court was not in

error for failing to grant a mistrial.

This alleged error occurred during the testimony of Jerry Tuten, Investigator for the

Department of Children’s Services. When Ms. Tuten interviewed TM on Sunday,

November 17, 1996, she elected not to request a medical examination of the victim. Ms.

Tuten expressed her concerns over weekend doctors in an emergency room not

substantiating sexual abuse cases, so she referred the case to a fellow investigator, Bill

Austin. In redirect examination, the State attempted to elicit from Ms. Tuten why TM could

9
wait one day to see a regular physician:

Q. And the incident of child sexual abuse -- you were able
to ascertain from talking to [TM] where this was
supposed to have occurred; is that correct?

A. Yes, sir. She made a statement about that.

Q. And what was the date?

Mr. Crichton: Objection, Your Honor. That calls for hearsay
from [TM].

Mr. Nicola: Your Honor, this is in response to what--

The Court: What was your question?

Mr. Nicola: What date that [TM] gave as the date of the
incident. He got into it about when it occurred and why they
waited to see the doctor, and I believe that goes into her
judgment of why she testified it was not a medical emergency
because it hadn’t happened that day, and that’s why--

The Court: Objection overruled. I think in view of what’s come
up here, it might be significant as to what she understood
about the date of the incident.

Q. When did you understand the date of the incident to
be?

A. She alleged that the most recent incident was on Friday
the 15th -- Friday afternoon.

Mr. Crichton: Your Honor, may we approach.

Prior to the motion for a mistrial, the trial court expressed its concern in that it

wished the witness had not said “the most recent incident,” but found it was not the State’s

fault nor the witness’s. The witness had gone through an extensive cross-examination

about the lack of medical attention, and in the witness’s mind, the reason for the non-

examination had to do with the history of what happened. The trial court denied the

defendant’s motion for a mistrial and offered a curative instruction to the jury. Reluctantly,

the defendant agreed to the curative instruction. The trial court gave a curative instruction

to the jury, “that there is only one incident involved in this case, and that is the alleged

incident of November the 15th, and there is only one incident that’s charged against Mr.

Milholen. I want to make that clear to you.”

10
 First, we note the indictment alleges only one incident of sexual penetration,

occurring on November 15, 1996. Thus, we are not confronted with accusations of sexual

misconduct within a time period. It is well established in Tennessee that there is no sex

crime’s exception to the general rule that evidence of other crimes is admissible only if it

is relevant to an issue other than the defendant’s propensity to commit a crime. State v.

Dutton, 896 S.W.2d 114, 117 (Tenn. 1995); State v. Rickman, 876 S.W.2d 824, 827-28

(Tenn. 1994).

The decision of whether to grant a mistrial is within the sound discretion of the trial

court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will

not disturb such a ruling absent a finding of an abuse of discretion. State v. Adkins, 767

S.W.2d 642, 644 (Tenn. 1990); State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.

1996). Furthermore, we presume that the jury followed the trial court’s explicit instruction

not to consider the inappropriate testimony. State v. Smith, 893 S.W.2d 908, 923 (Tenn.

1994). The State, in an attempt to clarify Ms. Tuten’s testimony as to her decision not to

request a medical examination of TM, did not act in bad faith or purposely solicit the

witness’s response. In light of the limited nature of the offending testimony and the trial

court’s prompt curative instruction, we find that the trial court did not abuse its discretion

in refusing to grant a mistrial. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App.

1993); State v. Terry Dean Sneed, No. 03C01-9702-CR-00076 (Tenn. Crim. App.,

Knoxville, November 5, 1998). There is no merit to this issue.

PART D

TRIAL COURT’S FAILURE TO GRANT MISTRIAL SUA SPONTE

The defendant contends the trial court’s concerns over the testimony that TM had

told her grandmother the defendant had raped her created a manifest necessity for the trial

court on its own motion to declare a mistrial. The State counters that the defendant

participated in the alleged error and is not entitled to relief.

11
 At the conclusion of the State’s redirect examination of Mrs. Susan Daws, TM’s

grandmother, defense counsel, in recross examination, asked the witness a number of

questions surrounding TM’s visit to a hospital emergency room on a prior occasion:

Q. Now, was [TM] with you when you took her to Dr.
Bratten to the Emergency Room? Did you take her?

A. Yes.

Q. That was for strep throat?

A. Right. She was smaller.

Q. So you took [TM] to the Emergency Room for strep
throat, but you don’t take her to the Emergency Room
after an allegation of rape by her own father? Would
that be fair to say?

A. Well, this was on a Sunday, and I didn’t figure a doctor
would -- I thought she was supposed to see a regular
doctor about something like that.

Q. How many kids do you have, Ms. Daws?

A. I have three grown kids.

Q. Three grown kids? And you don’t think -- you don’t
think -- you were going to wait to go to a regular doctor
after your own granddaughter had made an allegation
of rape by her own father -- is that what your testimony
is? You would rather her see a regular doctor?

At this point, the trial court requested the attorneys to approach the bench. It is

clear the trial court was concerned that defense counsel solicited testimony that the child

had told her grandmother about the rape allegation. The trial court suggested that defense

counsel abandon any further questions along that line, which counsel agreed.

The defendant cites State v. Carter, 890 S.W.2d 449 (Tenn. Crim. App. 1994) as

authority. In Carter, the trial court was faced with a series of complex problems. This was

a death penalty case in which the jury had been sequestered. After hearing some

testimony, the State suddenly found a newly discovered witness, Sneed, who was in the

Shelby County Jail. Compounding the problem was another witness, Carrick, who had

possession of a .380 caliber pistol, which was the murder weapon. Carter was represented

by the Public Defender, whose office also represented both Sneed and Carrick. Defense

12
counsel for Carter found newly discovered alibi witnesses. To further exasperate

problems, a bomb threat occurred to the building. As a result, the trial court, sua sponte,

declared a mistrial in the interest of justice.

The decision by a trial court to grant a mistrial, sua sponte, lies within the sound

discretion of the trial judge. State v. Seay, 945 S.W.2d 755, 764 (Tenn. Crim. App.), per

app. denied (Tenn. 1996). The trial court’s decision will not be overturned on appeal unless

there was an abuse of discretion. Id. A mistrial is only appropriate in a criminal case

where there is a “manifest necessity.” Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim.

App. 1977), cert. denied (Tenn. 1978). In determining when a trial judge should declare

a mistrial, sua sponte, no abstract formula can be mechanically applied, and all the facts

and circumstances should be taken into consideration. Jones v. State, 218 Tenn. 378, 403

S.W.2d 750, 754 (1966).

Applying the foregoing discussion to the facts in this case, we are convinced that

the trial court was not in error for failing to declare a mistrial on its own motion. First, we

note that the trial court cautioned defense counsel about the possibility of exploring further

the statements made by TM to her grandmother. Counsel agreed to withdraw this line of

questioning. Second, TM testified she told both her mother and grandmother what had

happened between her and the defendant. Although the exact statements made by TM

were not related through these State witnesses, the jury was aware TM had told her

mother and grandmother about the event. We find no merit to this issue.

PART E

MEDICAL PROOF

The defendant contends that Dr. Warren Ramer, Jr., was not sufficiently qualified

to testify as an expert on pelvic examinations, and, thus his testimony was erroneously

admitted. The State counters that this issue has been waived, in that the defendant did

not object to this testimony.

13
 Tennessee Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise.

In permitting expert testimony, the qualifications of expert witnesses, and the

relevancy and competencies of expert testimony are matters that lie within the sound

discretion of the trial court. A trial court’s decision on these matters will not be reversed

upon an appeal absent a clear showing of abuse of discretion. State v. Davis, 872 S.W.2d

950, 955 (Tenn. Crim. App.), per. app. denied (Tenn. 1995); State v. Rhodes, 739 S.W.2d

6, 13, (Tenn. Crim. App.), per app. denied (Tenn. 1987). The record establishes that the

defendant did not object to the medical testimony of Dr. Ramer, but did raise this issue in

his motion for a new trial. Ordinarily, failure to make a contemporaneous objection waives

consideration by this Court of the issue on appeal. See Tenn. R. App. P. 36(a); Teague

v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988), per. app. denied (Tenn. 1989);

State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.), per. app. denied (Tenn. 1988).

Even if this issue was not waived, we fail to find from our review of the record that the

defendant was prejudiced by the admission of Dr. Ramer’s testimony. It is clear from the

record that Dr. Ramer had a long history of family practice with much experience in

pediatrics and obstetrics. Although Dr. Ramer has done many pelvic examinations of

patients, he admitted he had not done many on children. Dr. Ramer agreed he had not

examined TM’s pelvic area before, but it is obvious Dr. Ramer was surprised to find TM’s

vaginal orifice the size of an adult’s. There is no merit to this issue.

PART F

JURY’S ABILITY TO REACH A VERDICT

The defendant argues that the trial court unduly protracted the jury’s deliberations

by sua sponte inquiring of the jury if they believed further deliberations would produce a

verdict. The State counters that the trial court did not abuse its discretion in inquiring if the

14
jury needed further time to deliberate on its verdict.

The record establishes that the jury instructions were completed by the trial court

at approximately 10:16 a.m., and the jury retired to consider their verdict at approximately

10:17 a.m. At 4:10 p.m., the jury reported they had a question. The exact question

submitted by the jury is not contained in the record. The following colloquy occurred

between the trial court and the jury:

The Court: All right. We have the jury here. Do you think that
further deliberations will -- can result in a verdict?

How about you? You are a military man, Mr. Kerstter?

Mr. Kerstter: At this point in time, no.

The Court: You have a doubt that you will ever reach a verdict
in this case. Do you doubt this?

Mr. Kerstter: Yes, your Honor.

The Court: Does anybody else want to come out on comment
on that? Does anybody else want to give their opinion?

The question is -- just “yes” or “no” -- do you think further
deliberations will result in a unanimous verdict?

A juror: I think if we work a little longer, we will be able to
reach a verdict.

The Court: Good enough then.

A juror: I do too.

The Court: Go back and work some more on it. I wish I could
give you some more facts, but I just can’t do it.

All right. Go back and work some more on this case.

The jury retired at 4:14 p.m. to continue deliberations and at approximately 4:36

p.m., they reported their verdict.

We will infer the jury’s question, at 4:10 p.m., was they may have been unable to

reach a verdict. When a jury’s deliberations have not produced a verdict, and it returns to

the courtroom and so reports, the trial court may inquire as to the progress, and the jury

may be asked whether it believes it might reach a verdict after further deliberations. If the

trial court feels further deliberations might be productive, it may give supplemental

15
instructions to assist the jury in its deliberations. Kersey v. State, 525 S.W.2d 139, 141

(Tenn. 1975). Unless the trial court’s actions cause a jury to reach a verdict in such

manners that it is patently not their free and untrammeled verdict, a new trial will not be

granted. Rushing v. State, 565 S.W.2d 893, 896 (Tenn. Crim. App.), cert. denied (Tenn.

1978); State v. Howard Brown, No. 03C01-9505-CR-00139 (Tenn. Crim. App., Knoxville,

December 11, 1997). Although the defendant complains that the jury reached a verdict

within twenty-two additional minutes, this fact in and of itself does not constitute a ground

to attack the validity of the convictions. State v. Caldwell, 656 S.W.2d 894, 897 (Tenn.

Crim. App. 1983). We find the trial court did not abuse its sound discretion in questioning

the jury as to the need for further deliberations. This issue has no merit.

PART G

FAILURE OF TRIAL COURT TO GRANT A NEW TRIAL

The defendant contends the trial court failed to properly weigh the evidence and

grant a new trial pursuant to Rule 33(f), Tenn. R. Crim. P. The State counters that the

defendant has waived this issue for failure to cite in the record or articulate any specific

reason why the evidence is insufficient to support his convictions.

The defendant has not submitted a transcript, for the purpose of an appeal, of the

hearing on the merits of the motion for a new trial submitted to the trial court. Rule 33(f),

Tenn. R. Crim. P., states that “the trial court may grant a new trial following a verdict of

guilty if it disagrees with the jury about the weight of the evidence.” Thus, the trial court,

acting as the thirteenth juror, must weigh the evidence and grant a new trial if the evidence

preponderates against the weight of the verdict. State v. Carter, 890 S.W.2d 119, 122

(Tenn. 1995). When a trial court overrules a motion for a new trial, this Court may

presume that the trial court has served as the thirteenth juror and approved the jury’s

verdict. State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App. 1996). From our review

of the entire record, the evidence fully supports the defendant’s convictions.

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 The trial court’s judgment is affirmed.

________________________________________
L. T. LAFFERTY, SENIOR JUDGE

CONCUR:

___________________________________
JOSEPH M. TIPTON, JUDGE

___________________________________
DAVID G. HAYES, JUDGE

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