State v. Jack Emert ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 21, 1999
Cecil Crowson, Jr.
JUNE 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9802-CC-00074
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.,
JACK WARREN EMERT, JR., ) JUDGE
)
Appellant. ) (Aggravated Sexual Battery)
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
JULIE A. MARTIN MARVIN S. BLAIR, JR.
P.O. Box 426 Asst. Attorney General
Knoxville, TN 37901-0426 Cordell Hull Bldg., 2nd Fl.
(On Appeal) 425 Fifth Ave., North
Nashville, TN 37243-0493
NATALEE HURLEY
Asst. District Public Defender MIKE FLYNN
419 High St. District Attorney General
Maryville, TN 37804
(At Trial) KIRK ANDREWS
Asst. District Attorney General
363 Court St.
Maryville, TN 37804
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was found guilty by a jury of aggravated sexual battery and
was sentenced to a term of ten years to be served in the Tennessee Department of
Correction. The trial court denied the defendant’s subsequent motion for a new trial. The
defendant now appeals and contends that the evidence is insufficient to support his
conviction and that his sentence is excessive. After a review of the record and applicable
law, we find no merit to the defendant’s contentions and thus affirm the judgment of the
trial court.
The evidence at trial indicated that on February 8, 1996, the defendant was
visiting the victim’s parents in their home. At approximately 5:45 p.m., the victim’s
parents left the house for an appointment at Accu-Tax. Before leaving, the victim’s
parents asked the defendant to stay with the victim and he agreed. W hile at Accu-Tax,
the victim’s mother received a phone call from a friend who indicated that the victim had
been molested. The victim’s parents rushed home to find the victim crying and
“hysterical.” The defendant was sitting on the couch watching television. The police
arrived shortly thereafter and the defendant was escorted off the premises.
According to the victim, after her parents left the house she and the
defendant started playing with a water bottle. After she squirted the defendant with
water, he playfully chased her around the house. The victim, who was ten years old at
the time, tried to hide from the defendant. The defendant then came up behind the
victim, held her arms, covered her mouth, and said, “Shhh, be quiet, don’t scream.” The
defendant slid his free hand down the inside of the front of her shirt and touched and
rubbed her breasts and nipples. The victim testified that the touching lasted for
approximately fifteen seconds while she was struggling to get loose. After freeing herself
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from the defendant, the victim ran to the bathroom and locked the door. The defendant
came to the door and told the victim there was no use in telling anyone what had
happened because her father would not believe her. A short while later, the victim left
the bathroom, went into her mother’s bedroom, and called a family friend who in turn
contacted the victim’s mother.
The defendant also testified at trial. According to the defendant, after
playing with a water bottle, he and the victim sat down to watch television. They could
not agree on which television show to watch. The defendant then told the victim to go
to her room and she “threw a fit.” The defendant approached the victim and “pointed her
towards . . . her bedroom.” The defendant claimed he touched the victim’s sides and the
victim fell to the floor causing her shirt to “come up.” The defendant testified that when
he tried to pick the victim off the floor, she claimed he touched her breasts and ran into
her mother’s bedroom. The defendant testified that he did not intentionally touch the
victim’s breasts.
The defendant now contends that the evidence is insufficient to sustain his
conviction. Specifically, the defendant argues that there was no evidence that he
intentionally touched the victim’s chest for purposes of sexual arousal or gratification, an
essential element of the crime of aggravated sexual battery. See T.C.A. §§ 39-13-501(6),
504.
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
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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).
Aggravated sexual battery is defined by statute as the “unlawful sexual
contact with a victim by the defendant” when “[t]he victim is less than thirteen (13) years
of age.” T.C.A. § 39-13-504(a). “Sexual contact” is defined as the “intentional touching
of the victim’s . . . intimate parts, or the intentional touching of the clothing covering the
immediate area of the victim’s . . . intimate parts, if that intentional touching can be
reasonably construed as being for the purpose of sexual arousal or gratification.” T.C.A.
§ 39-13-501(6).
The evidence adduced at trial established that the defendant held the
victim’s arms, put his hand over her mouth, told her to be quiet, slid his hand under her
shirt, and rubbed her breasts and nipples. This touching continued until the victim was
able to free herself from the defendant’s hold. The victim’s testimony indicated that the
touching was purposeful rather than accidental. This Court has held that jurors may use
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their common knowledge and experience in making reasonable inferences from the
evidence. State v. Meeks, 876 S.W.2d 121, 131 (Tenn. Crim. App. 1993). As such, the
jury could have drawn on common knowledge to reasonably infer that the defendant
rubbed the victim’s breasts for the purpose of sexual arousal or gratification. See id.
Thus, we find the evidence sufficient to sustain the defendant’s conviction for aggravated
sexual battery. See State v. Terrell Dion Cowans, No. 02C01-9610-CC-00359, Henry
County (Tenn. Crim. App. filed November 20, 1997, at Jackson) (holding proof that the
defendant forced the eleven-year-old victim onto the floor and fondled her breasts on top
of her clothes sufficient to support a conviction for aggravated sexual battery).
The defendant further claims that based on his level of intoxication, he
“could not have obtained sexual arousal or gratification by any means, much less a quick
feel of the victim’s breast.” The defendant argues that his level of intoxication interfered
with his ability to form the requisite mens rea. We note that while voluntary intoxication
is not a defense to the commission of an offense, it is admissible when relevant to negate
a culpable mental state. T.C.A. § 39-11-503(a). Whether the defendant’s level of
intoxication is of such a degree to negate the required mens rea is a question for the jury
to decide. State v. Jeffery Martin Wallace, No. 02C01-9708-CC-00305, Henry County
(Tenn. Crim. App. filed November 5, 1998, at Jackson)(citing State v. Bell, 690 S.W.2d
879, 882 (Tenn. Crim. App. 1985); State v. Givens, 631 S.W.2d 720, 721 (Tenn. Crim.
App. 1982)). “In essence, the determinative question is not whether the accused was
intoxicated, but what was his mental capacity at the time of the incident.” State v. Jeffery
Martin Wallace, No. 02C01-9708-CC-00305, Henry County (Tenn. Crim. App. filed
November 5, 1998, at Jackson)(citing Harrell v. State, 593 S.W.2d 664, 672 (Tenn. Crim.
App. 1979)). In finding the defendant guilty, the jury implicitly found that the defendant
acted intentionally. This finding is supported by the victim’s testimony that the defendant
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held her arms and covered her mouth while rubbing her breasts. Although the defendant
testified that any touching that occurred was merely accidental, it was within the province
of the jury to accredit or discredit such testimony. See Cabbage, 571 S.W.2d at 835.
In light of its verdict, the jury obviously found that the defendant acted intentionally rather
than accidentally, and we will not disturb the jury’s factual finding on appeal. Id.
The defendant next contends that his sentence is excessive. 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).
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
within 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 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 concedes that the trial court appropriately applied
enhancement factor (1), that the defendant has a previous history of criminal convictions
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and criminal behavior, and enhancement factor (6), that the personal injuries inflicted
upon the victim were particularly great. T.C.A. § 40-35-114(1), (6). However, the
defendant challenges the trial court’s consideration of three citations of contempt that
were filed at the time the defendant was sentenced. The trial court stated that although
there was no proof in the record regarding the disposition of the citations, the citations
did indicate “a failure to follow some orders arising from [other] convictions. Evidently
that doesn’t weigh very heavily in my estimation, but it is present.” As there was no
evidence in the record regarding the facts surrounding the citations or the disposition of
the citations, it was improper for the trial court to consider the citations as an
enhancement factor. However, the trial court placed little emphasis on this factor.
The defendant also contends that the trial court failed to consider several
mitigating factors. The defendant first argues that the trial court should have considered
as a mitigating factor the fact that he acted under strong provocation. T.C.A. §40-35-
113(2). The defendant argues that his level of intoxication in conjunction with “the
horseplay between him and the victim followed by their argument over the TV should
have been considered as strong provocation” by the trial court. According to the
defendant, “[a]lcohol is known to bring out the worst in people, and it is hard to imagine
someone not reacting under strong provocation when he is drunk, soaking wet and being
argued with and yelled at by a child of this age.” However, the defendant cites no
authority to support his contentions. In addition, the record does not contain any
evidence of strong provocation that would justify mitigation of the defendant’s sentence.
As such, this contention is without merit.
The defendant next contends that the trial court should have considered as
a mitigating factor the fact that there was a lack of sustained intent to violate the law.
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T.C.A. § 40-35-113(11). In support of this, he argues that he was intoxicated, he was
arguing with the victim, he was soaking wet, and this incident lasted only seconds.
However, the testimony indicated that the defendant came up behind the victim, held her
arms, covered her mouth, told her to “be quiet,” fondled her for approximately fifteen
seconds, and then told her that there was no use in telling anyone about the incident
because she would not be believed. These facts are inconsistent with the defendant’s
argument that he did not have a sustained intent to violate the law. As such, we find no
merit to this contention.
The defendant further contends that the trial court should have applied his
remorse as a mitigating factor. T.C.A. § 40-35-113(13). However, a sentencing court is
not required to consider the defendant’s remorse as a mitigation factor. Therefore, failure
to apply such a mitigator to reduce the defendant’s sentence cannot be considered an
error. As such, this contention is also without merit.
The possible range of punishment for this offense is eight to twelve years.
In light of the foregoing applicable enhancement factors and lack of applicable mitigating
factors, it was entirely proper for the trial court to sentence the defendant to a term of ten
years as a Range I standard offender.
The defendant next contends that the trial court erred in not placing him in
a community corrections program rather than incarceration. To be eligible for
consideration of a sentence in a community corrections program, an offender must meet
the requirements of T.C.A. § 40-36-106. In this case, the defendant was convicted of
aggravated sexual battery, which is a felony offense involving a crime against a person
as provided in title 39, chapter 13, parts 1-5. As such, the defendant is ineligible for
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community corrections sentencing under subsection (a). See T.C.A. § 40-36-106(a)(2).
The defendant contends that he is eligible for community corrections
sentencing under the special needs provision of the sentencing statute. T.C.A. § 40-36-
106(c). However, “[b]efore an offender may be sentenced pursuant to subsection (c), the
offender must be found eligible for probation.” State v. Grigsby, 957 S.W.2d 541, 546
(Tenn. Crim. App. 1997)(citing State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App.
1989)). The defendant was convicted of T.C.A. § 39-13-504, aggravated sexual battery,
and is therefore statutorily ineligible for probation. See T.C.A. § 40-35-303(a). As such,
the defendant is also ineligible for community corrections sentencing under subsection
(c). In light of the foregoing, the trial court properly ordered the defendant to serve his
sentence of ten years in the Tennessee Department of Correction.
Accordingly, we affirm the defendant’s conviction and sentence.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
______________________________
JOHN EVERETT W ILLIAMS, Judge
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