State of Tennessee v. Ronald Paul

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1997 FILED
September 19, 1997
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9511-CC-00358
Appellee )
) ROBERTSON COUNTY
vs. )
) Hon. ROBERT W. WEDEMYER, Judge
RONALD PAUL, )
) (Three counts of rape; one count of
Appellant ) agg. sexual battery; two counts of
sexual battery)
For the Appellant: For the Appellee:
FRED WARREN LOVE CHARLES W. BURSON
Asst. District Public Defender Attorney General and Reporter
109 South Second Street
Clarksville, TN 37040 MERRILYN FEIRMAN
Assistant Attorney General
Criminal Justice Division
MICHAEL R. JONES 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
DENT MORRISS
Asst. District Attorney General
507 Public Square
Springfield, TN 37172
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Ronald Paul, appeals as of right from his convictions of
three counts of rape, one count of aggravated sexual battery, and two counts of
sexual battery. The trial court imposed an effective sentence of thirty-two years.
The appellant’s sole issue on appeal is whether the testimony of a nurse
practitioner, which identified the appellant as the perpetrator of sex offenses
upon the victim, was error.
After a review of the record, we affirm the trial court’s judgment.
The appellant’s convictions stem from the perpetration of sex offenses
upon his step-daughter, DD.1 The jury found that the appellant raped and
sexually abused his step-daughter over a period of approximately four years.
The victim was eleven years old when the sexual assaults began. The
overwhelming evidence in support of this verdict included incriminating
statements from a taped phone conversation between the victim and the
appellant.2 The proof relevant to the issue before us established that the victim
was referred for medical examination to a Nashville clinic which specializes in
child sexual abuse cases. As part of the examination, the victim’s mother
provided information to a social worker at the clinic which identified the appellant
as the perpetrator of the alleged sex offenses. This medical history was then
made available to the nurse practitioner who performed a physical examination
1
It is this co urt’s policy to us e the initials of m inors involved in se xua l abus e in ord er to
prote ct their identity. See State v. Schimpf, 782 S.W .2d 186, 188 n.1 (T enn. Crim . App. 1989).
2
After the appellant was arrested on charges of aggravated rape, sexual battery, and
incest, he arranged to have the victim and her m other “done away with.” He solicited an
undercover agent from the Tennessee Bureau of Investigation to murder his wife and step-
daughter for a total of one thousand dollars. The agent was supposed to collect the money from
the appellant’s eighty-one year old mother who was also aware of the plan. The TBI agent
recorde d the entire p hon e co nversation he had with the app ellant conc erning the solicitation .
However, the evidence indicates that the appellant soon learned he had contracted with an
undercover TBI agent to accomplish the murders. Consequently, he withdrew his request. Since
the appellant canceled the plan before he had taken a substantial step toward its completion, he
was not charged with this crime.
2
of DD. Based upon these circumstances, the appellant contends that the
testimony at trial of the nurse practitioner identifying the appellant as the
perpetrator was error.3
The State argues that the appellant’s claim is procedurally defaulted for
two reasons. First, the appellant failed to contemporaneously enter an objection
to the testimony on the basis which he now challenges on appeal. Objections
must be specific as to the grounds upon which they are based. State v.
Weeden, 733 S.W.2d 124, 125-126 (Tenn. Crim. App. 1987); See also Rule
103(a)(1), Tenn. R. Evid. The appellant objected to the nurse practitioner’s
testimony only because she did not speak directly to the victim’s mother.4 On
appeal, the appellant objects to the testimony on the ground that the testimony
identified the appellant as the perpetrator. Second, in his motion for a new trial
the appellant raised seven issues, none of which include the hearsay issue he
now raises on appeal. Tenn. R. App. P. 36(a) specifically directs that relief on
appeal need not be granted “to a party responsible for an error or [to a party]
who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.” See also State v. Caughron, 855 S.W.2d 526,
538 (Tenn. 1993). We agree.5
3
The appellant argues that the testimony of the nurse practitioner falls neither within the
“business records” exception nor the “medical diagnosis and treatment” exception to the hearsay
rule.
4
The record reflects that when the nurse practitioner, Rosof, began her testimony
concerning DD’s medical history, counsel for the appellant asked, “Judge, can I find out if she
took this history or if someone else did?”
After Ms. Rosof informed the appellant’s counsel that DD’s mother gave the information
to a trained social worker from the clinic, counsel stated, “I guess I have an objection because she
[Nurse Rosof] didn’t actually talk to the person [DD’s mother] who gave the history unless it was a
child.” Clearly, the appellant’s objection was not on the basis that this testimony identified him as
the perpetrator of DD’s abuse.
5
Notwithstanding the fact that the appellant has waived the hearsay issue, we find that the
evidence is admissible under both the “medical records” exception to hearsay, Tenn. R. Evid.
803 (4) and the “bu siness reco rds” exc eption to the h ears ay rule, T enn . R. Evid. 803(6). See State
v. Livingston, 907 S.W .2d 392, 397 (T enn . 1995); State v. Rucker, 847 S.W .2d 512, 519 (Tenn.
Crim . App . 1992); State v. Hunter, C.C.A. No. 01C01-9410-CR-000335 (Tenn. Crim. App. at
Nashville, Nov. 25, 1995). Moreover, the record reflects that both the victim and her m other
testified at trial abo ut the con tents of this repo rt.
3
Accordingly, the judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_________________________________
PAUL G. SUMMERS, Judge
_________________________________
JERRY L. SMITH, Judge
4