State v. Gray ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1997 December 1, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9603-CC-00104
)
Appellee, )
)
) MCMINN COUNTY
VS. )
) HON. R. STEVEN BEBB
RAYMOND GRAY, ) JUDGE
)
Appe llant. ) (Direct Ap peal - Agg ravated Sexu al
) Battery; Rape of a Child)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS E. KIMBALL JOHN KNOX WALKUP
110 ½ Washington Avenue, N.E. Attorney General and Reporter
Athens, TN 37303
ROB IN L. HA RRIS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
JERRY N. ESTES
District Attorney General
SANDRA DONAGHY
Assistant District Attorney
P. O. Box 647
Athens, TN 37303
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
A McMinn County Criminal Court jury found Appellant Raymond Gray g uilty
of aggravated sexual battery and rape of a child. Appellant was sentenced as a
Range one standard offender to ten years for the aggravated sexua l battery
conviction and to eighteen years for the rape conviction. In this appeal, Appellant
presents the following issues:
(1) whether the trial court erred in refusing to sever the
two cou nts of the in dictme nt;
(2) whether the evide nce pre sented was su fficient to
support the verdict of the jury bey ond a re asona ble dou bt;
(3) wheth er the tr ial cou rt erred in prohibiting the defense
from calling witness Tommy Buckner; and
(4) whether the sentence imposed is excessive.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
As accredited by the jury’s verdict, the proof shows that on July 24, 1993
Appellant and Imogene Stansberry sexually assaulted Ms. Stansberry’s niece,
N.B.1 , age twelve. The victim testified that she was sitting in the living room while
Appellant and Ms. Stansberry were watching “dirty movie s.” Appellant and Ms.
Stansberry forced N.B. to watch the movie with them. After the movie ended, N.B.
testified that “they just started, they just, Imogene told me to take off my clothes
and I said no, and so she took off my clothes for me, and then she just started
1
Pursuant to the policy of this Court, the minor victim of sexual abuse in this case will be referred
to by her initials rather than her full name.
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touching me and I told her to stop and she wouldn’t.” While this was occurring,
the Appellant held N.B.’s arm to keep her from escaping. The Appellant then
began to fondle the victim. “[He] used his hands and touch ed m y brea sts an d in
between my leg, and then he used his tongu e and touch ed m y brea sts an d in
between my legs.” Ms. Stansberry held the victim down during the assault by
Appe llant. After the assault, the victim was too frightened to tell anyone what had
happened, because Ms. Stansberry and the Appellant threatened to hurt her
family if she told.
On July 31, 19 93, Ms. S tansberry telepho ned the victim and told her to
come over or els e she w ould be in trouble. The victim went to Appellant and Ms.
Stans berry’s house becau se she was afraid Ms. Stansberry would hurt her
parents. The victim testified that while she wa s in their residence, M s. Stansberry
held her down and Appellant again licked the victim’s breasts and in between her
legs. According to the victim, during this assault, the Appellant and Ms.
Stansberry were again watching dirty movies about gay men and women.
Ms. Stansberry testified that the victim asked her ab out se x and h ow it
feels for “a man to be up inside you.” According to Ms. Stansberry, she, the
Appe llant, and N.B. played strip poker and “Fantasy”. During the Fantasy game,
both N.B. and Ms. Stansberry had oral sex with App ellant. Ms. Stansb erry also
testified to touching N.B.’s breasts and admitted that she and Appellant told the
victim not to tell anyone and threatened that “there would be no place that she
could ev er run an d hide.”
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Ms. Stansberry also testified to a second incident in July, during which she
the Appellant and N.B. watched a movie in which a “bunch of men and women
[were] having sex, and then it’s women having sex together.” Ms. Stansberry
testified that on that occasion she touched N.B.’s breasts and that Appellant
“more or less run his tongu e up an d down the child’s va gina.”
II. SEVERANCE OF OFFENSES
Appellant argues that the trial court erred in denying his motion for a
severance of the offenses invo lved in this case. Count one of the indictment
charged Appellant with aggravated sexual battery of N.B. on July 31, 1993;
Count two charged aggravated sexual battery on July 24, 1993: and Count three
charged rape of a child, N.B., on July 31, 1993.2
Tennessee Rules of Criminal Procedure Rules 14(b)(1) provides:
(b) Severance of offenses
(1) If two or more offenses have been joined or
consolidated for trial pursuant to Rule 8(b), the
defendant shall h ave a right to severance of the
offenses unless the offenses are part of a common
scheme or plan an d the evidence of one would have
been admissible upon the trial of the others.
In State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993) this
Court held that “common scheme or plan” under Rule 14(b)(1) can be broken into
three subcategories: 1) modis operandi or distinctive signature; 2) continuing plan
or conspiracy; or 3) same transaction or occurrence. In this case, we find
evidence of a distinctive signature. In both incidents, Appellant and Ms.
2
Accor ding to the S tate’s brief, the trial judge m erged c ounts tw o and thr ee of the indictm ent.
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Stansberry forced N.B. to watch pornographic movies and them alternated
holding the child down and sexua lly assaulting her. After each assault, Appellant
and Ms. Stansberry repeated the same threat to N.B., threatening to harm her
family if she revealed their crime.
As to the secon d prong of 14(b)(1 ), in this record , Appella nt chose not to
put on proof of his defense at the severance hearing . Therefore, upon
Appe llant’s not guilty plea, the State was required to prove both the identity and
the intent o f Appe llant as the pe rpetra tor. Th is burd en up on the State c learly
would make proof of either crime relevant in the State’s case-in-chief upon the
trial of the other. Therefore, the seco nd pro ng of R ule 14(b)(1) was met, and the
severance of offenses was not mandatory. There is no proof of abuse of
discretion in the trial court’s refu sal to gran t a severa nce, th erefor e this iss ue is
without m erit.
III. SUFFICIENCY OF THE EVIDENCE
Appellant alleges that the State’s proof at trial was insufficient to support
the jury’s verdict. When an accused challenges the sufficiency of the convicting
evidence, this Court must review the record to determine if the proof adduced at
the trial is sufficient to support the findings by the trier of fact of guilt beyond a
reaso nable doubt. T .R.A.P . 13 (e). This C ourt doe s not rew eigh or re -evaluate
the evidenc e and w e are req uired to afford the State the strongest legitimate view
of the proo f containe d in the rec ord as w ell as all reas onable and legitim ate
inferences which m ay be dra wn there from. State v. Cabbage, 571 S.W.2d 832,
835 (Ten n. 1978).
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Appellant argues that Ms. Stansberry’s evidence is tainted by her
“incredibly desperate” plea agreement. However, the weight and credibility of a
witness’ te stimon y are ma tters entrus ted exclus ively to the jury a s triers of fact.
State v. Wright, 836 S.W.2d 130, 134 (Tenn. Crim. App. 19 92); State v. She ffield,
676 S.W.2d 542, 547 (Tenn. 1984). Ms. Stansberry was throughly cross-
examined as to the nature of her plea agreement with the State. The jury was
informed as to any effect this plea agreement might have had on her testimo ny.
Any weight the jury m ay have place d upo n her te stimo ny was entirely within the
province of their role a s trier of fact.
Appellant further argues that he cannot be convic ted on the ba sis of N .B.’s
testimony, alleging that she was an accomplice and that a conviction cannot
stand on the basis of uncorrobo rated accom plice testimony. Appellant is correct
in his conte ntion that a child who is incapable of consent can still be an
accomplice. See Henley v. State, 489 S.W.2d 53 (Tenn. Crim. App. 1972);
Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (Tenn. 1964). However, the
testimony accre dited b y the jury in this tria l is that th is victim did n ot participa te
volunta rily in the crime, therefore she could not have been an accomplice.
Further, an accomplice is “ a person who knowingly, voluntarily and with common
intent with the principle offender unites with him in the commission of the crim e.”
W harton ’s Criminal Evidence (12th Ed.) § 448 at pg.229 The test of whether
someone is an ac com plice is whether that person could be indicted for the same
offense as the princip le. Th e prec eden t cited in Appe llant’s b rief all involved
crimes for whic h the vic tim co uld be found guilty if the victim performed the acts
volunta rily - ie. incest, fellatio. Here, the victim could not be found guilty of raping
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herse lf even if the jury had found that she participated voluntarily, therefore she
could not be an ac com plice in this crime. Accordingly, this issue is without m erit.
IV. DISALLOWANCE OF A WITNESS
Appellant argues that the trial court erred in granting the State’s motion to
disallow the testimony of defense witness T.B. Appellant claimed that T.B., the
father of the victim, would have testified that he had caught N.B. in lies. However,
Appellant failed to make a proffer of testimony regarding N.B.’s alleged lies.
Therefore, this issue ca nnot be reviewed . See State v. Hutchinson, 898 S.W.2d
161, 172 (T enn. 1994 ).
V. PROPRIETY OF THE SENTENCE
Appellant contends that the trial court improperly imposed a sentence of
eighteen years for the rape of a ch ild and ten years for a ggravated se xual battery.
When a defe ndan t com plains 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 appea ling party. T .C.A. § 40-
35-401(d) Senten cing Co mm ission C omm ents. This pre sum ption, h owev er, 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. 199 1).
The trial court found Appellant’s lack of a prior record to be a mitigating
factor, and found several enhancing factors. The court found that 1) this crime
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was com mitted in such a way th at the p otentia l for bod ily injury to the victim was
great; 2) the defendant abused a position of trust; and 3) this crime involved
exceptional cruelty. Because the trial cour t failed to set out which enhancement
factor applied to which crime, we review Appellant’s sentence de novo. State v.
Ashby, 823 S.W .2d 166 (Te nn. 1991).
A. LENGTH OF SENTENCE
1) Rap e of a C hild
Appellant challenges the trial court’s finding that this crime was committed
in a manner in which the potential for bodily injury was great. Appellant argues
that this finding was not supported by the evidence and that the trial court found
this factor based upon other crime s unrelate d to any a cts of the d efenda nt. 3
Howeve r, the record supports the finding of this fa ctor. A ccord ing to th e victim ’s
testimony as accredited by the jury, while the Appella nt perform ed the se xual acts
upon the victim she wa s held down by Ms. Stans berry. The situation involved two
adults holdin g dow n and enga ging in sexua l acts with a strugg ling child, a
situation inhere ntly rife with the d anger o f injury. In fact, Ms. Stansberry testified
that at one point A ppellant hurt N.B . while performing a sexual act on her.
Second Appellant challenges the trial court’s finding that “the use of
multip le actors to acc omp lish the crime of rape of a ch ild is allowing th e victim to
be treated with exceptional cruelty during the commission of the
3
The trial court stated: “ I see this case in that the crime was committed under circumstances
under which the potential for bodily injury to a victim was great. I cannot imagine a situation in which two
people are involved with the rape of a child in which the potential for bodily injury is not great. I mean I
keep thinking o f mur dered c hildren an d dead children w ho can not testify aga inst their abu sers, an d so to
me th is is an enh ancing o r aggrav ating facto r.”
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offense.”Appellant contends that this finding is tantamount to finding that the
youth of the victim and the presence of a co-defendant aggravated the crime of
rape of a child. The enhancement factor of “exceptional cruelty” requires a finding
of cruelty over and a bove that inherently attendant to the crim e. State v. Emb ry,
915 S.W.2d 451 (Tenn. Crim . App. 1 995). In this crime, the victim was subjected
to the cru elty of ha ving un wante d sex a cts pe rform ed up on he r while another
adult watched, she was threatened into watching pornographic movies, and she
and her family threatened if she reported the crime; certainly none of these
undo ubted ly cruel acts upon the victim are intrinsic to the crime of rape of a child.
Further, though the trial cou rt did not so find, enha nceme nt factor (7),
dealing with the comm ission of the c rime fo r pleas ure or g ratificatio n clea rly
applies to the child rape conviction. Though this enhancement factor cannot
apply to sexual battery, since it is intrinsic to that crime, this factor do es app ly to
rape. State v. Adams, 864 S.W.2d 31 (Tenn. 1993); State v. Hoyt, 928 S.W.2d
935 (Tenn. Crim. App. 1995). Here, the evidence showed that Appellant and h is
girlfriend watched pornographic movies and then fondled and raped N.B. for their
sexual pleasure.
2) Aggravated Sexu al Battery
For the reasons stated above in the disc ussion of enh ancem ent factors for
the rape of a child conviction, enhancement factors involving the potential for
bodily injury, abus e of a pos ition of trust, an d excep tional c ruelty all app ly to
Appellant’s aggravated battery conviction.
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B. CONSECUTIVE SENTENCING
Appellant also challeng es the trial cou rt’s ma ndate that he serve h is
sentences consecutively. The trial judge found that con secutive senten ces were
proper under Tennessee Code Annotated § 40-35-115 (b)(5) on the basis that
defendant was convicted of aggravated sexual battery and rape of a child. The
trial court b ased the im positio n of consec utive se ntenc es up on the Appe llant’s
relationsh ip with the victim a nd the nature and s cope of the s exual a ctivity
involved. Wh ile perh aps th e relatio nship betwe en Ap pellan t and th is victim was
not the close familial relatio nship fou nd in othe r cases w here this fa ctor has
applied, Appellant was a close friend of the victim’s fathe r and wa s marrie d to the
victim’s aunt. There was a familial relationship between Appellant and the victim.
Further, the trial c ourt’s impos ition of consecutive sentences based upon the
nature of Appella nt’s acts was entirely appropriate considering the potential for
injury to which Appellant subjected N.B. and the pain she experienced during the
commission of his crime.
Howeve r, a finding that T.C.A.§ 40-35-115(b)(5) applies to Appe llant’s case
does not end the inq uiry into the validity of consecu tive senten cing. State v.
Woodcock , 922 S.W .2d 904 (Te nn. Crim. Ap p. 1995). W e further find that
consecu tive sentences are necess ary to protect the public from the defen dant’s
poss ible future crim inal cond uct and that the ag gregate sentence is reas onab ly
related to the seve rity of the des picable o ffenses in volved in th e instant case.
T.C.A. § 40-35-115 Senten cing Co mm ission C omm ents; State v. Wilkerson, 905
S.W.2d 933 (Tenn. 1995); State v. Jernigan, 929 S.W.2d 391(Tenn. Crim. App.
1996).
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Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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