State v. Tracy Mullins ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
January 21, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9803-CR-00115
Appellee, )
) PUTNAM COUNTY
VS. )
) HON. LEON BURNS, JR.,
TRACY STEWART MULLINS, ) JUDGE
)
Appellant. ) (Aggravated Sexual Battery)
FOR THE APPELLANT: FOR THE APPELLEE:
FRANK LANNOM JOHN KNOX WALKUP
B. KEITH WILLIAMS Attorney General and Reporter
102 E. Main Street
Lebanon, TN 37087 KIM R. HELPER
(On Appeal) Assistant Attorney General
Cordell Hull Building, 2nd Floor
DAVID N. BRADY 425 Fifth Avenue North
District Public Defender Nashville, TN 37243-0493
TERRY D. DYCUS WILLIAM E. GIBSON
H. MARSHALL JUDD District Attorney General
Assistant Dist. Public Defenders
215 Reagan Street JOHN B. NISBET III
Cookeville, TN 38501-3404 SHAWN FRY
(At Trial) Assistant District Attorney General
145A S. Jefferson Avenue
Cookeville, TN 38501-3424
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant was charged with one count of aggravated rape; a jury
convicted him of aggravated sexual battery. He was sentenced as a Range I
standard offender to twelve years in the Department of Correction. In this direct
appeal, the defendant raises the following issues:
(1) whether aggravated sexual battery is a lesser
included or lesser grade offense of aggravated rape;
(2) whether he received constitutionally adequate notice
of the lesser charge of aggravated sexual battery since
the indictment charged only aggravated rape;
(3) whether certain hearsay statements by the victim
were properly admitted; and
(4) whether his sentence is excessive.
Upon our review of the record, we affirm the judgment of the trial court.
I. FACTS
During the early morning hours of June 22, 1996, the defendant and the
victim were riding together in a car with several other people. They stopped at a
place near the defendant’s mother’s house, and the defendant and the victim
walked together into a wooded area. According to the victim, the defendant insisted
on engaging in sexual relations. She refused. He pushed her to the ground, ripped
off her shorts and panties, tore her shirt, and attempted to have intercourse with
her. At one point he threatened her with a small pocketknife. During the struggle,
the defendant hit the victim, pushed her head and face into the ground, and
scratched her chest. Although the defendant was unable to perform intercourse
with the victim, he did penetrate her with his fingers.
Eventually, the defendant got up to urinate and the victim ran to a nearby
house. The defendant followed her. The victim pounded on the door, and James
Qualls let her in; the defendant followed shortly thereafter. The victim attempted to
call 911, but the defendant hung up the phone. Qualls separated the two, and the
police were eventually called.
Maxine Qualls, James’ wife, testified that the victim was “crying and shaking
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and. . .upset” and said, “[h]e raped me; he raped me.” She described the victim’s
appearance as follows:
She had on a pair of blue jean shorts, had the straddle
cut out of them. They were split up both sides. She
had on a sleeveless shirt. It had no buttons. She had
a cut or a scratch on the left side of her breast. She
had grass and weeds in her hair.
Mrs. Qualls further testified that the victim was not wearing underwear.
The police arrived and took the defendant into custody. In his statement to
Officer Alton C. Allen II, the defendant admitted that he “wanted some,” but denied
inserting his fingers into the victim. However, Dr. Wendell Bruce Thomas, who
performed an examination upon the victim after the attack, found dirt and leaves
inside her vagina. He testified that this was consistent with the victim being thrown
down in a wooded area and having one or more fingers inserted into her vagina.
II. LESSER OFFENSE
The defendant first contends that the trial court erred when it gave the jury
an instruction on aggravated sexual battery. He argues that aggravated sexual
battery is neither a lesser included, nor a lesser grade offense of aggravated rape.
The state disagrees.
We note that a trial judge “must instruct the jury on all lesser grades or
classes of offenses.” State v. Cleveland, 959 S.W.2d 548, 553 (Tenn. 1997). One
offense is a “lesser included” of another “‘only if the elements of the greater offense,
as those elements are set forth in the indictment, include but are not congruent with,
all the elements of the lesser.’” Cleveland, 959 S.W.2d at 553 (quoting State v.
Trusty, 919 S.W.2d 305, 310-11 (Tenn. 1996)). A “lesser grade” offense is
established by statute. “One need only look to the statutes to determine whether
a given offense is a lesser grade or class of the crime charged.” Trusty, 919
S.W.2d at 310.
The offense of aggravated sexual battery is committed when a person has
unlawful sexual contact with the victim by using force or coercion and a weapon.
See Tenn. Code Ann. § 39-13-504(a)(1). Aggravated rape, as charged in the
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instant indictment, is committed when a person sexually penetrates the victim by
using force or coercion and while armed with a weapon. See Tenn. Code Ann. §
39-13-502(a)(1).
The evidence in this case supports a charge of aggravated sexual battery.
Therefore, if aggravated sexual battery is either a lesser included, or a lesser grade
offense of aggravated rape, the trial court did not err by instructing the jury on this
offense.
As indicated above, aggravated sexual battery is not a lesser included
offense of aggravated rape since it requires an element that aggravated rape does
not: the sexual contact must be for the purpose of sexual arousal or gratification.
However, aggravated sexual battery is a lesser grade or class offense of aggravated
rape. The sexual assault crimes are divided into the grades of aggravated rape,
rape, aggravated sexual battery, sexual battery, and rape of a child. See Tenn.
Code Ann. § 39-15-502 through -505, -522; State v. Ealey, 959 S.W.2d 605, 611
n.5 (Tenn. Crim. App. 1997).
Because the evidence in this case supports a charge of aggravated sexual
battery, and since aggravated sexual battery is a lesser grade or class offense of
aggravated rape, the trial court’s instruction to the jury was proper. This issue is
without merit.
III. CONSTITUTIONAL ISSUES
The defendant next contends that a conviction for aggravated sexual battery
based upon an indictment for aggravated rape is unconstitutional under both the
state and federal constitutions. Specifically, he complains that the indictment failed
to provide him with adequate notice of the lesser charge and fails to protect him
from double jeopardy.
A. Adequate Notice
Our Supreme Court acknowledged that “Tennessee law recognizes two types
of lesser offenses that may be included in the offense charged in an indictment and,
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may, therefore, form the basis for a conviction: a lesser grade or class of the
charged offense and a lesser included offense.” Trusty, 919 S.W.2d at 310. Thus,
notice of the charged offense includes notice of all lesser included and lesser grade
offenses. See State v. Banes, 874 S.W.2d 73, 80 (Tenn. Crim. App. 1993) (“An
indictment charging a greater offense impliedly charges all lesser included offenses
for which the proof would support a conviction.”) Otherwise, the prosecutor would
have to separately charge the accused with every possible lesser grade and lesser
included offense arguably supported by the evidence. Our constitutions simply do
not impose such a burden.
This issue is without merit.
B. Double Jeopardy
We further reject the defendant’s contention that the instant indictment fails
to protect him from double jeopardy. The trial on the primary charge of aggravated
rape was also a trial upon all lesser offenses. See State v. Tutton, 875 S.W.2d 295,
297 (Tenn. Crim. App. 1993) (“When there is a trial on a single charge of a felony,
there is also a trial on all lesser included offenses, ‘as the facts may be.’”) (citation
omitted). Any future attempt by the state to prosecute him for this offense would be
barred by double jeopardy principles. See, e.g., State v. Byrd, 820 S.W.2d 739, 741
(Tenn. 1991).
This issue is without merit.
IV. HEARSAY
The defendant’s next contention is that the trial court erred in admitting the
testimony of Melinda Kay Qualls wherein she repeats statements of the victim
overheard in her parents’ home. During her testimony, Ms. Qualls stated that the
victim said the defendant raped her, that he forced her “to do things,” and that “he
was cutting her trying to make her do what he wanted her to do.” The defendant
contends that “[a]dmission of these prejudicial statements violated the rules of
evidence.” The trial court allowed the testimony based on the excited utterance
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exception to the hearsay rule. See Tenn. R. Evid. 803(2). The trial court was
correct.
An excited utterance is a hearsay statement “relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.” Id. Here, the victim’s statements were made immediately
following her escape from the defendant and while visibly upset from the event.
These statements are classic examples of excited utterances and were properly
admitted.
This issue is without merit.
V. SENTENCING
Finally, the defendant complains that his twelve-year sentence is excessive.
The trial court imposed the maximum sentence on the basis of defendant’s criminal
record which included a prior rape conviction. See Tenn. Code Ann. § 40-35-114(1)
(enhancement is appropriate where the defendant has a previous history of criminal
convictions). The defendant offered no proof of mitigating factors at the hearing,
and the trial court found none.
When a defendant challenges the length of his sentence, we must conduct
a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). 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
burden of showing that the sentence is improper is upon the defendant. Id.
Tenn. Code Ann. § 40-35-210(c) provides that the presumptive sentence is
the minimum sentence within the range. If there are enhancing and mitigating
factors, the court must start at the minimum sentence in 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.
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Defendant’s complaint that the trial court erred by sentencing him to the
maximum sentence based upon one enhancement factor is without merit. The
weight given to enhancement factors is left to the discretion of the trial court as long
as the trial court complies with the purposes and principles of the sentencing act
and its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238
(Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997). The
defendant had a criminal history including a prior conviction for rape. The trial court
gave great weight to this enhancement factor. It did not abuse its discretion in doing
so.
This issue is without merit.
VI. CONCLUSION
After a careful review of the record, we AFFIRM the judgment of the trial
court.
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_____________________________
JOE G. RILEY, JUDGE
CONCUR:
(Not Participating)
PAUL G. SUMMERS, JUDGE
JOSEPH M. TIPTON, JUDGE
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