State of Tennessee v. John Thomas Mullinicks, Jr. ( 2019 )

07/11/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 14, 2018 Session
STATE OF TENNESSEE v. JOHN THOMAS MULLINICKS, JR.
Appeal from the Circuit Court for Dickson County
No. 22CC-2016-CR-178 Suzanne Lockert-Mash, Judge
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No. M2018-00233-CCA-R3-CD
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The Appellant, John Thomas Mullinicks, Jr., pled no contest in the Dickson County
Circuit Court to four counts of statutory rape by an authority figure and received a total
effective sentence of twelve years in the Tennessee Department of Correction. On
appeal, the Appellant contends that the presentment failed to allege all of the essential
elements of the charged offense of statutory rape by an authority figure, which renders
his convictions void. Upon review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.
Michael J. Flanagan (on appeal) and Jennifer Thompson (at trial), Nashville, Tennessee,
for the Appellant, John Thomas Mullinicks, Jr.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
W. Ray Crouch, Jr., District Attorney General; and Carey J. Thompson, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
A Dickson County Grand Jury returned a multi-count presentment charging the
Appellant with statutory rape by an authority figure in counts one through four, rape in
counts five through eight, and solicitation of a minor in count nine. On November 8,
2017, the Appellant entered a no-contest plea to counts one through four in exchange for
the dismissal of the remaining counts.
The State maintained that if the case had gone to trial, the proof would have shown
that the victim, A. L. K.,1
was a basketball player on the girls basketball team at
Creekwood High School. [The Appellant] was the head
coach of the girls basketball team and then on these four
occasions or at least four occasions she was called down to
his office under the guise of being rehabbed for [a] hip injury
that she had suffered earlier in the year; and that during those
so-called rehab sessions [the Appellant] digitally penetrated
her.
The plea agreement provided that the Appellant would be sentenced as a Range I
offender, that the offenses were Class C felonies, and that the sentence range was
between three and six years. The plea agreement further provided that the trial court
would determine the Appellant’s sentences. After a sentencing hearing, the trial court
imposed a sentence of four years for each offense. The trial court ordered that counts
one, two, and three be served consecutively to each other and that count four be served
concurrently with count one for a total effective sentence of twelve years.
On appeal, the Appellant contends that the presentment failed to allege all of the
essential elements of the charged offense of statutory rape by an authority figure, which
renders his convictions void.
II. Analysis
Generally, “a motion alleging a defect in the indictment, presentment, or
information,” including challenges to the constitutionality of an underlying criminal
statute, must be raised prior to trial. Tenn. R. Crim. P. 12(b)(2)(B). However, “[a] valid
indictment is an essential jurisdictional element, without which there can be no
prosecution.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Accordingly, “at
any time while the case is pending, the court may hear a claim that the indictment,
presentment, or information fails to show jurisdiction in the court or to charge an
offense.” Tenn. R. Crim. P. 12(b)(2)(B).
The Sixth and Fourteenth Amendments to the United States Constitution and
article I, section 9 of the Tennessee Constitution afford an accused the right to be
1
It is the policy of this court to refer to minor victims of sexual offenses by their initials.
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informed of the nature and cause of the accusation against him or her. See State v. Hill,
954 S.W.2d 725, 727 (Tenn. 1997). Generally, a charging instrument is valid if the
information contained therein “provides sufficient information (1) to enable the accused
to know the accusation to which answer is required, (2) to furnish the court adequate
basis for the entry of a proper judgment, and (3) to protect the accused from double
jeopardy.” Id. With the decline of common law offenses and the advent of statutory
offenses, strict pleading requirements are no longer necessary. Id. at 727-28. “Hill and
its progeny leave little doubt that [charging instruments] which achieve the overriding
purpose of notice to the accused will be considered sufficient to satisfy both
constitutional and statutory requirements.” State v. Hammonds, 30 S.W.3d 294, 300
(Tenn. 2000). Moreover, “specific reference to a statute within [a charging instrument]
may be sufficient to place the accused on notice of the charged offense.” State v. Sledge,
15 S.W.3d 93, 95 (Tenn. 2000); see also State v. Carter, 988 S.W.2d 145, 149 (Tenn.
1999). The validity of an indictment is a question of law and, therefore, our review is de
novo. Hill, 954 S.W.2d at 727.
At the time of the offenses, Tennessee Code Annotated section 39-13-532(a)
provided:
Statutory rape by an authority figure is the unlawful sexual
penetration of a victim by the defendant or of the defendant
by the victim when:
(1) The victim is at least thirteen (13) but less than eighteen
(18) years of age;
(2) The defendant is at least four (4) years older than the
victim; and
(3) The defendant was, at the time of the offense, in a position
of trust, or had supervisory or disciplinary power over the
victim by virtue of the defendant’s legal, professional, or
occupational status and used the position of trust or power to
accomplish the sexual penetration . . . .
In the instant case, the presentment in counts one through four charged the
Appellant with statutory rape as follows:
That [the Appellant] heretofore, to-wit: between October 1,
2015, and February 26, 2016, and prior to the finding of this
Presentment, . . . did unlawfully and feloniously sexually
penetrate A. L. K., and A. L. K., at the time of the offense
was thirteen (13) years of age or older but less than eighteen
(18) years of age; and [the Appellant], at the time of the
offense, was in a position of trust, or had supervisory or
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disciplinary power over the victim by virtue of the
[Appellant’s] legal, professional, or occupational status and
used the position of trust or power to accomplish the sexual
penetration, in violation of T.C.A. 39-13-532, a Class C
Felony, all of which is against the peace and dignity of the
State of Tennessee.2
The Appellant contends that the presentment failed to allege that the Appellant
was “at least four (4) years older than the victim,” which is an essential element of the
offense; therefore, his convictions are void. The State concedes that the presentment
omitted an element of the offense of statutory rape by an authority figure. Nevertheless,
the State asserts that the presentment provided the name of the victim, the time of the
offense, and cited the proper statute of the offense. We agree with the State.
Our supreme court has stated that “[a]n omission in an indictment [or presentment]
‘is not a defect so long as the indictment performs its essential constitutional and
statutory purposes.’” State v. Duncan, 505 S.W.3d 480, 490 (Tenn. 2016) (quoting
Dykes, 978 S.W.2d at 529). Further, this court has held that “‘assuming satisfaction of
the constitutional and statutory requirements in Hill, an indictment’s reference to the
pertinent statute will cure the indictment’s omission of an essential element of the
offense.’” State v. Suzanne C. Douglas, No. M2000-01646-CCA-R3-CD, 2001 WL
256129, at *2 (Tenn. Crim. App. at Nashville, Mar. 15, 2001) (quoting State v. Kenneth
D. Melton, No. M1999-01248-CCA-R3-CD, 2000 WL 1131872, at *4 (Tenn. Crim. App.
at Nashville, Aug. 4, 2000)). We conclude that the presentment in the instant case was
sufficient.
III. Conclusion
The judgments of the trial court are affirmed.
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NORMA MCGEE OGLE, JUDGE
2
Since the commission of the instant offenses, the legislature has amended the statutory rape by
an authority figure statute to make the offense a Class B felony. Tenn. Code Ann. § 39-13-532(b).
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