IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER SESSION, 1997
FILED STATE OF TENNESSEE, ) February 20, 1998 ) No. 02C01-9706-CC-00228 Appellee ) Cecil Crowson, Jr. ) GIBSON COUNTY Appellate C ourt Clerk vs. ) ) Hon. Dick Jerman, Jr., Judge EDWARD EARL HUDDLESTON,) ) (Rape of a Child) Appellant )
For the Appellant: For the Appellee:
C. Michael Robbins John Knox Walkup 3074 East Street Attorney General and Reporter Memphis, TN 38128 Elizabeth T. Ryan (ON APPEAL) Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Tom W. Crider Nashville, TN 37243-0493 District Public Defender 107 South Court Square Trenton, TN 38382 Clayburn Peeples, Jr. District Attorney General (AT TRIAL) 110 South College Street Suite 200 Trenton, TN 38382
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Edward Earl Huddleston, appeals his jury conviction for rape
of a child, a class A felony. The trial court sentenced the appellant to the
presumptive sentence of twenty years in the Tennessee Department of Correction.
On appeal, the appellant first contends that the trial court erred in finding the eight
year old victim competent to testify against him. Second, he asserts that the trial
court erred when it failed to find as a mitigating factor that the appellant neither
caused nor threatened to cause the victim serious bodily injury.
After review, we affirm the judgment of the trial court.
BACKGROUND
At trial, the State’s evidence established that, at about nine o’clock on the
evening of August 21, 1995, the appellant went to the victim, TC’s, home and asked
her mother if she could play with his daughter. 1 The victim’s mother agreed but
asked the appellant to bring her home at a reasonable hour. According to the
victim’s testimony, the appellant then drove the victim and his daughter to a store
and bought them chips and candy. Afterwards, the appellant took the girls to his
home where they played together for a short time. TC then got in the car with the
appellant to go home. The two drove past her house and parked behind the former
home of the appellant’s mother. W hile in the car, the appellant first said, “Don’t tell
nobody.” He then pulled down the victim’s shorts and panties and inserted his finger
into her vagina. TC told the appellant that he was hurting her. Sometime thereafter,
1 As a m atter of po licy, this court do es not na me m inors wh o are victim s of sex ual abus e. See State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn. Crim. App. 1989). The record reflects that the victim was seven years old at the time of the instant offense.
2 the appellant stopped the digital penetration. The victim then pulled up her shorts
and panties. The appellant gave her thirty dollars and told her again not to tell
anyone about what had occurred. He then took the victim home. When she arrived
at her house around eleven that night, her mother noticed that she was walking
“gap-legged” and had money in her hand. She then examined her daughter and
found blood in her panties and on her genitalia. At first, the victim claimed that the
appellant had given her the money for being “nice” to him, but then explained that
the appellant had “messed with her.” The victim’s mother called the police.
Patrolman Ronnie Pearson of the Humboldt Police Department responded to the
call. After speaking with the victim and her mother, he sent the two of them to
Humboldt General Hospital. When TC and her mother arrived at the emergency
room of Humboldt General, the nurse on duty found a small amount of blood on the
outside of the victim’s shorts and in her panties. She also found blood on her
external genitalia and noted some redness to the area. Dr. Robert Stevenson, the
doctor on call at the emergency room that night, examined the victim. He found that
her hymen had been torn and that such a tear could occur from digital penetration of
the vagina. After sending TC and her mother to the emergency room, Patrolman
Pearson went to the appellant’s home where he found him drinking beer and
watching television. The appellant denied any wrongdoing and claimed that he’d
given the victim money to buy some new clothes. Later, when Detective Dennis
Wright questioned the appellant, the appellant denied giving any money at all to the
victim. The defense put on no proof. After a deliberation of fifteen minutes, the jury
returned a verdict of guilty for the crime of rape of a child. At the sentencing
hearing, the trial court found no mitigating or enhancing factors applicable to the
present case and sentenced the appellant to twenty years incarceration in the
Department of Correction.
3 ANALYSIS
In the appellant’s first issue, he contends that the trial court incorrectly found
the victim competent to testify at trial. Rule 601 of the Tennessee Rules of
Evidence provides that “[e]very person is presumed competent to be a witness”
unless a rule or statute provides otherwise. The question of whether a child victim is
competent to testify rests within the sound discretion of the trial court. Such a
finding will not be overturned absent evidence in the record of abuse of that
discretion. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.
Caughron, 855 S.W.2d 526, 538 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475
(1993); State v. Howard, 926 S.W.2d 579 (Tenn. Crim. App. 1996).
The purpose of determining competency of the witness in child sexual abuse
cases is to allow a victim to testify if it can be determined that the child understands
the necessity of telling the truth while on the witness stand. Ballard, 855 S.W.2d at
560. Prior to trial, the appellant filed a Motion in Limine requesting the court to
determine whether the eight-year-old victim, TC, was competent to testify. The
assistant district attorney, defense counsel, and the trial court asked TC questions
concerning the difference between the truth and a lie and the consequences of
telling a lie. TC stated that it was right to tell the truth, wrong to lie, and if she lied
she would be sent to her room. At the conclusion of the motion hearing, the trial
court specifically found the victim competent to testify. The record supports this
finding. This issue is without merit.
The appellant also contends that the trial court imposed an excessive
sentence for his conviction. Review, by this court, of the length, range, or manner of
service of a sentence is de novo with a presumption that the determination made by
the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption
only applies, however, if the record demonstrates that the trial court properly
4 considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In making our review, this court must consider the evidence heard at
trial and at sentencing, the presentence report, the arguments of counsel, the nature
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER SESSION, 1997
FILED STATE OF TENNESSEE, ) February 20, 1998 ) No. 02C01-9706-CC-00228 Appellee ) Cecil Crowson, Jr. ) GIBSON COUNTY Appellate C ourt Clerk vs. ) ) Hon. Dick Jerman, Jr., Judge EDWARD EARL HUDDLESTON,) ) (Rape of a Child) Appellant )
For the Appellant: For the Appellee:
C. Michael Robbins John Knox Walkup 3074 East Street Attorney General and Reporter Memphis, TN 38128 Elizabeth T. Ryan (ON APPEAL) Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Tom W. Crider Nashville, TN 37243-0493 District Public Defender 107 South Court Square Trenton, TN 38382 Clayburn Peeples, Jr. District Attorney General (AT TRIAL) 110 South College Street Suite 200 Trenton, TN 38382
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Edward Earl Huddleston, appeals his jury conviction for rape
of a child, a class A felony. The trial court sentenced the appellant to the
presumptive sentence of twenty years in the Tennessee Department of Correction.
On appeal, the appellant first contends that the trial court erred in finding the eight
year old victim competent to testify against him. Second, he asserts that the trial
court erred when it failed to find as a mitigating factor that the appellant neither
caused nor threatened to cause the victim serious bodily injury.
After review, we affirm the judgment of the trial court.
BACKGROUND
At trial, the State’s evidence established that, at about nine o’clock on the
evening of August 21, 1995, the appellant went to the victim, TC’s, home and asked
her mother if she could play with his daughter. 1 The victim’s mother agreed but
asked the appellant to bring her home at a reasonable hour. According to the
victim’s testimony, the appellant then drove the victim and his daughter to a store
and bought them chips and candy. Afterwards, the appellant took the girls to his
home where they played together for a short time. TC then got in the car with the
appellant to go home. The two drove past her house and parked behind the former
home of the appellant’s mother. W hile in the car, the appellant first said, “Don’t tell
nobody.” He then pulled down the victim’s shorts and panties and inserted his finger
into her vagina. TC told the appellant that he was hurting her. Sometime thereafter,
1 As a m atter of po licy, this court do es not na me m inors wh o are victim s of sex ual abus e. See State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn. Crim. App. 1989). The record reflects that the victim was seven years old at the time of the instant offense.
2 the appellant stopped the digital penetration. The victim then pulled up her shorts
and panties. The appellant gave her thirty dollars and told her again not to tell
anyone about what had occurred. He then took the victim home. When she arrived
at her house around eleven that night, her mother noticed that she was walking
“gap-legged” and had money in her hand. She then examined her daughter and
found blood in her panties and on her genitalia. At first, the victim claimed that the
appellant had given her the money for being “nice” to him, but then explained that
the appellant had “messed with her.” The victim’s mother called the police.
Patrolman Ronnie Pearson of the Humboldt Police Department responded to the
call. After speaking with the victim and her mother, he sent the two of them to
Humboldt General Hospital. When TC and her mother arrived at the emergency
room of Humboldt General, the nurse on duty found a small amount of blood on the
outside of the victim’s shorts and in her panties. She also found blood on her
external genitalia and noted some redness to the area. Dr. Robert Stevenson, the
doctor on call at the emergency room that night, examined the victim. He found that
her hymen had been torn and that such a tear could occur from digital penetration of
the vagina. After sending TC and her mother to the emergency room, Patrolman
Pearson went to the appellant’s home where he found him drinking beer and
watching television. The appellant denied any wrongdoing and claimed that he’d
given the victim money to buy some new clothes. Later, when Detective Dennis
Wright questioned the appellant, the appellant denied giving any money at all to the
victim. The defense put on no proof. After a deliberation of fifteen minutes, the jury
returned a verdict of guilty for the crime of rape of a child. At the sentencing
hearing, the trial court found no mitigating or enhancing factors applicable to the
present case and sentenced the appellant to twenty years incarceration in the
Department of Correction.
3 ANALYSIS
In the appellant’s first issue, he contends that the trial court incorrectly found
the victim competent to testify at trial. Rule 601 of the Tennessee Rules of
Evidence provides that “[e]very person is presumed competent to be a witness”
unless a rule or statute provides otherwise. The question of whether a child victim is
competent to testify rests within the sound discretion of the trial court. Such a
finding will not be overturned absent evidence in the record of abuse of that
discretion. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.
Caughron, 855 S.W.2d 526, 538 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475
(1993); State v. Howard, 926 S.W.2d 579 (Tenn. Crim. App. 1996).
The purpose of determining competency of the witness in child sexual abuse
cases is to allow a victim to testify if it can be determined that the child understands
the necessity of telling the truth while on the witness stand. Ballard, 855 S.W.2d at
560. Prior to trial, the appellant filed a Motion in Limine requesting the court to
determine whether the eight-year-old victim, TC, was competent to testify. The
assistant district attorney, defense counsel, and the trial court asked TC questions
concerning the difference between the truth and a lie and the consequences of
telling a lie. TC stated that it was right to tell the truth, wrong to lie, and if she lied
she would be sent to her room. At the conclusion of the motion hearing, the trial
court specifically found the victim competent to testify. The record supports this
finding. This issue is without merit.
The appellant also contends that the trial court imposed an excessive
sentence for his conviction. Review, by this court, of the length, range, or manner of
service of a sentence is de novo with a presumption that the determination made by
the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption
only applies, however, if the record demonstrates that the trial court properly
4 considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In making our review, this court must consider the evidence heard at
trial and at sentencing, the presentence report, the arguments of counsel, the nature
and characteristics of the offense, any mitigating and enhancement factors, the
appellant’s statements, and the appellant’s potential for rehabilitation. Tenn. Code
Ann. §§ 40-35-102 (1995 Supp.); 40-35-103(5) (1990); 40-35-210(b) (1995 Supp.);
see also State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993) (citing Ashby,
923 S.W.2d at 168). The burden is on the appellant to show that the sentence
imposed was improper. Sentencing Commission Comments, Tenn. Code Ann. §
40-35-401(d).
At the sentencing hearing, the trial court rejected application of mitigating
factor (1), the defendant’s criminal conduct neither caused nor threatened serious
bodily injury. Tenn. Code Ann. § 40-35-113(1) (1990). Accordingly, the appellant
contends that, because of the erroneous rejection of this mitigating factor, his
sentence should be reduced from the presumptive sentence of twenty years
incarceration.
We are compelled to note that every rape is physically and mentally injurious
to the victim. See State v. Kissinger, 922 S.W.2d 482, 487 (Tenn. 1996). It is
difficult to conceive of any factual situation where the rape of a child would not
threaten serious bodily injury. Notwithstanding this fact, serious bodily injury as
defined by the statute includes an injury that involves “extreme physical pain.”
Tenn. Code Ann. § 39-11-106 (33)(C) (1995 Supp.). The young victim testified that
the appellant hurt her. The doctor at the emergency room testified that her hymen
was torn and observed blood on her external genitalia. We have held that injuries
similar to the victim’s in this case constitute serious bodily injury for the purposes of
the statute. See State v. Dison, No. 03C01-9602-CC-00051(Tenn. Crim. App. at
Knoxville, Mar. 14, 1997), perm. to appeal denied, (Tenn. 1997). Moreover, we
5 have held that serious bodily injury also includes a mental element. Id. Clearly, the
fact that the victim was raped at age seven necessarily includes mental anguish and
suffering. The record supports the trial court’s decision that the mitigating factor is
inapplicable in this case. This issue is without merit.
In view of our determination that mitigating factor (1) is inapplicable, we find
no error in the trial court’s imposition of the presumptive sentence of twenty years.
For the foregoing reasons, the judgment of the trial court is affirmed.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
________________________________ GARY R. WADE, Judge
________________________________ JOE G. RILEY, Judge