IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE
October 14, 1999
MARCH 1999 SESSION Cecil Cro wson , Jr.
Appellate Co urt Clerk
STATE OF TENNESSEE, ) C.C.A. 03C01-9807-CC-00249 ) RHE A CO UNT Y CIR CUIT )
Appellee, ) Hon. Buddy D. Perry, Judge )
)
)
vs. ) (ATTEMPT TO COMMIT ) AGGRAVATED RAPE)
) NO. 14229
)
CARLOS D. MATHIS, )
)
Appe llant. )
FOR THE APPELLANT: FOR THE APPELLEE:
B. JEFFERY HARMON JOHN KNOX WALKUP Assistant Public Defender Attorney General & Reporter P.O. Box 220 Jasper, TN 37347 ERIK W . DAAB
Assistant Attorney General 425 F ifth Aven ue N orth 2nd Floor, Cordell Hull Bldg.
Nashville, TN 37243
JAMES MICHAEL TAYLOR
District Attorney General
WILL DUNN
Assistant D istrict Attorney 365 Third Avenue, Suite 300 Dayton, TN 37321
OPINION FILED:_________________
REVERSED AND REMANDED
CORNELIA A. CLARK Special Judge
OPINION
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Appellan t appeals a s of right from his conviction for attem pt to com mit aggravated rape, a Class B felony. He was sentenced to serve twelve years. Appellant raises th e followin g issue s for revie w: (1) the trial c ourt c omm itted pla in error in failing to give a jury instruction as to alibi; (2) the co urt co mm itted rev ersible error in failing to give a jury ins truction as to id entity; (3) th e cou rt com mitted plain error in telling the jury “there are six (6) potential crimes that could have been com mitted”; and (4) the court erred in sentencing the appellant. Upon review of the reco rd, we conc lude th at we mus t revers e an d rem and for a n ew tria l.
On May 1 7, 1997, Rose Runyon, the victim in this case, opened her flower shop located in Richland Plaza in Dayton, Tennessee, about 8:30 a.m. At appro xima tely 9:00 a .m., a bla ck ma le unkn own to Mrs. Ru nyon e ntered her flower and gift shop. He indicated he was looking for a late anniversary present for his wife, having forgo tten th eir anniversary a few days before. He looked around the store for about twenty to thirty minutes, then selected several stuffed animals for purchase. As Mrs. Runyon proc eed ed to the re ar of th e stor e to w rap a nd ta pe th e pre sents selected, the man followed her to get cards to sign. Suddenly he grabbed her from behind, placed a knife to her throat, and stated, “Be quiet or I’ll kill you.” As she struggled, he cut her on the throat, mouth, chin, and neck. He attempted to place duct tape over her mou th but, because h er face was co vered with blood, the tape did not stick. Mrs. Runyon pleaded with the attacker and told him where her cash was located. The attacker then threw her to the floor and dema nde d th at she undress. Mrs. Run yon sta ted, “Yo u mig ht as w ell kill me now . I’m no t pulling my clo thes o ff.” The attacker pulled off her clothing and began to kiss her. He unzipped his pan ts, grabbed her b reas t, and attem pted to pe netra te he r. At tha t mom ent, however, Kenn eth Robbins, a customer, entered the store. The attacker fled through the back door, leaving behind the gifts he had chosen and a necktie with strips of duct tape on it. He took his knife with him. Mrs. Runyon was obviously upset and asked Robbins to stay until the police came.
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Mrs. Runyon testified that she carefully looked at her attacker so that she wou ld be able to identify him in the future. The rooms were well lit. She described the attacker to po lice as a blac k ma le, app roxim ately five feet s even inche s tall, app roxim ately twenty-five years old, weighing between one hundred twenty and one hundred forty po und s, cle an-shaven, and wearing tortoise-shell framed prescription glass es.
Prior to Mrs. Runyon’s ultimate identification of the appellant, Dayton Police Officer Chris Sneed showed her photographs of approximately ten to twelve black male susp ects, b ut she could not ide ntify an y of them as her a ttacke r. App ellant’s pho togra ph w as n ot inc lude d in th e arr ay.
Sho rtly after th e atta ck M rs. Runyon had o ccas ion to d escrib e he r attac ker to other Richland Plaza store owners. Margaret Philpott, manager of the neighboring Mou ntain Air Natural Food Shop, responded that a man matching the description of the attack er ha d com e into h er sto re on the tw o da ys prec eding the a ttack. She testified at trial that on May 15, 1997, the same man remained in her store for appro xima tely forty-five minutes but did not make a purchase. On May 16, he staye d in the store for approximately one hour, then purchased children’s vitamins with a chec k. Du ring h er trial tes timon y, she id entifie d the app ellant a s the c heck writer.
Another Richland Plaza store owner told Mrs. Runyon that a person meeting the attacker’s description frequented his store. This owner believed that the individual worked at a local Arby’s Restaurant. About two or three weeks after her attack, Mrs. Runyon and h er dau ghter vis ited Arb y’s and, u pon o bservin g the a ppellan t there, imm ediate ly recognized him as her attacker. She called the police and the appellant was arres ted.
After the a rrest, O fficer Ch ris Sneed testified that he conducted a search of the app ellant’s residence and recovered tortoise-shell prescription glasses and duct tape. Mrs. Runyon later identified the glasses as those worn by he r attac ker. T he a ppe llant, clean-shaven at the time of arrest, told Officer Sneed that he was five feet six and one -half inches tall, that he weighed one hundred forty pounds, and was twenty-one
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years old. These details fit the general description given by Mrs. Runyon. Sneed also obtain ed the appellant’s marriage license showing that his wedding anniversary was May 12, five days b efore the inc ident. N o knif e, shirt, o r pan ts ma tching the description given by the victim were ever found.
At trial Ros e Run yon iden tified the a ppellan t as her a ttacker.
The appellant testified in his own behalf and denied committing the offense charged. He stated that at th e time of the incide nt he was at his f athe r-in-law ’s broth er’s house with his wife, attempting to borrow money from his father-in-law. He testified that he then proce ede d to a f orme r emp loyer’s lo cation in Ch attan oog a to obta in his pa ychec k. He testified that he had never been in the victim’s store, that he had bought a present for his wife prior to his anniversary, that he had always weighed more than 140 pounds, and that he never wore glasses.
The appe llant’s alibi wa s corro bora ted by his father-in-law, Don Creasman.
Creasman testified that he particularly remembered the day in question because he had worked the third shift, left work early in the morning, and cashed a check before drivin g to his brother’s house. He intended to lend the appellant money. Creasman further testified that his daughter, her two children, and the appellant all were in the car when they arrived at his brother’s house. His daughter was driving because the appellant could not d rive a s tick-sh ift. Crea sma n testif ied tha t the ap pella nt was acting norm ally and showed no unusu al mark s or b lood. The appellant and his family left for Chattanooga between 9:10 and 9:15 a.m. Creasman also testified that at the time of the incident the appellant weighed between one hundred seventy and one hundred seve nty-five p oun ds, an d tha t he n ever w ore g lasse s.
On cross-examination, Don Creasman admitted certain inconsistencies between his testimony in the first trial1 and the instant trial. For example, at the time of the first trial he said he had deposited his own paycheck on the day of the attack. However, a bank videotape showed that he cashed his check the day before this incide nt. At the second trial he said it w as his wife’s check he cashed in order to get money for his son- in-law. C reasman also acknowledged that he never raised the alibi
1 The cas e had first b een tried s ever al m onth s ear lier an d app aren tly resu lted in a m istrial.
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defe nse to the p olice d uring their initia l inves tigation .
App ellant’s uncle -in-law , Clau de C reas man , also te stified a bou t the ev ent. H is story was consistent with those of his brother a nd th e ap pellan t. How ever, h e cou ld not remember details about the exact day when the meeting occurred.
The defense also called Special Agent Forensic Scientist Robert McFadden of the Tennessee Bureau of Investigation. Age nt M cFadden testified that he had developed three latent prints o n the duc t tape found on the tie which was left at the scene of the offense. The fingerprints did not match those of either the victim or the app ellant.
Kelly 2 Math is, app ellant’s wife, was called by the state as a rebuttal witness.
She identified a statement she gave to police on June 5, 1996, indicating that she and her husband were home at the time of th e atta ck a nd d id no t leav e the hou se a ll day. The statement was given before Mrs. Mathis had an opp ortun ity to spe ak w ith appellant after h is arre st. He r state men t contr asted with the state men t originally given by appellant that he was in Memphis visiting his mother at the time of the attack.
Mrs. Mathis explain ed tha t the origin al statem ent wa s incorr ect because she was scare d an d up set a t the time she gave it. At trial she testified that on the evening of May 16, she asked her father if she could borrow money so that she and her husband could go to Chattanooga the next morning to pick up his final paycheck. She concurred with the testimony of her father that she, her husband, and her two childre n arrived at Cla ude Cre asm an’s hom e in D ayton, Tennessee, between 9:00 a.m. and 9:30 a.m. H er fath er loa ned them twen ty dollars and they lef t to go to Chattanooga. She stated that neither she nor her husband had been at Richland Plaza that morning. She furthe r testif ied th at he r hus ban d ha d no t forg otten their a nniv ersa ry and had bou ght h er an ang el ring a s a gif t.
2 In the court reporter’s transcript, Mrs. Mathis’s first name is spelled “Kelli”. However, in her statement, signed in her own ha nd, Mrs. Mathis spells her nam e “Kelly”.
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JURY INSTRUCTIONS
Appellant raises tw o issues concerning error in the jury instructions: (1) the failure to instru ct the ju ry as to th e de fens e of a libi, and (2) the failure to instruct the jury as to identification.
A. ALIBI
Trial courts have an affirmative duty to instruct the jury on every issue raised by the proof, including the accused’s theory of defense, and specifically including the defense of alibi. Poe v. State , 212 T enn. 4 13, 37 0 S.W . 2d 48 8, 491 (Tenn . 1963 ). See also State v. McPherson, 882 S.W. 2d 365, 374 (Tenn. Crim. App. 1994)(citations omitted ). When a defendant pursues an alibi defense at trial, t he trial court must instruct the jury on the defense when it is “fairly rais ed” b y the ev idenc e. Manning v. State , 500 S.W. 2d 913, 916 (Tenn. 197 3); Poe, 370 S.W . 2d a t 491 . See also State v. Hard in, 691 S.W. 2d 578, 581 (Tenn. Crim. App. 1985 ). The duty exists irrespective of a re que st for th e instru ction b y the de fend ant. Poe, 370 S.W . 2d a t 491 .
Our Supreme Court has provided three scenarios reflecting when an alibi defense has b een “fairly raise d”, the reby m aking the ins truction man dato ry. Manning, 500 S.W. 2d at 916. Those scenarios are:
(1) where the defendant’s alibi has been corroborated by other credible witnesses;
(2) where the victim has been unable to identify the defendant; or (3) whe re the proo f aga inst the defe nda nt is wh olly circu msta ntial.
Id. Only when the evide nce fairly raises the defense b y meeting one o f the above circumstances does the trial cou rt have an u neq uivo cal d uty to in struc t the ju ry. W here the evidence does not meet these circumstances, the trial court is not required to give s uch a n instru ction. Almo nrod e v. Sta te, 567 S.W. 2d 184, 186 (Tenn. Crim. App . 197 8).
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The app ellant’s wife, her father and her uncle all testified that appellant was with them at or sufficiently near the time of the offense to make his commission of it impossible. Although appellant’s wife admitted that her initial statement to police was inconsistent with her trial testimony, she explained that she was nervous and upset when she made the initial statement. There existed a direct conflict in the factual testimony of the defense witnesses and the victim. Thus the appellant fairly raised the defense of alib i and it w as fo r the jur y to eva luate the credibility of witnesses and decide the factual issue. Because the evidence satisfies th e first Manning prong, we find that an instruction on the defens e of alibi was warranted, and that failure to give it cons tituted erro r.
Finding that the trial court erred in its jury charge by omitting the alibi instruction, we can not say that it is harm less error. W hen the d efense o f alibi is fairly raised by the pro of at tria l, the fa ilure so to instru ct the ju ry is reve rsible e rror. Poe, 370 S.W . 2d a t 490 -491 ; See also Manning, 500 S.W. 2d at 916. When a n alibi i s supported by the p roof, t he ins truction is f und ame ntal to th e de fens e an d ess ential to a fair trial. Poe, 370 S.W. 2d at 491. It follows th at the appellant’s conviction must be revers ed a nd a new trial orde red.
B. IDENTIFICATION
The app ellant a lso co nten ds tha t the trial c ourt e rred in failing to instru ct the jury as to identification. In State v. Dyle , 899 S.W.2d 607, 612 (Tenn. 1995), the Tennessee Supreme Court held that whenever identification is a material issue in a case, and it is requested b y appe llant’s c oun sel, a s pecif ic new instruc tion on identity adopted by the co urt must be given. Failure to give the instruction under those circumstances cons titutes p lain err or. Id. at 612 ; State v. Cribbs, 967 S.W.2d 773, 780 (Ten n. 19 98).
In this case, however, appellant’s counsel did not request that an instruction be given concerning identity. Neither was the issue raised in the motion for ne w trial. Therefore, we m ust de termin e whether the trial court’s failure to give the Dyle instruction is harmless or prejudicial error. Tenn. R. Crim. P. 52(a) (“No judgment of conv iction shall b e reve rsed on a ppe al exc ept fo r errors which affirm atively a ppe ar to have affected the re sult o f the tria l on the merits .”); State v. Cribbs, 967 S.W.2d 773,
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780 (Ten n. 19 98).
The victim in this ca se ga ve a d etailed d escrip tion of her attacker almost imm ediate ly after th e po lice arriv ed. S he te stified that she h ad loo ked c arefu lly at him so that she would be able to identify him in the future. Her description was consistent with the appellant’s appearance at the time of his arrest. The victim ultimately made a positive identification of the appellant when she visited his place of employment, and aga in at trial. Another nearby business owner identified the appellant as a person who had loitered in her s tore fo r som e time on th e two days b efore the cr ime. T he vic tim also ultim ately identified gla sses she c laimed were w orn by he r attacke r and th at were foun d in his reside nce.
Notwithstanding that identification testim ony, much of the rest of the proof was circum stantia l. Because (1) appellant introduced evidence of alibi, (2) no clothes or knife matching those described by the victim were ever found, and (3) no fingerprints matching the appellant’s were identified, we would be inclined to fin d tha t the er ror in failing to give the Dyle instruction, standing alone, did affect the ve rdict in this case. Having already determined that failure to instruct the jury as to th e defense of alibi constitutes reversible error, we address this issue separately for the benefit of th e trial court on re man d. Ta ken to geth er, it is cle ar tha t failure to give the tw o instr uctions may h ave a ffecte d the verdic t.
SENTENCING
For the benefit of the trial court on remand we will also address the alleged errors in sentencing. The appellant asserts that the trial court erred in imposing the ma ximu m tw elve -year sen tenc e for this C lass B fe lony.
W hen an accused challenges the length, range, or manner of service of a sentence, this court has a duty to conduct a de novo review of th e sentence with the presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §40-35-401(d). If our review reflects that the trial court follow ed the statutory sentencing proc edu re, imp osed a lawf ul sen tence afte r givin g due consideration and proper weight to the factors and principles set out under the se nte ncing law, and the trial cour t’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different re sult. State v.
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Fletcher, 805 S .W .2d 78 5, 789 (Tenn . Crim. A pp. 19 91).
How ever, “the presumption of correctness which accomp anies the trial c ourt’s action is conditioned u pon th e affirm ative sh owing in the rec ord tha t the trial cou rt considered sente ncing princip les an d all rele vant fa cts and circumsta nces ”. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,
the trial cou rt mus t place on th e record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. §§40-
35-21 0(f) (199 0).
State v. Jones, 883 S .W .2d 59 7, 599 (Tenn . 1994 ).
Under Tenn. Code Ann. §40-35-210 a court at sentencing is requ ired to consider all the follow ing: (a) the eviden ce, if any, re ceived at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments of sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) evidence and information offered by the parties on the enhancement and mitigating factors; and (f) any statem ent th e de fend ant w ishes to make in his own behalf about sentencing. The court can use evidence or information offered by either party at any phase of the proceeding in determining what enhancement and mitigating factors apply. The court can also receive information as to these factors from the presentence report, even though the information was not asserted by the parties. Tenn. Code Ann. §40-35-207(a)(5 ). Neither party is required to file a statem ent o f prop osed enh ance men t or mitig ating f actor s unle ss req uired to do so by the court. Tenn. Code Ann. §40-35-202(b). However, a court is always required to consider the existence of these factors in making its sentencing determinations. Finally, in co nduc ting our de novo review , this co urt is au thorize d to consider any enhancement or mitigating factors supported by the record, even if not relied upo n by the trial cou rt. Sta te v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). The burden is on the defendant to show that the sentence was im proper. Sentencing Com missio n Com men ts, Ten n. Cod e Ann . §40-3 5-401 (d).
In impos ing its se ntenc e the co urt cons idere d three enhancing factors under
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T.C.A. §40-35-114: (1) the appellant has a previous history of criminal convictions; (11) the f elon y resulte d in death or bodily injury and the appellant has previously been convicted of a felony involving bodily injury; and (20) the appellant w as ad judica ted to have committed delinquent acts as a juvenile that would constitute a felonies if committed by an adult. The trial judge also apparently considered as a mitigating facto r the fa ct that a ppe llant ha d a g ood work history a nd a willingn ess to work .
App ellant, as a juvenile, was adjudicated delinquent for committing the offenses of first degree murder of one woman, and aggravated assault and attempted aggravated rape of a second woman. He w as co mm itted to th e De partm ent o f Youth Development until his twenty-first birthday. While at Taft Youth Center, but after he turned eighteen, appellant was convicted of criminal conspiracy to commit aggravated riot. He was sentenced to serve a consecutive sentence for this adult offense.
App ellant’s argume nt as to the erroneous application of the three enhancement facto rs is un clear. H e do es no t spec ifically contest the application of factors (1) or (20). Indeed he cannot. He has one prior adult conviction and three very seriou s juve nile ad judica tions, a ll of wh ich wo uld have mandated lengthy prison sente nces if com mitted by an a dult.
The state takes the position that the third enhancement factor relied upon by the trial court is factor (11), which permits enhancement where bodily injury is inflicted and the d efen dan t has previous ly bee n co nvic ted o f a fe lony in volvin g bo dily inju ry. The trial cou rt’s state men t on this issue is con fusin g:
THE COURT: . . . The enh ancin g fac tors a re, at lea st, three . I am goin g to refer to them by numbers.
...
Number 2. Th e felo ny resu lted in d eath or bo dily injury, and in this case bod ily injury, be it minor bodily injury but significant m ental inju ry obvio usly, . . .
The app ellant asserts only that psychological or emotional injuries are not considered enh ance men t facto rs. W e agree that such emotional injuries, by themse lves, do not establish any of the enhancement factors contained in T.C.A. §40-35-114 which would allow for enhancement of the sentence above the
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pres ump tive m inimu m. State v. Reid , 882 S .W .2d 42 3, 430 (Tenn . Crim. A pp. 19 94).
To the extent that the court intended to apply factor (11 ), it did so in e rror.
App ellant’s only prior a dult con viction is fo r cons piracy to co mm it aggra vated riot, a Class A m isdem ean or. W hile he was adjud icated delinq uen t as a ju venile for th e very serious offenses of first degree murder, attem pt to commit aggravated rape, and aggravated assault, these juvenile adjudications cannot be utilized to make factor (11) app licab le. W hen imp osin g se nten ce fo r offe nse s co mm itted o n or a fter J uly 1, 1995, a cou rt may co nsider p rior juvenile offens es on ly under T .C.A. §4 0-35-1 14(20 ). State v. William Jason McMahan, No. 03C01-9707-CR-00262, Knox County (Tenn. Crim. App ., at Kn oxville, M arch 31, 19 99); State v. Brent Brown, CCA No. 02C01- 9710-CC-00419, Hardeman County (Tenn. Crim. App., at Jackso n, October 26, 1998 ).
For a Range I, Standard Offender, the range of punishment upon conviction of a Clas s B fe lony is e ight (8 ) to twe lve (12 ) years . The min imum sentence within the range is the presumptive s ente nce. If there are e nha ncing but n o mitig ating f actor s, a court may set the sentence above the minimum in that range but still within the range. The weigh t to be g iven e ach f actor is left to th e disc retion of the trial judge. State v. Shelton, 845 S .W .2d 11 6, 123 (Tenn . Crim. A pp. 19 92).
The trial court appeared to give the most weight to the serious nature of the offenses committed while appellant was a juvenile, pointing out that, if he had been convicted of first degree murder as an adult, the offense before him would never have occu rred, s ince th e ap pellan t wou ld hav e rem ained in jail.
Since the court misapplied one enhancement factor, our review is de novo upon the record. However, a fter conducting that review, we conclude that the trial court properly sentenced the appellant. Appellant’s record of vi olent behavior against women from a young age is entitled to great weight. Having found the existence of two enhancing factors, and only one mitigating factor, we find the record supports the trial cour t’s judgment that a twelve-year sentence is appropriate. This issue has no merit.
For the reasons set forth above, we reverse the judgment of the trial court and rema nd th is cau se fo r a ne w trial.
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_________________________________
CORNELIA A. CLARK
SPECIAL JUDGE
_______________________________
GARY R. WADE PRESIDING JUDGE
_______________________________
NORMA McGEE O GLE JUDGE