State v. Brown

749 S.W.2d 474, 1987 Tenn. Crim. App. LEXIS 2746
Court of Criminal Appeals of Tennessee·Decided November 19, 1987·Published·Cited by 1 cases

Opinion

OPINION

BIRCH, Judge.

Jerome Brown was convicted by the Criminal Court of Hamilton County, the Honorable Douglas A. Meyer, Judge, of aggravated rape, robbery accomplished by the use of a deadly weapon, and burglary first degree. He was sentenced to terms of sixty (60) years each on aggravated rape and robbery charges, and fifteen (15) years on burglary first degree. The trial judge ordered the rape and robbery sentences to be served consecutively to each other and consecutively to a prior life sentence. The burglary sentence was ordered to be served concurrently with the aggravated rape and robbery sentences.

He appeals as of right, raising evidentia-ry issues and sentencing issues. Specifically, defendant contends that:

1. The evidence is not sufficient to support the verdict of the jury;

2. The serologist’s testimony should have been excluded; and

3. The sentences were not justified by the evidence.

We have carefully reviewed these issues. We affirm.

SUFFICIENCY OF THE EVIDENCE

Summarizing the evidence, late on the evening of July 2, 1986, a female victim heard a loud sound in her kitchen. She was immediately confronted by a man at her bedroom door. He demanded money. When she stated that she had no money, he demanded jewelry. She removed two rings from her fingers and handed them to him. He continued to threaten her and demand money. He forced her to the floor in her children’s bedroom, got on top of her and began disrobing himself. The victim refused to disrobe, whereupon she was struck on the lip. He then proceeded to disrobe her and to have sex with her. After making more threats, he left. Though able to describe the assailant, she could not swear that the defendant was the assailant.

Officer Poteet was directed to the area of a Goodwill Store a few blocks from the victim’s home to check on a report of suspicious persons. He found Robert Boyd there and decided to arrest him. Before accomplishing the arrest, he heard a burglary-in-progress call on his radio. He dismissed Boyd and responded to the call, which involved the victim’s residence. His investigation at the residence revealed that a black male had been involved in the burglary/rape. He then sought to apprehend Boyd, whom he suspected, and broadcast a description of the car Boyd was in, a 1973 Cutlass.

[476]*476In addition to other evidence found at the scene, there was also an envelope containing the vehicle registration for defendant’s 1973 Cutlass, a knife, and a letter to the defendant from Debbie Grime, his parole officer. (Defendant was on parole for felony convictions at the time this incident occurred.)

Defendant was observed at or near the Goodwill Store several times that evening. The 1973 Cutlass was likewise observed there.

The physician who examined the victim shortly after the incident found sperm in the victim’s vagina.

A serologist testified that the defendant was included in a group that could have contributed the sperm sample found in the victim’s vagina.

Defendant’s parole officer identified the letter found at the scene as being the letter sent by her to defendant and mailed July 1, 1986.

Defendant’s witnesses, all relatives or acquaintances, testified basically that the defendant was elsewhere than at the scene of the crime.

The state produced witnesses tending to rebut the alibi testimony.

The defendant contends that the proof is insufficient to support the convictions for robbery accomplished by the use of a deadly weapon, burglary first degree, and aggravated rape. When the sufficiency of the evidence is challenged, the standard for appellate review is whether, after considering the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. On appeal, the state is entitled to the strongest legitimate view of the evidence, and all reasonable and legitimate inferences which may be drawn from the proof. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). In a criminal action, a conviction will be set aside only where the reviewing court finds that the “evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tennessee Rules of Appellate Procedure 13(e). In a jury trial, a guilty verdict, approved by the trial judge, accredits the testimony of the state’s witnesses and resolves all conflicts in testimony in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978).

While defendant insists generally that the evidence is insufficient to sustain the verdict, he also argues specifically that as to the charge of aggravated rape, the state did not prove the element of penetration.

The victim testified that the assailant forced himself on her and had sex with her. Although proof of semen emission is not required (Tenn.Code Ann. § 39-2-602(11)), a medical examination conducted shortly after the incident revealed the presence of sperm in the victim’s vagina. Penetration may also be proved circumstantially. Greene v. State, 358 S.W.2d 306 (Tenn.1962); State v. Fears, 659 S.W.2d 370 (Tenn.Crim.App.1983).

We conclude from the abundance of overpowering proof presented, that any rational trier of fact could have found the essential elements of the crimes of burglary first degree, robbery accomplished by the use of a deadly weapon, and aggravated rape, all beyond a reasonable doubt. The evidence of defendant’s guilt in each case more than satisfies the standard prescribed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and in Tennessee Rules of Appellate Procedure, Rule 13(e).

EXCLUSION OF SEROLOGIST’S TESTIMONY

Defendant next says that the trial judge should have excluded the testimony of Patti Choate, the serologist, because her testimony was too speculative.

We observe that no objection was made to her testimony until at a recorded bench conference, the defendant’s counsel objected to the serologist’s proposed testimony that the defendant is a “B secretor,” and that 14% of the population are “B se-cretors.”

Our Supreme Court specifically recognizes the science of serology, and allows [477]*477experts in the field to qualify and give evidence on this subject. State v. Duncan, 698 S.W.2d 63, 69 (Tenn.1985). Moreover, our courts also hold that all expert testimony is speculative, and requires careful evaluation. Edwards v. State, 540 S.W.2d 641, 647 (Tenn.1976); Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149 (1945); See 37.13, T.P.I.Crim.

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State v. Brown, 749 S.W.2d 474, 1987 Tenn. Crim. App. LEXIS 2746 (Tenn. Ct. App. 1987).

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