State v. Rema Morgan ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1999 SESSION
March 10, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-CR-00123
)
Appellee ) CAMPBELL COUNTY
)
v. ) HON. LEE ASBURY, JUDGE
)
REMA LYNN MORGAN, ) (Attempted aggravated rape)
)
Defendant/Appellant )
FOR THE APPELLANT: FOR THE APPELLEE:
Martha Yoakum John Knox Walkup
District Public Defender Attorney General & Reporter
Eighth Judicial District
Ellen H. Pollack
Charles Herman Assistant Attorney General
Assistant District Public Defender Criminal Justice Division
P.O. Box 337 425 Fifth Avenue North
Jacksboro, TN 37757 Nashville, TN 37243
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
The defendant was convicted of attempted aggravated rape and sentenced
to serve 25 years as a range 3 persistent offender. 1
The defendant says the evidence is insufficient to support the conviction and
that the trial judge erred in finding him to be a persistent rather than a multiple
offender.
The judgment of the trial court is affirmed.
On January 17, 1997, a young woman was traveling on I-75 with her
husband. When they reached Caryville in Campbell County, they stopped at a
Shoney’s restaurant so the woman could go to the bathroom.
The woman entered the women’s bathroom in the restaurant at
approximately 10:00 p.m. Just moments after this, the manager, employees, and
customers heard screams coming from the bathroom. The manager and some of
the employees ran to investigate.
The almost consistent statements of these witnesses was that when they
entered the bathroom they saw the defendant standing over the woman. Some of
the witnesses observed the defendant strike the woman and others saw him push
her down onto a commode when she tried to escape. Some of the employees
testified the man’s trousers and underwear were down to his knees. Others saw the
defendant buckling his belt when they entered.
The woman testified that as she started to leave the stall she had used the
defendant was in the stall door disrobed from the waist down to his knees and that
he shoved her back into the stall. She testified that the defendant struck her several
times and that she fought to escape. The attack continued until she was rescued by
two men who entered the restaurant.
1
The defendant was also convicted of aggravated kidnapping, but the trial
judge dismissed that conviction because it was a part of the attempted aggravated
rape.
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There was no evidence introduced to refute the State’s evidence.
SUFFICIENCY OF THE EVIDENCE
The defendant’s main argument on the matter of the sufficiency of the
evidence is that before a person can be convicted of an attempt to commit a crime
he must be shown to have acted in such a way as to show his conduct constituted a
substantial step towards the commission of the offense as defined in Tenn. Code
Ann. § 39-12-101. He argues that under subsection (a)(3) conduct does not
constitute a substantial step unless the person’s entire course of action is
corroborative of the intent to commit the crime.
The evidence as set out above shows the conduct of the defendant.
Furthermore, the woman received cuts and bruises from the blows and physical
violence inflicted on her by the defendant. This constitutes a substantial step
towards commission of the crime.
The evidence to convict must be sufficient for a rational trier of fact to find the
defendant guilty of the offense upon which a conviction is had. Jackson v. Virginia,
443 U.S. 307 (1979). In our view of the evidence, it is clear the defendant assaulted
this woman with the clear intent to rape her. He was stopped by the intervention of
other people. It would, in our opinion, require an unreasonable trier of fact to find
otherwise.
The evidence is sufficient to support the verdict.
SENTENCING
The sentencing range for a range 3 persistent offender is 20 years to 30
years. The trial judge found that the defendant’s record placed him in the persistent
offender classification and that certain enhancing factors justified an elevation of the
sentence from 20 years to 25 years. Only the classification, not the enhancement,
is at issue in this case.
The defendant contends he should be classified as a multiple offender rather
than a persistent offender. He contends he has no more than four prior convictions
within the class or range of the convicting offense and he is thus to be sentenced
under Tenn. Code Ann. § 40-35-106 as a multiple offender.
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The record shows the defendant had prior convictions in the state of Georgia
for rape, a class B felony; aggravated assault, a class C felony; and armed robbery,
a class B felony. The record also shows the defendant had a conviction for robbery
in Kentucky, which is a class C felony. The defendant was convicted also of a class
E felony of theft in Kentucky.
When the assistant district attorney was making argument to the court on the
two Kentucky convictions, he spoke of a conviction in Kentucky for second degree
assault, which is a class E felony in Kentucky. The State introduced the statute of
second degree assault showing that offense to be described essentially the same as
the second degree assault statute in Tennessee, which under our law is a class C
felony. For sentencing purposes, this is to be considered as a class C felony in our
courts.
The defendant in this case was convicted of a class B felony. He has prior
convictions of two class B felonies and three class C felonies. He falls therefore
under Tenn. Code Ann. § 40-35-107(1) because he has five or more felonies within
the definition in subsection (a)(1) of a persistent offender and the trial judge properly
sentenced him.
The judgment of the trial court is affirmed. It appearing that the defendant is
indigent, costs of the appeal are taxed to the State.
John K. Byers, Senior Judge
CONCUR:
James Curwood W itt, Jr., Judge
Norma McGee Ogle, Judge
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