State of Tennessee v. Troy R. Walls ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
December 3, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9802-CC-00080
Appellee, )
) RUTHERFORD COUNTY
VS. )
) HON. J.S. DANIEL,
TROY R. WALLS, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
GERALD L. MELTON JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
JEFFREY S. BURTON DARYL J. BRAND
Assistant District Public Defender Senior Counsel
201 West Main Street, Suite 101 Criminal Justice Division
Murfreesboro, TN 37130 Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
PAUL A. HOLCOMBE, III
Assistant District Attorney General
303 Rutherford Co. Judicial Bldg.
Murfreesboro, TN 37130
OPINION FILED:
CONVICTIONS VACATED; REMANDED
JOE G. RILEY,
JUDGE
OPINION
A Rutherford County grand jury indicted defendant for aggravated rape, two
counts of aggravated sexual battery, and rape of a child for incidents involving his
young female cousin. A negotiated plea agreement allowed defendant to plead to
one count of rape, a Class B felony, and one count of incest, a Class C felony. The
agreed upon sentences were eight years for rape and three years for incest to be
served consecutively as a Range I, standard offender. The sole issue on appeal is
the trial court’s denial of alternative sentencing. However, plain error dictates that
the convictions be VACATED and the case REMANDED for further proceedings.
The defendant pled guilty to incest which is neither a lesser included nor a lesser
grade of child rape; nor do the acts of the defendant constitute the crime of incest.
FACTS
Defendant is the first cousin of the female victim, K.W.1 He admitted having
sexual contact with the victim during the spring or early summer of 1991, while she
was visiting his home. Later that summer, defendant sexually penetrated the victim.
At the time, he was fifteen years old; she was five. When defendant was eighteen
and the victim was eight, sexual penetration again occurred.
PROCEDURAL HISTORY
Pursuant to a negotiated plea agreement, the state dismissed the two counts
of aggravated sexual battery upon defendant’s plea of guilty to the reduced charges
of simple rape as a lesser offense of aggravated rape and incest as a lesser offense
of child rape. Defendant agreed to consecutive eight and three year sentences.
1
It is this Court’s policy not to reveal the names of minor victims of sexual abuse.
2
The trial court denied defendant’s application for alternative sentencing, and this
appeal followed.
GUILTY PLEA
By agreement, defendant pled to and was found guilty of one count of rape
and one count of incest. The agreed upon sentence was effectively 11 years with
the question of alternative sentencing left to the trial court’s discretion.
Our review of the guilty plea hearing and sentencing hearing reveals no
discussion regarding the elements of the offense of incest. Rather, all parties
apparently operated under the assumptions that: (1) incest was a lesser offense of
child rape; and (2) the facts fit the crime of incest. Unfortunately, those
assumptions were incorrect.
A.
Incest is neither a lesser included nor a lesser grade of the offense of rape
of a child. An offense is a lesser included offense “only if the elements of the
included offense are a subset of the elements of the charged offense and only if the
greater offense cannot be committed without also committing the lesser offense.”
State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). An offense is generally
considered a lesser grade offense if it is codified within the same title, chapter and
part of the Code. State v. Cleveland, 959 S.W.2d 548, 553 (Tenn. 1997).
Rape of a child requires sexual penetration involving a child under 13 years
of age. Tenn. Code Ann. § 39-13-522. The incest statute proscribes sexual
penetration between persons of an enumerated level of kinship, but makes no
reference to age. Tenn. Code Ann. § 39-15-302. Each offense requires proof of
an essential element that the other does not. Under Trusty, neither offense is a
subset of the other. Additionally, as noted above, each offense is codified in a
different chapter and part of the Code. This confirms that each provision protects
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a different interest. The rape of a child statute protects children under age 13 from
sexual penetration; incest prohibits sexual penetration between particular levels of
family.
Thus, incest is neither a lesser included nor a lesser grade offense of rape
of a child. See State v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982)(finding that
incest and aggravated rape are two distinct offenses and that a defendant can be
guilty of both as a result of a single act of intercourse).
This Court has previously vacated an incest conviction based upon a guilty
plea when the indicted charge was rape. See State v. Jimmy D. Johnson, C.C.A.
No. 03C01-9602-CC-00062, Blount County (Tenn. Crim. App. filed October 16,
1997, at Knoxville). Judge Joseph M. Tipton concluded that the defendant was
convicted of an offense with which he was not charged. Id.
For these reasons, the incest conviction must be set aside. Furthermore,
since the pleas to both rape and incest were entered pursuant to a plea agreement
for an effective 11-year sentence, both convictions must be set aside. The parties
may now proceed pursuant to the original indictment.
B.
A review of the guilty plea and sentencing hearings demonstrates that the
victim is defendant’s cousin. Contrary to the parties’ assumption, we note that the
incest statute does not include cousins within the proscribed level of kinship. See
Tenn. Code Ann. § 39-15-302(a)(1),(2). Therefore, defendant’s sexual conduct with
K.W., as contemptible as it was, did not violate the incest statute. For this reason,
we are reluctant to conclude that the indictment was impliedly amended by virtue
of the guilty plea.2
SENTENCING
2
In State v. Jimmy D. Johnson, supra, Judge Tipton discussed the need for a
written amendment to an indictment.
4
In view of the need to remand for further proceedings, the issue of alternative
sentencing is pretermitted. Nevertheless, we will briefly address this issue.
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 determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant’s criminal record, the
defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
Probation may be denied based solely upon the circumstances surrounding
the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995);
State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). However, the
circumstances must be especially violent, horrifying, shocking, reprehensible,
offensive or otherwise of an excessive or exaggerated degree; and the nature of the
offense must outweigh all factors favoring probation. Hartley, 818 S.W.2d at 374-
75.
Although defendant is a Range I, standard offender, he was convicted of
simple rape, a Class B felony, in addition to incest, a Class C felony. A conviction
for a Class B felony negates the presumption that he is a favorable candidate for
alternative sentencing. See Tenn. Code Ann. § 40-25-102(6).
Given the presumption of correctness of the trial court’s determinations, the
denial of alternative sentencing was appropriate.
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CONCLUSION
Since the defendant entered a guilty plea to rape and incest with an agreed
effective 11- year sentence, it is necessary to vacate both convictions and remand
for further proceedings pursuant to the original indictment.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
PAUL G. SUMMERS, JUDGE
____________________________
JOSEPH M. TIPTON, JUDGE
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