State v. Dies

829 S.W.2d 706, 1991 Tenn. Crim. App. LEXIS 954
CourtCourt of Criminal Appeals of Tennessee
DecidedDecember 3, 1991
StatusPublished
Cited by16 cases

This text of 829 S.W.2d 706 (State v. Dies) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dies, 829 S.W.2d 706, 1991 Tenn. Crim. App. LEXIS 954 (Tenn. Ct. App. 1991).

Opinions

OPINION

PEAY, Judge.

The defendant was convicted on three counts of aggravated sexual battery. For these convictions he received a sentence of eight years on each count as a Range I standard offender. Two of these sentences were set to run concurrently with each other but consecutively to the third sentence, resulting in an effective sentence of sixteen years.

The defendant has presented seven issues for review in this appeal as of right. In the first issue he contends that the evidence was insufficient to support a conviction. In his second issue he complains that the trial court erred in denying his severance motion. In his third issue he complains that the trial judge erred in denying his motion for a change of venue. In his fourth and fifth issues he contends that the trial judge erred by allowing certain hearsay statements into evidence which did not qualify as fresh complaints. In his sixth and seventh issues he contends that the sentences were excessive in view of his belief that the trial judge failed to make the findings required by law. After consideration of the record in this cause, we find merit to the defendant’s complaints and reverse the trial court.

The defendant was charged with the sexual abuse of his nine-year-old stepdaughter in two counts of the indictment and with the sexual abuse of an eight-year-old victim in the third count. The facts necessary for a review of the defendant’s issues were established by the State's witnesses. According to this testimony one of the victims, E.S.,1 spent the night on December 9, 1987, with the other victim, D.P. Present in the home, in addition to D.P., were her mother and her stepfather, the defendant in this cause. On the following morning while riding the school bus, E.S. told D.P. that after she (E.S.) had gone to sleep, the defendant had picked her up and carried her to the living room. He had then placed her on the floor and had begun kissing on her forehead and “playing around” with her middle section. After school both victims went to a neighbor’s house and told this neighbor what had occurred on the previous evening. In addition, D.P. told of [708]*708a prior act toward her by the defendant. This neighbor notified both victims’ mothers, and each victim related her story to her respective mother, evidently in the presence of the neighbor. A police officer was then summoned, and the victims told their stories to the officer who transported them to the police station where they talked with a Department of Human Services representative. After making these statements, the girls were taken for a physical examination by a medical doctor.

Both victims testified at trial, and their testimony was followed by that of the aforementioned neighbor, E.S.’s mother, two Department of Human Services workers, and the medical doctor who had examined the victims. Each of these witnesses related various statements made by one or both victims concerning the defendant’s acts. In the case of D.P., the statements were made at least three to four months after the alleged acts while in the case of E.S., the statements were made over a period from one to five days immediately following the alleged event. In addition, the doctor who had examined both victims testified that E.S. had had redness around her genital area that would have been caused by some type of genital manipulation. The doctor also testified that when she had attempted a genital examination, D.P. became very upset making it impossible to complete the examination.

In presenting his side of the case, the defendant testified that he and D.P’s mother were divorced in the early part of 1987 and that he had not moved back into the home until after the summer of 1987. For this reason he contended that he could not have abused D.P. during that summer as she claimed. While he had been living in the home on December 10, 1987, and expressly remembered E.S.’s visit, he testified that at that time he had suffered from a severe toothache, had been taking medication, and had remained asleep on the couch throughout the period of her visit. He unequivocally denied any improper conduct such as was alleged by E.S.

Having outlined the proof, we now address the defendant’s first issue, in which he challenges the sufficiency of the evidence as to each conviction. 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. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). A guilty verdict rendered by the jury and approved by the trial judge accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State. A verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt. State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973).

A defendant challenging the sufficiency of the evidence 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). From a review of the evidence considered by the jury, we find that the defendant has failed to carry his burden.

In his second issue the defendant challenges the trial court’s refusal to grant a severance in this case. The allegations contained in counts one and two relate to D.P., while count three relates to E.S. It is the defendant’s contention that he was unfairly prejudiced by having to face the charges in one trial of all three counts when count three involved a separate allegation of sexual abuse towards a separate victim. Prior to trial the defendant properly filed his motion for a severance. At the time this motion was argued, it was denied by the trial judge who found: “If for no other reason besides the economics of the case, that this is a case that should be tried together and would be more or less a mandatory joinder type case”. The State’s position in this matter is that the decision on [709]*709whether to grant or deny a severance is left to the discretion of the trial court which will only be reversed for an abuse of this discretion. The State further contends that the three counts of aggravated sexual battery were properly tried together in spite of the fact that they involved two separate victims because the acts were part of a common scheme or plan.

Our rules of criminal procedure provide that the defendant shall have a right to a severance of offenses alleged in separate counts of an indictment if they are joined pursuant to Rule 8(b) unless the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others. Tenn. R.Crim.P. 14(b)(1). On this issue our Supreme Court has held that the primary inquiry into the question of if a severance should be granted is whether the evidence of one crime would be admissible in the trial of the other. State v. Burchfield, 664 S.W.2d 284

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Bluebook (online)
829 S.W.2d 706, 1991 Tenn. Crim. App. LEXIS 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dies-tenncrimapp-1991.