State v. Larry Morris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMB ER SESSION, 1997 FILED
March 19, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CR-00379
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. CAROLYN WADE BLACKETT
LARRY F. MORRIS, ) JUDGE
)
Appe llant. ) (Direct Appeal - Aggravated Sexual
) Battery
FOR THE APPELLANT: FOR THE APPELLEE:
BILL ANDERSON, JR. JOHN KNOX WALKUP
138 N . Third S t. Attorney General and Reporter
Memphis, TN 38103
KENNETH W. RUCKER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-4351
WILLIAM L. GIBBONS
District Attorney General
PAUL F. GOODMAN
RHEA CLIFT
Assistant District Attorn eys
201 Poplar Avenue - 3rd Floor
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On February 8, 1996, a Shelby County jury found Appellant, Larry F.
Morris, guilty of a ggrav ated s exual b attery. T he trial court conducted a sentencing
hearing and sentenced Appellant to eight years in the Tennessee Department of
Corrections as a standard Range I offender. Appellant appeals from the
judgmen t, raising several issues, sp ecifically:
1) whethe r the indictm ent in the c ause w as fatally de fective so a s to
deprive the trial court of jurisdiction;
2) whether the trial court erred in finding the victim c ompete nt to testify;
3) wheth er the tr ial court erred in allowing the jury to hear a tape of an
interview of Appellant by the Tennessee Department of Human Services;
4) whethe r the trial cou rt erred in re fusing to a llow the de fense to review
the en tire file of the Tennessee Department of Human Services concerning the
investigation of this case;
5) whether the trial court erred in allow ing tes timon y conc erning the victim ’s
“fresh complaint”; and
6) wheth er the evid ence w as sufficien t to sustain the jury’s verd ict.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
On Septe mbe r 29, 19 94, aro und tw o o’clo ck in the afternoon, Helen
Tram mell picked up her granddaughter, A.C., and her gra ndso n, from a Moth er’s
Day Out program which the children attended every Tuesday and Thursday. 1
A.C. wanted to go play with Jonathan Morris, Appellant’s son, instead of
accompanying her gra ndm other o n an e rrand . Ms. T ramm ell took A.C . to the
Morris apartment, and left A.C. in Appellant’s care. Appellant told Ms . Tram mell
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It is the policy of this Court to refer to child victims of sex abuse by initials only.
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that his wife had gone out to pay a cable bill, but would return ho me with
Jonathan in about ten minutes.
According to A.C., while alone with Appellant, Ap pellant “put [his finger]
down here and hurt me.” A.C. testified that Appellant touched her inside her
panties with his index finger. Ms. Trammell returned from her errands, and found
Appe llant, his wife and Jonathan all at home. Normally A.C. would continue
playing with Jona than, bu t on this occasion she attached herself to her
grandm other. Ms. Trammell took A.C. to her ho use, a nd A.C .’s mother picked the
children up around six o’clock that evening.
The next morning A.C. returned to Ms. Trammell’s house. A.C. told Ms.
Tram mell of the p ain between her legs. During that day, Ms. Trammell observed
that A.C. wa s beha ving stran gely, crying and staying very close to her
grandm other, Ms. Tra mm ell. Ms. Trammell was forced to pull the shades down
in the apartment because A.C. wa s terrified of A ppellant, whose apartment was
nearby.
Ms. Trammell called A.C .’s mother at work, who in turn called the Rape
Crisis Center. A.C.’s mother picked up A.C . aroun d five thirt y in the afternoon and
she, A.C., A .C.’s father and A.C.’s brother went to Chuck E. Cheese’s. After
eating, A.C.’s parents took her to LeBonheur Hospital, where they were
unsu cces sful in obtaining medical attention. On Monday, A.C. was taken to the
Childr en’s Advocacy C enter where she was examined by Dr. Judith Hersh, an
obstetrician-gynecologist with a specialty in pedia tric and adolesc ent gynecolo gy.
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Dr. Hersh noted a healing abrasion on A.C.’s left labia majora, which she felt had
occurred within a week to ten days of the examination.
Durin g the course of the Department of Human Services investigation of
the possible abuse of A.C., Jean Watson, of that agency, talked with A.C., Ms.
Tram mell and Appellant. Ms. Watson taped her interview with Appellant. In the
interview, Appellent explicitly denied that A.C. had been at his house on the day
in question . Ms. W atson tes tified that she said noth ing during the interview to
indicate which day was under investigation, but that Appellant of his own acco rd
denied that A.C . had be en with him on “Th ursday.”
I. SUFFICIENCY OF THE EVIDENCE
In his final allegation of error, Appellant challenges the sufficiency of the
evidence presented at trial. When an appellant challenges the sufficiency of the
evidence, this Cour t is oblige d to rev iew tha t challe nge a ccord ing to c ertain w ell-
settled principles . A verdict of guilty by the jury, approved by the trial judge,
accred its the testimony of the S tate’s witnesses and resolves all conflicts in the
testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.
1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.. 1992). Although an accused
is originally cloaked with a presumption of innoc ence , a jury ve rdict rem oves th is
presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,
914 (Tenn.. 198 2). Hence, on appeal, the burden of proof res ts with Ap pellant to
demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the
[S]tate is entitled to the strong est legitima te view o f the evid ence as we ll as all
reaso nable and legitim ate inferen ces that m ay be dra wn there from.” Id. (Citing
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.. 1978)). Where the sufficiency of
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the eviden ce is co nteste d on a ppea l, the relevant question for the revie wing court
is whether any rational trier of fact could have found the accused guilty of every
element of the offen se beyo nd a rea sonab le doub t. Harris , 839 S.W.2d 54, 75;
Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560(1979). In conducting our evaluation of the convicting evidence, this Court is
precluded from reweigh ing or reco nsidering the evide nce. State v. Morgan, 929
S.W.2d 380, 383 (Tenn.. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776,
779 (Tenn.. Crim. A pp. 1990). Moreover, this Court may not substitute its own
inferences “for those drawn by the trier of fact from circumstantial evidence.”
Mathews, 805 S.W .2d at 779 . Finally, the T ennes see Ru les of Ap pellate
Procedure, Rule 13(e) provides, “findings of guilt in criminal actions whether by
the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact beyond a reasona ble doubt.” See also State v.
Mathews, 805 S.W .2d at 780 .
In the matter sub judice, Appellant was charged with aggravated sexual
battery which is defined in pertinent part as unlaw ful sexu al con tact with a victim
by the de fenda nt whe n the vic tim is less than thirteen yea rs of age. Tenn. Code
Ann. 39-13-504(a) & 39-13-502(a)(4). “Sexual contact” includes the intentional
touching of the victim ’s intimate body pa rts, if that intentional touching can
reaso nably be construed as being for the purpose of sexual arousal or
gratification. Tenn . Code Ann. 39-13 -501( 6). A.C . testified that Ap pellan t used his
finger to touch her under her panties, and that his touch hurt her. Dr. Hersh
testified that the scratch on A.C.’s labia majora was consistent with the touch of
a huma n finger. A .C. was le ss than th irteen yea rs of age at the time of the
offense. Jurors may use their common knowledge and experience in making
reaso nable inference s from th is evidenc e. State v. Meeks, 876 S.W.2d 121, 131
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(Tenn. Crim. App . 1993)(citing 23A C.J.S. Criminal Law § 1380). The sexual
contact could reasonably have been construed by the jury as being for sexual
arousa l or gratification This issu e is withou t merit.
II. SUFFICIENCY OF THE INDICTMENT
Appellant raises an issue of the sufficie ncy of the indictme nt, alleging that
under this Court’s decision in State v . Hill, 1996 WL 3469 41, the indictm ent in
this case fails because it did no t allege a men s rea for the crime . However, since
the filing of the briefs in this matter, the Supreme Court settled this issue in State
v. Hill, 01-S-01-9701-CC-000 05, W ayne Cou nty, (Tenn., No vember 3 , 1997),
holding that the required mental state “may be inferred from the nature of the
criminal cond uct alleged.” Id. at 9. This is sue is with out me rit.
III. COMPETENCY OF VICTIM TO TESTIFY
Appellant next alleges that the trial cou rt erred in finding A.C. competent
to testify. Appe llant conte nds tha t becau se A.C . stated during the competency
hearing that she had never told an untruth that she does not understand the
difference between truth and lying. The Tennessee Rules of Evidence Rule 601
clearly states that every person is presumed to be a competent witnesses unless
falling into one of the listed ca tegorie s. This rules m eans that no perso n sha ll be
autom atically barred from testifying simply because of age or mental status. “The
purpose of determining the competency of the witness in child sexual abuse
cases is to allow a victim to testify if it c an be determ ined th at the c hild
understands the necessity of telling the truth while on the witness stand .” State
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v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). The question of competency is a
matter for the trial cou rt's discretion . State v. Caughron, 855 S.W.2d 526, 538
(Tenn. 1993) (citing Arterbu rn v. State , 391 S.W.2d at 657; State v. Braggs, 604
S.W.2d 883, 88 6 (Ten n.Crim .App.19 80); State v. Nelson, 603 S.W.2d 158, 168
(Tenn.C rim.App.19 80)). The record shows that the witness demonstrated that
she knew th e differenc e betwe en the tru th and a lie, identifying examples of each.
She further testified that she realized that it was very important for her to tell the
truth. The court did n ot abus e its discretio n here. T his issue is without m erit.
IV. TAPED INTERVIEW
Appellant also argues that the trial court erred in permitting the playing for
the jury of a taped interview of Appellant conducted by Jean Watson, an
investigator for the department of Human Services. In this interview, Ms. Watson
told Appella nt that he w as und er investiga tion for havin g mole sted A.C , but did
not tell Appellant when the molestation allegedly occurred. Appellant admitted
that A.C. had visited his ho me, b ut spe cifically d enied that A.C . had b een in his
care the previous Thursday, the day on which A.C. claimed that the event took
place. Appellant claims that the statement is hearsay in that it does not reach the
level of an admission of a party opponent and further contends that the statement
is irrelevant to the issue s at trial.
Tenn. R. Evid. 801(c) defines “hearsay” as:
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. . . a statem ent, other than one made by the declarant
while testifying at the tria l or hea ring, offe red in
evidence to prove the truth of the matter asserted.
Here the State offered the tape as proof of Appellant’s guilty knowledge,
rather than the truth of the matter asserted, and therefore claims that the tape
was not hearsay eviden ce. Cle arly the State was no t attemp ting to prove the truth
of the statement, which is exculpatory in substance. The statement is not
hearsay, but was admitted to show the Appellant’s guilt through his having
volunteered the date of the alleged offense without ever having been told of the
date. Th is issue is w ithout me rit.
V. DEPARTMENT OF HUMAN SERVICES CASE FILE
Appellant also contends that the trial court erred in refusing to grant
defense counsel access to the entirety of the Department of Human Services
case file regarding this case. Because Appe llant objected to the jury reading a
transcript of the interview between Ms. Watson and Appellant, the keeper of the
Department of Human Services’ records, a Ms. Smiley, was called to testify that
she maintained the DHS records during the course of her employment and that
the DHS file contained the interview tape. Ms. Smiley had no prior knowledge of
this case, and merely testified as to the location of the tape in the DHS archives.
Appellant argues that under the Tennessee Rules of Evidence Rule 612, he was
entitled to re view the D HS file.
Tenn. R. Evid. 612 provides:
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If a witness uses a writing while testifying to refresh
mem ory for the pur pose o f testifying, an a dverse p arty
is entitled to ins pect it, to cross-examine the witness
thereon, and to introduce in evidence those portions
which relate to th e testim ony of th e witne ss. If it is
claimed that the writing contains matters not related to
the subje ct matte r of the te stimo ny, the c ourt sh all
examine the writing in camera, excise any portions not
so related, a nd order delivery of the remainder to the
party entitled thereto. Any portion withheld over
objections shall be pres erved an d mad e available to
the appellate court in the event of appeal. If a writing
is not produce d or delivered pursuant to order under
this rule, the court shall make any order justice
requires; in criminal cases when th e prose cution ele cts
not to comply, the order shall be one striking the
testimony or, if the court in its discretion determines
that the interests of justice so requir e, declaring a
mistria l.
The record demonstrates that Ms. Smiley did not use the records to refresh her
mem ory; she merely testified that the interview tape was contained in the DHS
records . Thus, R ule 612 does n ot apply h ere. Th is issue is w ithout me rit.
VI. FRESH COMPLAINT
Appellant argue s that th e trial court erred in allowing into evidence
testimony which should have been excluded as “fresh complaint”. In State v.
Livingston, the Supreme Court held that “in cases where the victim is a child,
neither the fact of the complaint nor the details of the complaint to a third party
is admiss ible unde r the fresh c ompla int doctrine .” State v. Livingston, 907 S.W.2d
392 (Tenn. 199 5). Appe llant’s allega tion is th at with O fficer W illiam K ohl, A.C .’s
mother and Ms . Tram mell, the S tate brou ght into evid ence th e fact of A.C .’s
complaint against Appellant. The record, however, do es not supp ort Appe llant’s
position. The doctrine of fresh complaint was develo ped in order to adm it
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evidence which otherwise would be exc luded un der the h earsay ru les. In
Livingston the Su prem e Cou rt, while e xpres sing d isplea sure w ith both the ru le
and the underlying societal reason for the rule, explained that it viewed the
doctrine as still necessary in adu lt sexual assault cases because of the societal
view that an ad ult who is a ssaulted will report the crime. Id. at 394. “Fresh
comp laint” is esse ntially a h earsa y exce ption w hich a pplies only to sexua l assau lt
cases involving adults. Fresh complaint is not im plicate d unle ss the testim ony is
hearsay testim ony.
The State questioned Officer Kohl solely about whether he took a
complaint from the victim’s fam ily. This testimony is not hearsay testimony, and
therefore need not be subjected to “fresh complaint” analysis. Further, the
testimony of A.C .’s mother related only to what she did on the days following the
crime: she reported that the day after the crime, she called the Rape crisis Center
and later took her daughter to the hospital, hoping to see a doctor. She also
testified that she took A.C. to the Children’s Advocacy Center where A.C. was
seen by a doctor. Her testimony presented no hearsay evidence; it merely related
her action s. Finally the testimon y of Ms. T ramm ell to which Appellant objected
was mere ly her observation that A.C. “was real red”, an observation made by the
witness. T his is not “fres h com plaint” evide nce. Th is issue is w ithout me rit.
For the aforementioned reasons, the judgment of the trial court is affirmed.
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____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
J. CURWOOD WITT, JR., JUDGE
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