State of Tennessee v. Anderson D. Curry ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
July 8, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9711-CR-00452
Appellee, )
) SHELBY COUNTY
VS. )
) HON. BERNIE WEINMAN,
ANDERSON D. CURRY, ) JUDGE
)
Appellant. ) (Rape of a child)
FOR THE APPELLANT: FOR THE APPELLEE:
A C WHARTON, JR. JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
SHERRY BROOKS CLINTON J. MORGAN
Asst. Public Defender Counsel for the State
-At Trial- 425 Fifth Ave., North
Cordell Hull Bldg., Second Fl.
WALKER GWINN Nashville, TN 37243-0493
Asst. Public Defender
201 Poplar Ave., Suite 201 JOHN W. PIEROTTI
Memphis, TN 38103 District Attorney General
-On Appeal-
THOMAS HOOVER
Asst. District Attorney General
201 Poplar Ave., Suite 301
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted in December 1996 for rape of a child. A Shelby
County jury found him guilty and the trial court sentenced him to twenty years in the
Tennessee Department of Correction. In this appeal as of right, the defendant argues
that the evidence is insufficient to support his conviction and that the trial court erred
when it admitted into evidence a chart depicting the victim’s injuries. The defendant also
argues that his sentence is excessive. After a review of the record and applicable law,
we affirm the judgment of the court below.
Because the defendant has challenged the sufficiency of the evidence, a
detailed account of the facts is necessary. In September of 1996, the victim, C.R.1 was
living with her mother, her younger sister, and her mother’s boyfriend, the defendant.
C.R. testified that on Sunday, September 15, 1996, she and her sister had been at home
with the defendant while their mother was at work. She stated that she had planned to
take a bath and then go to the store with some friends. She went into the room shared
by her mother and the defendant so that she could get a towel. When she entered the
room, the defendant asked her to play a card game with him. She agreed but when she
started to leave, the defendant asked her to watch television with him and then began
tickling her.
C.R. testified that after the tickling, the defendant pulled her on top of him.
He then asked her, “Want to do this?” and she said “No.” She said she knew what “this”
meant because the defendant had pulled her on top of him. She testified that the
defendant had then “pulled [her] pants out of the way and stuck his penis into [her]
1
The policy of this Court is to withhold the identity of young children involved in sexual abuse
cases , identifying them only by their initials. See State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn.
Crim. App. 1989).
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vagina.” She also stated that it had hurt when the defendant did this. However, she
testified that she had not seen the defendant’s penis nor had she seen him unzip his
pants. She testified that she was not sure the defendant had penetrated her with his
penis but that she knew something had been put inside of her and that the defendant had
done it.
Following this incident, C.R. took a bath. She then left the house to meet
a friend. When she met her friend, C.R. told her what had happened, and she and her
friend decided to go to a nearby police station. At the station, she told officers what had
happened and she was taken to a nurse for an examination.
On cross-examination, C.R. testified that she had first met the defendant
in June of that year. She said he had several pieces of furniture in her house but she
denied getting angry when the defendant told her he had planned to remove the furniture.
She further denied arguing with the defendant on the day of the incident about house
cleaning duties. However, she did testify that she and the defendant had argued on a
previous occasion about that topic.
C.R. further testified that the defendant had stayed with her and her sister
on several occasions. She also stated that when she left the house after taking her bath,
she left her sister at the house. She said that the defendant had never before touched
her in an inappropriate way.
Sandra Anderson, a family nurse practitioner and sexual assault nurse
examiner for the city of Memphis, testified that she had examined C.R. on September 15,
1996. She performed a physical exam and took C.R.’s statement about the incident.
The examination revealed slight bleeding and a laceration in an area below the hymen.
Anderson explained that the bleeding meant that a trauma or acute injury had occurred
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within the past twenty-four hours to that area. She further testified that she was unable
to say exactly what had caused the trauma but that she could say it had been caused by
some form of penetration to that area. However, she testified that she had found no
traces of semen on C.R.
Anderson further testified that C.R. had “notches” or “interruptions in the
integrity of the hymen” that could have been the result of penetration. However,
Anderson stated that the notches could have been caused prior to the time of this
incident. She further explained that her examination had revealed rolled hymenal tissue
which indicates some prior trauma to the area that had scarred and healed. She said this
injury could have been caused by an acute injury and not necessarily by penetration.
The defendant now argues that the State failed to present sufficient
evidence of sexual penetration. A defendant challenging the sufficiency of the proof has
the burden of illustrating to this Court why the evidence is insufficient to support the
verdict returned by the trier of fact in his or her case. This Court will not disturb a verdict
of guilt for lack of sufficient evidence unless the facts contained in the record and any
inferences which may be drawn from the facts are insufficient, as a matter of law, for a
rational trier of fact to find the defendant guilty beyond a reasonable doubt. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in determining
whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to
afford the State the strongest legitimate view of the proof contained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v.
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Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved
by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
“Sexual penetration” is statutorily defined as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part
of a person’s body or of any object into the genital or anal openings of the victim’s, the
defendant’s, or any other person’s body, but emission of semen is not required.” T.C.A.
§ 39-13-501(7). In this case, C.R. initially testified that the defendant had “stuck his penis
into [her] vagina.” She later stated that she was not completely sure that it had been the
defendant’s penis that had penetrated her but that she knew something had been put
inside of her. Anderson’s testimony corroborated C.R.’s testimony that she had been
penetrated. Anderson found slight bleeding and a recent tear near C.R.’s hymen. W hile
she could not identify the cause of the tear and bleeding, she said that the injury certainly
could have been caused by some form of penetration to that area.
We find this evidence to be entirely sufficient. That C.R. could not definitely
say that she had been penetrated by the defendant’s penis is of no consequence. She
could definitely state that she had been penetrated by something and that the defendant
had caused the penetration. In addition, physical evidence showed a recent injury to
C.R.’s vaginal area. This evidence is certainly sufficient to satisfy the definition of “sexual
penetration.” The defendant does not challenge any other element of the crime. Thus,
we find no merit to his sufficiency challenge.
5
The defendant next argues that the trial court erred when it admitted into
evidence a diagram of C.R.’s genital area. The defendant argues that because the chart
also showed past injuries that may have been caused by penetration, the chart was
prejudicial and its introduction deprived him of a fair trial.
The chart depicted the “notches” Anderson described during her testimony.
It also indicated the bleeding and the rolled hymenal tissue. While Anderson testified that
the notches and rolled hymenal tissue were caused by previous injuries, she could not
state the nature of this injury. The defendant argues that the chart left the jury with the
impression that C.R. had been penetrated before and that he had been the one to do so.
To the contrary, Anderson did not say the previous injuries were caused by penetration.
Furthermore, C.R. testified that the defendant had never before touched her in an
inappropriate manner. Thus, we find no error in admitting the chart into evidence. Also,
as pointed out above, the evidence is entirely sufficient to convict the defendant of rape
of a child. Thus, if there were an error in admitting the chart, it was certainly harmless
beyond a reasonable doubt. T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).
As his final issue, the defendant argues that his sentence is excessive. The
trial court sentenced him as a Range I standard offender to twenty years imprisonment,
the presumptive sentence in that range. When a defendant complains of his or her
sentence, we must conduct a de novo review with a presumption of correctness. T.C.A.
§ 40-35-401(d). The burden of showing that the sentence is improper is upon the
appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. 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).
A portion of the Sentencing Reform Act of 1989, codified at T.C.A.
6
§ 40-35-210, established a number of specific procedures to be followed in sentencing.
This section mandates the court’s consideration of the following:
(1) The evidence, if any, received at the trial and the
sentencing hearing; (2) [t]he presentence report; (3) [t]he
principles of sentencing and arguments as to sentencing
alternatives; (4) [t]he nature and characteristics of the criminal
conduct involved; (5) [e]vidence and information offered by
the parties on the enhancement and mitigating factors in §§
40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
T.C.A. § 40-35-210.
In addition, this section provides that the midpoint of the appropriate range
is the presumptive sentence for Class A felonies. If there are enhancing and mitigating
factors, the court must start at the presumptive sentence 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 presumptive in that range but still within the range. The
weight to be given each factor is left to the discretion of the trial judge. State v. Shelton,
854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The Act further provides that “[w]henever the court imposes a sentence, it
shall place on the record either orally or in writing, what enhancement or mitigating factors
it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A.
§ 40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating
factors under the sentencing guidelines, even the absence of these factors must be
recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial
judge must be recorded in order to allow an adequate review on appeal.
The defendant specifically argues that the trial court erred when it failed to
7
consider two mitigating factors, that he had been gainfully employed as a security guard
and that he had never before been convicted of a felony. He also argues that the trial
court erroneously applied several enhancement factors.
The defendant was the only person to testify at the sentencing hearing. He
testified that he had been employed as a security patrol for CDA Security for the two and
a half years prior to his arrest. He also stated that he had served in the Army for three
years and had received an honorable discharge. His prior record included two DUI
convictions and at least two other driving offenses. However, the record revealed no prior
felonies. The defendant explained that he was on probation for DUI at the time of his
arrest in this case. His arrest resulted in a violation of that probation. The defendant
further testified that he was sorry about what had happened to C.R. However, he
continued to deny having raped her.
Following the hearing, the trial judge announced that he found no mitigating
factors but that he did find five enhancement factors. The defendant now argues that the
trial court should have considered his work history and his lack of felony convictions as
mitigating factors. As this Court has noted before, “Every citizen in this state is expected
to have a stable work history if the economy permits the citizen to work, the citizen is not
disabled, or the citizen is not independently wealthy.” State v. Keel, 882 S.W.2d 410, 423
(Tenn. Crim. App. 1994). Thus, we see no reason why the trial court should have
considered the defendant’s two and one-half years of employment as a mitigating factor.
Likewise, we can find no justification for mitigating his sentence based on his lack of
felony convictions. Not only is every citizen expected to have a stable work history, but
also is expected to refrain from committing any type of crime. We can find no merit to the
defendant’s argument.
The trial court found the following enhancement factors from T.C.A.
8
§ 40-35-114: that the defendant has a previous history of criminal convictions or criminal
behavior (1); that the offense involved a victim and was committed to gratify the
defendant’s desire for pleasure and excitement (7); that the defendant has a previous
history of unwillingness to comply with the conditions of a sentence involving release in
the community (8); that the felony was committed while the defendant was on probation
(13); and that the crime was committed under circumstances under which the potential for
bodily injury to a victim was great (16). The defendant challenges the application of all the
above with the exception of factor one. This factor clearly applies as the defendant has
been convicted of DUI twice and has at least two other driving related convictions.
As for factors eight and thirteen, the State concedes that these factors are
not applicable. The defendant’s previous convictions were for misdemeanors only, and
factor thirteen requires a defendant to have been on release status from a prior felony
conviction. Similarly, there was no evidence that the defendant did not comply with the
conditions of his probation. His final appointment with his probation officer was missed
because he was incarcerated. We agree with the defendant and the State that these two
factors were erroneously applied.
We also find that the trial court erroneously applied factor seven, that the
offense involved a victim and was committed to gratify the defendant’s desire for pleasure
or excitement. While this factor may be applied in rape cases, the State has “the burden
of demonstrating that the rape was sexually motivated (done to gratify the Defendant's
desire for pleasure or excitement),” which the State did not do in this case. State v.
Adams, 864 S.W.2d 31, 35 (Tenn. 1993).2 Thus, this factor cannot apply.
2
The State’s brief argues that this factor should be applied because “[t]here is no other apparent
reason for [the defendant’s] actions.” To the contrary, there could be an infinite number of other reasons
and we remind the State that if the State wishes to rely on this or any other factor, the State must offer
evidenc e, not con clusory sta teme nts, in sup port of its arg ume nt.
9
As to factor sixteen, that the offense was committed under circumstances
under which the potential for bodily injury to the victim was great, we find that this factor
was also erroneously applied. While the nurse practitioner did testify that C.R. had some
evidence of an injury, the penetration by the defendant did not pose great potential for
bodily injury nor were the injuries suffered by C.R. particularly great. See State v. Carico,
__ S.W.2d __ (Tenn. 1997); State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.
1996)(rejecting this factor where a young boy had been orally and anally penetrated).
The State suggests that enhancement factor four, that the victim was
particularly vulnerable, and factor fifteen, that the defendant abused a position of private
trust should have been applied. While the better practice is for the trial court to carefully
consider all relevant and possible sentencing factors, this Court is authorized to consider
any enhancement (or mitigating) factors supported by the record. Adams, 864 S.W.2d
at 34. As to factor four, the Supreme Court has stated that “vulnerability enhancement
relates more to the natural physical and mental limitations of the victim than merely to the
victim's age.” Adams, 864 S.W.2d at 35. In order for this factor to be applied, the State
must offer some proof as to how this victim was particularly vulnerable. Because the
State failed to do so, its suggestion that this factor be applied is misplaced.
We do, however, agree with the State that the trial court should have applied
factor fifteen, that the defendant abused a position of private trust. C.R. testified that her
mother had left her and her sister in the defendant’s care and that the defendant had
stayed alone with the two girls on previous occasions. The Supreme Court has explained
that in applying this factor, a court must determine “whether the offender formally or
informally stood in a relationship to the victim that promoted confidence, reliability, or
faith.” Kissinger, 922 S.W.2d at 488. C.R.’s mother had entrusted the defendant with the
care of her two daughters, and the defendant had served in this role prior to this incident.
Thus, it is clear that the defendant abused his position of private trust. Enhancement
1 0
factor fifteen should have been applied.
In summary, we find that the applicable enhancement factors are factor one,
that the defendant has a previous history of criminal convictions or behavior, and factor
fifteen, that the defendant abused a position of public trust. T.C.A. § 40-35-114. We
further find that no mitigating factors are applicable. T.C.A. § 40-35-113. The trial court
had sentenced the defendant to twenty years, the presumptive sentence for a Class A
felony, despite the court’s application of four enhancement factors. While the application
of three of the factors was erroneous, we cannot find that sentencing the defendant to the
presumptive sentence was an abuse of discretion. Thus, we affirm the defendant’s
sentence of twenty years in the Tennessee Department of Correction.
For the foregoing reasons, the judgment of the court below is affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
_______________________________
PAUL G. SUMMERS, Judge
_______________________________
THOMAS T. W OODALL, Judge
1 1