State of Tennessee v. Ronald Paul

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 19, 1997
• Docket: 01C01-9511-CC-00358
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE MAY SESSION, 1997 FILED September 19, 1997

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9511-CC-00358 Appellee ) ) ROBERTSON COUNTY vs. ) ) Hon. ROBERT W. WEDEMYER, Judge RONALD PAUL, ) ) (Three counts of rape; one count of Appellant ) agg. sexual battery; two counts of sexual battery)

For the Appellant: For the Appellee:

FRED WARREN LOVE CHARLES W. BURSON Asst. District Public Defender Attorney General and Reporter 109 South Second Street Clarksville, TN 37040 MERRILYN FEIRMAN Assistant Attorney General Criminal Justice Division MICHAEL R. JONES 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493

JOHN WESLEY CARNEY, JR. District Attorney General

DENT MORRISS Asst. District Attorney General 507 Public Square Springfield, TN 37172

OPINION FILED:

AFFIRMED

David G. Hayes Judge OPINION

The appellant, Ronald Paul, appeals as of right from his convictions of

three counts of rape, one count of aggravated sexual battery, and two counts of

sexual battery. The trial court imposed an effective sentence of thirty-two years.

The appellant’s sole issue on appeal is whether the testimony of a nurse

practitioner, which identified the appellant as the perpetrator of sex offenses

upon the victim, was error.

After a review of the record, we affirm the trial court’s judgment.

The appellant’s convictions stem from the perpetration of sex offenses

upon his step-daughter, DD.1 The jury found that the appellant raped and

sexually abused his step-daughter over a period of approximately four years.

The victim was eleven years old when the sexual assaults began. The

overwhelming evidence in support of this verdict included incriminating

statements from a taped phone conversation between the victim and the

appellant.2 The proof relevant to the issue before us established that the victim

was referred for medical examination to a Nashville clinic which specializes in

child sexual abuse cases. As part of the examination, the victim’s mother

provided information to a social worker at the clinic which identified the appellant

as the perpetrator of the alleged sex offenses. This medical history was then

made available to the nurse practitioner who performed a physical examination

1 It is this co urt’s policy to us e the initials of m inors involved in se xua l abus e in ord er to prote ct their identity. See State v. Schimpf, 782 S.W .2d 186, 188 n.1 (T enn. Crim . App. 1989).

2 After the appellant was arrested on charges of aggravated rape, sexual battery, and incest, he arranged to have the victim and her m other “done away with.” He solicited an undercover agent from the Tennessee Bureau of Investigation to murder his wife and step- daughter for a total of one thousand dollars. The agent was supposed to collect the money from the appellant’s eighty-one year old mother who was also aware of the plan. The TBI agent recorde d the entire p hon e co nversation he had with the app ellant conc erning the solicitation . However, the evidence indicates that the appellant soon learned he had contracted with an undercover TBI agent to accomplish the murders. Consequently, he withdrew his request. Since the appellant canceled the plan before he had taken a substantial step toward its completion, he was not charged with this crime.

2 of DD. Based upon these circumstances, the appellant contends that the

testimony at trial of the nurse practitioner identifying the appellant as the

perpetrator was error.3

The State argues that the appellant’s claim is procedurally defaulted for

two reasons. First, the appellant failed to contemporaneously enter an objection

to the testimony on the basis which he now challenges on appeal. Objections

must be specific as to the grounds upon which they are based. State v.

Weeden, 733 S.W.2d 124, 125-126 (Tenn. Crim. App. 1987); See also Rule

103(a)(1), Tenn. R. Evid. The appellant objected to the nurse practitioner’s

testimony only because she did not speak directly to the victim’s mother.4 On

appeal, the appellant objects to the testimony on the ground that the testimony

identified the appellant as the perpetrator. Second, in his motion for a new trial

the appellant raised seven issues, none of which include the hearsay issue he

now raises on appeal. Tenn. R. App. P. 36(a) specifically directs that relief on

appeal need not be granted “to a party responsible for an error or [to a party]

who failed to take whatever action was reasonably available to prevent or nullify

the harmful effect of an error.” See also State v. Caughron, 855 S.W.2d 526,

538 (Tenn. 1993). We agree.5

3 The appellant argues that the testimony of the nurse practitioner falls neither within the “business records” exception nor the “medical diagnosis and treatment” exception to the hearsay rule.

4 The record reflects that when the nurse practitioner, Rosof, began her testimony concerning DD’s medical history, counsel for the appellant asked, “Judge, can I find out if she took this history or if someone else did?” After Ms. Rosof informed the appellant’s counsel that DD’s mother gave the information to a trained social worker from the clinic, counsel stated, “I guess I have an objection because she [Nurse Rosof] didn’t actually talk to the person [DD’s mother] who gave the history unless it was a child.” Clearly, the appellant’s objection was not on the basis that this testimony identified him as the perpetrator of DD’s abuse.

5 Notwithstanding the fact that the appellant has waived the hearsay issue, we find that the evidence is admissible under both the “medical records” exception to hearsay, Tenn. R. Evid. 803 (4) and the “bu siness reco rds” exc eption to the h ears ay rule, T enn . R. Evid. 803(6). See State v. Livingston, 907 S.W .2d 392, 397 (T enn . 1995); State v. Rucker, 847 S.W .2d 512, 519 (Tenn. Crim . App . 1992); State v. Hunter, C.C.A. No. 01C01-9410-CR-000335 (Tenn. Crim. App. at Nashville, Nov. 25, 1995). Moreover, the record reflects that both the victim and her m other testified at trial abo ut the con tents of this repo rt.

3 Accordingly, the judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

_________________________________ PAUL G. SUMMERS, Judge

_________________________________ JERRY L. SMITH, Judge