State v. Kidd ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
December 23, 1997
MAY 1997 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9607-CC-00272
)
vs. ) Anderson County
)
RICHARD ALLEN KIDD II, ) Hon. James B. Scott, Jr., Judge
)
Appellant. ) (Rape)
FOR THE APPELLANT: FOR THE APPELLEE:
J. THOMAS MARSHALL, JR. JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
NANCY MEYER CLINTON J. MORGAN
Asst. District Public Defender Assistant Attorney General
101 S. Main St., Ste. 450 Criminal Justice Division
Clinton, TN 37716 450 James Robertson Parkway
Nashville, TN 37243-0493
JAMES N. RAMSEY
District Attorney General
JANICE G. HICKS
Asst. District Attorney General
127 Anderson Co. Courthouse
Clinton, TN 37716
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendant, Richard Allen Kidd II, appeals his conviction of rape
following a jury trial in Anderson County Criminal Court. Kidd is currently serving a
ten year sentence for his crime in the Department of Correction. In this direct
appeal, he raises three issues for our consideration:
1. Whether the indictment is fatally insufficient in that it does not
contain an allegation of the requisite mental state.
2. Whether the trial court erred in allowing the state's exhibits to
be published to the jury where they were never formally
introduced by motion into evidence.
3. Whether the trial court erred in imposing a ten year sentence.
Following a review of the record and the briefs of the parties, we affirm the judgment
of the trial court.
At trial, the state's evidence1 established that Kidd and the victim2
dated and lived together. By all accounts, the two had a stormy, physically violent
relationship. At the time of the offense, the victim was dating someone else. She
and Kidd were no longer living together, and although he had spent the night at her
trailer home on some occasions since their breakup, she had informed him he was
no longer welcome prior to the events that form the basis for his conviction.
In the early morning hours of November 30, 1994, the victim awoke
to find Kidd in her home. The victim noticed Kidd was intoxicated. She asked him
to leave, but Kidd made advances toward her. A protracted struggle ensued, with
both parties receiving injuries. Ultimately, Kidd vaginally raped the victim. After the
attack, Kidd fell asleep or passed out, and the victim, who did not have a telephone,
escaped her trailer and went to a grocery store, where she called 911 and alerted
the authorities to the crime that had just occurred. Responding officers found Kidd
asleep or passed out in the victim's home and took him into custody.
1
The defendant has not challenged the sufficiency of the convicting
evidence.
2
The victim's name is not pertinent to this appeal.
2
I
In an issue raised for the first time on appeal, Kidd questions whether
the indictment against him sufficiently alleges the crime of rape. He relies on this
court's opinion in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim.
App., Nashville, June 20, 1996), perm. app granted (Tenn., Jan. 6, 1997) and State
v. Nathaniel White, No. 03C01-9408-CR-00277 (Tenn. Crim. App., Knoxville, June
7, 1995). Since the filing of the defendant's brief, our supreme court has reversed
this court's decision in Hill. See State v. Hill, --- S.W.2d ---, No. 01-S-01-9701-CC-
00005 (Tenn. Nov. 3, 1997).
The question raised in Hill is whether a charging instrument which
charges a defendant with a crime that by its statutory terms does not expressly
require a culpable mental state is legally sufficient under the Sentencing Reform Act
of 1989, where the instrument does not allege a culpable mens rea. Hill, --- S.W.2d
at ---, slip op. at 2. The Sentencing Reform Act of 1989 requires a culpable mental
state in order to establish an offense unless the statutory definition of the crime
"plainly dispenses with a mental element." Tenn. Code Ann. § 39-11-301(b) (1997).
The supreme court in Hill said that a charging instrument which does
not allege a culpable mental state, the statutory definition of the crime not plainly
dispensing with a mental element, is nevertheless sufficient to support prosecution
where
(1) the language of the indictment is sufficient to meet the
constitutional requirements of notice to the accused of the charge
against which the accused must defend, adequate basis for entry of
a proper judgment, and protection from double jeopardy;
(2) the form of the indictment meets the requirements of Tenn.
Code Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the conduct
alleged.
Hill, --- S.W.2d at ---, slip op. at 3. The supreme court scrutinized the Hill indictment
under the three-part inquiry above and determined the indictment was legally
sufficient to support prosecution of the accused, notwithstanding the absence of an
3
explicit allegation of a mens rea. Hill, --- S.W.2d at ---, slip op. at 4-10. Specifically,
the supreme court noted, "[T]he act for which the defendant is indicted, 'unlawfully
sexually penetrat[ing]' a person under the age of thirteen, is committable only if the
principal actor's mens rea is intentional, knowing or reckless. Thus, the required
mental state may be inferred from the nature of the criminal conduct alleged." Hill,
--- S.W.2d at ---, slip op. at 9.
We find the case at bar very similar under the Hill analysis. The
statute proscribing the offense does not require a specific culpable mental state.
See Tenn. Code Ann. § 39-13-503(a)(1) (1997). The indictment in this case alleges
the defendant "unlawfully and forcibly engage[d] in unlawful sexual penetration of
[the victim], in violation of T[ennessee] C[ode] A[nnotated section] 39-13-503,
against the peace and dignity of the State of Tennessee."3 In pertinent part, "Rape
is unlawful sexual penetration of a victim by the defendant . . . accompanied by
force or coercion . . . to accomplish the act . . . ." Tenn. Code Ann. § 39-13-
503(a)(1) (1997).
The indictment in this case closely follows the statutory language
describing the crime. It complies with the statutory form by stating the "facts
constituting the offense in ordinary and concise language, without prolixity or
repetition, in such a manner as to enable a person of common understanding to
know what is intended, and with that degree of certainty which will enable the court,
on conviction, to pronounce the proper judgment . . . ." See Tenn. Code Ann. § 40-
13-202 (1997); Hill, --- S.W.2d at ---, slip op. at 3. Further, the mental state is
capable of logical inference from the conduct alleged. See Hill, --- S.W.2d at ---, slip
op. at 3; see also State v. Marshall, 870 S.W.2d 532, 537-38 (Tenn. Crim. App.
1993). As the supreme court noted in Hill, the allegation of "unlawfully sexually
penetrat[ing]" a victim necessarily requires an intentional, knowing or reckless mens
3
The language of this indictment is virtually identical to the language of the
indictment in Hill, though the defendant in Hill was indicted for aggravated rape
and Kidd was indicted for rape.
4
rea. Hill, --- S.W.2d at ---, slip op. at 9. Therefore, the allegation raises an
inference of the required mental state. Hill, --- S.W.2d at ---, slip op. at 9.
Accordingly, the indictment satisfies the three Hill requirements for
sufficient allegations to support prosecution. See Hill, --- S.W.2d at ---, slip op. at
3. Kidd is not entitled to relief on this basis.
In passing, we note that Nathaniel White, relied upon by the
defendant, is not applicable. In Nathaniel White, the statute proscribing possession
of marijuana set forth a specific culpable mental state of “knowing”. See Tenn.
Code Ann. § 39-17-418(a) (Supp. 1994). The rationale in Nathaniel White for
dismissing a count that did not allege the possession as knowing is not applicable
to the present case which, like Hill, involves a statute that “omits a reference to a
specific mens rea.” Hill --- S.W.2d at ----, slip op. at 2. Hill controls the result in the
present case.
II
In his second issue, Kidd claims the trial court erroneously allowed the
state's exhibits to be published to the jury without the exhibits having been formally
admitted into evidence. The state makes a variety of waiver arguments4 and
ultimately says any error is no more than harmless.
The record reflects a somewhat relaxed approach to trial practice and
procedure in this matter. During its case-in-chief, the state referred to a variety of
exhibits and had these exhibits marked for identification. The exhibits, including
several photographs, two items of the victim's clothing, and correspondence from
the defendant to the victim, were authenticated by the witness, but the state never
moved that these exhibits be received into evidence. The record reflects that prior
4
We find the state's waiver arguments which relate to the sufficiency of the
defendant's brief on this issue lacking in merit, though we decline to belabor the
point with lengthy analysis.
5
to these exhibits being passed to the jury, the prosecutor requested that the court
allow publication of the exhibits, which the court allowed in each challenged
instance. The defendant offered no objection to this procedure for the first several
exhibits. When defense counsel eventually objected, she acknowledged her failure
to object promptly to publication of the previous exhibits. The court overruled the
objection, explaining that it considered the state's request that the exhibits be
published to the jury sufficient to allow such.
The proper procedure for admission of tangible items of evidence has
been aptly summarized by one commentator:
An attorney who wants to introduce an exhibit at trial should (a) ask
the court reporter or other court officer to mark the exhibit for
identification (exhibits should be marked numerically and sequentially
without reference to the proponent); (b) show the exhibit to adversary
counsel (this should be reflected in the record), thereby giving him the
opportunity to raise objections before foundation questions and
answers suggest inadmissible matter; (c) either obtain the court's
permission to approach the witness to deliver the exhibit for his
inspection, or, if required by court rule, ask that a court official present
the exhibit to the witness; (d) lay the proper foundation for the
admission of the exhibit, including proof of authenticity (in doing so,
leading questions are appropriate because laying a foundation is a
preliminary matter); and (e) then request that the exhibit be introduced
into evidence. If the request for admission is for limited purposes, this
should be stated in the request.
Lawrence A. Pivnick, Tennessee Circuit Court Practice § 24-12, at 703-04 (4th ed.
1995). The jury is entitled to review those exhibits which have been admitted as
evidence in the case. See State v. Ricky Dean Cole, No. 03C01-9604-CC-00171,
slip op. at 5 (Tenn. Crim. App., Knoxville, July 29, 1997) (inadvertent publication to
jury of exhibit marked for identification only was harmless error); Waits v. Dalton,
No. 01-A-01-9407-CV-00317 (Tenn. App., Middle Section, Jan. 27, 1995) (exhibits
marked for identification only were properly excluded from exhibits given to jury for
use in deliberations). Those principles notwithstanding, objection to introduction
of evidence is waived absent a contemporaneous objection to its admission. Tenn.
R. Evid. 103(a)(1).
We find that the defendant waived any objection to the irregularity to
6
the extent contemporaneous objections were not interposed to the state's motions
to publish the exhibits to the jury. Further, to the extent the defendant offered a
timely objection, we find the trial court's irregular procedure for receiving evidence
falls short of an abuse of its discretion in such matters. See, e.g., State v.
Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994) (trial court's decision regarding
admissibility of evidence will not be disturbed on appeal absent an abuse of
discretion).
Additionally, we reject the defendant's argument that any alleged error
was so egregious as to deprive the defendant of his right to a fair and impartial jury
trial and resulted in such prejudice to the judicial process that reversal is required.
Any arguable error by the trial court was harmless. The defendant has made no
showing that any of the exhibits which were published to the jury were inadmissible
under the Rules of Evidence. As such, we find no reversible error in the
proceedings as to this issue.
III
In his final issue, Kidd complains of the trial court's application of
enhancement factors and failure to find certain mitigating factors in sentencing him
to a mid-range ten year incarcerative term.
When a defendant challenges the sentence imposed by the trial court,
this court engages in a de novo review of the record with a presumption the trial
court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption 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). In conducting
our de novo review, we must consider the evidence at sentencing, the presentence
report, the sentencing principles, the arguments of counsel, the statements of the
defendant, the nature and characteristics of the offense, any mitigating and
7
enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code
Ann. § 40-35-210(b) (1997); Ashby, 823 S.W.2d at 168. On appeal, the appellant
has the burden of showing the sentence imposed is improper. Tenn. Code Ann. §
40-35-401(d), Sentencing Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.
The record in this case fails to demonstrate that the trial court
considered the principles of sentencing as well as the relevant facts and
circumstances. Moreover, the trial court failed to place on the record any
enhancement and mitigating factors it found, as required by the Sentencing Act.
See Tenn. Code Ann. § 40-35-210(f) (1997). It is necessary for the trial court to
note its findings relative to these principles and factors affirmatively on the record
in order for this court to undertake meaningful review of the propriety of the
defendant's sentence. Because the court did not do so, we conduct our review de
novo unaccompanied by the presumption of correctness.
Kidd stands before the court a Range I offender convicted of a Class
B felony. As such, he faces a sentence of eight to twelve years. By his own
admission, he has prior convictions for reckless driving and DUI. In addition, there
is evidence of other criminal conduct by the defendant, including drug use. As such,
enhancement factor (1), "the defendant has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the
appropriate range" applies. See Tenn. Code Ann. § 40-35-114(1) (1997).
Likewise, there is evidence "[t]he defendant has a previous history of unwillingness
to comply with the conditions of a sentence involving release into the community,"
his presentence report reflecting a probation violation that was unchallenged at the
sentencing hearing. Factor (8) applies. See Tenn. Code Ann. § 40-35-114(8)
(1997).
Turning to the mitigating factors, we reject the defendant's argument
he lacked substantial judgment in committing the offense due to his youth. See
8
Tenn. Code Ann. § 40-35-113(6) (1997). Our supreme court has noted that in
passing on the propriety of this factor, "courts should consider the concept of youth
in context, i.e., the defendant's age, education, maturity, experience, mental
capacity or development, and any other pertinent circumstance tending to
demonstrate the defendant's ability or inability to appreciate the nature of his
conduct." State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). The defendant was
22 at the time of his crime. Though he is lacking in formal education, having quit
school in the seventh grade, there has been no showing of any deficiency in
maturity, mental capacity or other circumstance which might reflect on his ability to
exercise "substantial judgment" and appreciate the nature of his action.
Additionally, Kidd was experienced beyond his years with the criminal justice
system. We decline to apply this factor.
The defendant also claims the court should have mitigated his
sentence because he was a victim of child abuse. Tenn. Code Ann. § 40-35-
113(13) (1997). The evidence relating to physical abuse by the defendant's father
when he was an infant and toddler and physical and verbal abuse by his stepfather,
as well as the defendant's appellate argument in this regard, fail to convince us that
this factor should be applied. It is noteworthy that despite the history of alleged
abuse at the hands of the defendant's stepfather, his evidence at the sentencing
hearing was that he would live within the same household as the stepfather if not
sentenced to incarceration. This causes the court to question the existence,
severity, or deleterious effects of the alleged abuse. Moreover, there is, at best,
minimal evidence that the defendant's crime is somehow related to the child abuse
he alleges he suffered. As such, we decline to mitigate his sentence based upon
this factor.
In mitigation of the offense, the trial court appears to have relied on
the fact that the victim and the defendant had a physically violent relationship. Even
if we were to accept the defendant's evidence at face value as to the on-going
9
nature of the relationship and the victim's participation in domestic violence, there
is absolutely no evidence tending to mitigate the sexual assault the defendant
perpetrated on the victim. At most, the victim may have injured the defendant by
grabbing and scratching his penis during the struggle that took place on the date in
question, but rape was by no means a justified response. Unlike the trial court, we
decline to mitigate the defendant's sentence based upon this factor.
Bearing in mind all the matters that are to be considered, including the
statutory principles of sentencing and the facts and circumstances of this case, we
believe the enhancement factors are entitled to substantial weight. Coupled with
the absence of applicable mitigating factors, we believe Kidd justly deserves more
than a minimum sentence for his crime. Ultimately, we agree with the trial court that
a ten year sentence is appropriate,5 though we have departed from the trial court's
rationale in reaching this conclusion.
In conclusion, we find all of Kidd's issues lacking in merit. The
judgment of the trial court is affirmed.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
JOSEPH B. JONES, PRESIDING JUDGE
_______________________________
JOSEPH M. TIPTON, JUDGE
5
Having received a sentence greater than eight years, Kidd is not entitled
to consideration of a probationary sentence. Tenn. Code Ann. § 40-35-303(a)
(1997).
10