IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY 1997 SESSION September 19, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9601-CC-00011 ) ) Sullivan County v. ) ) Honorable Frank L. Slaughter, Judge ) EDWARD A. HUDSON, ) (Rape of a Child) ) Appellant. )
For the Appellant: For the Appellee:
Stephen M. Wallace Charles W. Burson District Public Defender Attorney General of Tennessee and and Richard A. Tate Robin L. Harris Assistant District Public Defender Assistant Attorney General of Tennessee P.O. Box 839 450 James Robertson Parkway Blountville, TN 37617-0839 Nashville, TN 37243-0493
H. Greeley Wells, Jr. District Attorney General and Barry P. Staubus Assistant District Attorney General P.O. Box 526 Blountville, TN 37617-0525
OPINION FILED:____________________
CONVICTION AFFIRMED; SENTENCE MODIFIED
Joseph M. Tipton Judge OPINION
The defendant, Edward A. Hudson, appeals as of right from his conviction
by a jury in the Sullivan County Criminal Court for rape of a child, a Class A felony. As
a Range I, standard offender, he received a twenty-year sentence and was fined
$30,000. The defendant contends that the evidence is insufficient to convict him of
rape and that his sentence is excessive. We affirm the defendant’s conviction and
modify his sentence.
The defendant was charged with sexually penetrating a six-year-old girl
while he was a guest in her family’s home on the night of December 12, 1994. At trial,
Officer Rick Mowell of the Bristol Police Department testified that he went to the
hospital to investigate the case at around 10:10 p.m. on December 13. He said that he
interviewed both the victim, A.P., and her mother, Debra Quillen, separately. He said
that he gathered evidence for a rape kit and the victim’s panties. He recalled that he
followed the victim and her mother to the house where they lived where he took several
photographs and collected some paper towels and the victim’s comforters and bed
sheets. The comforters from the victim’s bed and photographs of the victim’s bedroom
and a couch that was in the living room were introduced into evidence.
Officer Mowell testified that he met with the defendant at around 3:00 p.m.
the next day, December 14, at the Kingsport Police Department. He recalled that the
defendant waived his rights and agreed to speak with him. He said that he prepared a
statement of what the defendant told him and the defendant signed it. He read the
statement to the jury. In relevant part, the statement says,
Monday night I stayed at Brian Quillen’s House in Bristol TN. . . . Brian, Debbie, [A.P., and her sister] were the only other people at the house. Me and Brian sat around and drank a few beers. Monday the kids were still up when I got there. Debbie didn’t drink. She went to bed before Brian did. Then Brian went to bed. I went to bed about 12:00 midnight and
2 slept on the couch. I went to [A.P.’s] bedroom and leaned down beside her. I fingered [A.P.’s] vagina only for a few minutes. While I was fingering her, I was masturbating with my left hand. I ejaculated on the bed beside [A.P.] I was drunk and felt sick after I did it. When I ejaculated I held my hand over the end and didn’t think I got any on the bed. I held it and wiped it on some paper towels. I then went back and got in the bed on the couch.
Officer Mowell testified that Detective Harold Gilreath of the Kingsport Police
Department was present when he read the statement to the defendant and the
defendant signed it. Officer Mowell recalled that the statement originally said that the
defendant laid down beside the victim but that he changed the statement after the
defendant told him he did not lie next to the victim but instead leaned beside her.
Officer Mowell testified that the defendant did not request that any other changes be
made to the statement.
Officer Mowell said that after he took the defendant’s statement, he
transported the defendant to the Regional Medial Center in Bristol for a rape kit to be
performed on him. He said that the defendant agreed to submit to a rape kit to show
that no penile penetration occurred. Officer Mowell testified that while he and the
defendant were en route to the hospital, the defendant held up his index finger and
touched it with his thumb and said, “Man, I don’t know how I tore her. It was that much
if any.”
On cross-examination, Officer Mowell testified that the defendant told him
that he could not read well. He said that he told the defendant about the evidence
against him and told the defendant that the defendant’s best friend wanted to kill the
defendant. Although Officer Mowell admitted that he did not write exactly what the
defendant told him when he took the defendant’s statement, he said that the statement
was a summary of the discussion he had with the defendant. Officer Mowell testified
that he did not recall whether the defendant asked him about the meaning of some of
the words in the statement. However, after defense counsel showed him a note he had
3 written about his interview with the defendant, he concluded that the defendant must
have asked him about the meaning of some of the words in the statement. Officer
Mowell denied telling the defendant that he could go back to work if he signed the
statement. Officer Mowell initially testified that the defendant was not wearing
handcuffs while he was being transported to Bristol, but he later stated that the
defendant was wearing handcuffs. He recalled that the defendant was calm while he
was at the hospital, but he said that the defendant told him later that he did not deserve
to live because of what happened.
The victim testified that the defendant was her daddy’s friend. She said
that he came into her room and kicked her in her “private”. She said that she screamed
and the defendant kicked her again and put his hand over her mouth. She recalled that
the room was dark but that she knew that the defendant’s knee was in her “privates”.
She said that the only place the defendant touched her with his hand was on her face.
She described her “private” as the area in the middle of her legs that was covered by
her panties. She said that she noticed blood in her panties after school the next day
and told her mother’s Aunt Nell about what happened.
Mark Mason and Harold Gilreath, criminal investigators with the Kingsport
Police Department also testified. Officer Mason said that he saw the defendant sign a
rights waiver form before Officer Mowell took his statement. Officer Gilreath testified
that he was present when Officer Mowell read the statement to the defendant and
asked him to sign it. He recalled that the statement was corrected after the defendant
asked that the word “laid” be changed to “leaned.” Officer Gilreath said that he
notarized the defendant’s signature on the statement after the defendant swore to it.
The victim’s Great Aunt Ivanell Chapman testified that she watched the
victim before and after school on December 13, 1994. She recalled that the victim told
4 her that she had blood in her panties and that the defendant had kicked her with his
knee. She said that the victim did not volunteer the information until she asked her
about it.
Debra Quillen, the victim’s mother, testified that the defendant was her
husband’s friend. She said that he had been to her house many times and had spent
the night on her couch before December 12th. She said that the defendant usually
slept on the couch when he spent the night but that he may have slept in the victim’s
sister’s room once or twice. She recalled that on December 12th, the defendant and
her husband talked while she put the six-year-old victim and the victim’s younger sister
to bed. She explained that the victim’s bedroom is next to the living room. She said
that she went to bed at 9:30 p.m. and that her husband came to bed fifteen or twenty
minutes later. She said that they left their bedroom door open but that it was closed
when she awoke the next morning.
Debra Quillen testified that on the morning of December 13th, the
defendant was sleeping on the couch when she left to take the two girls to her aunt’s
house. She said that when she returned to pick up the girls that evening, she took the
victim into the bathroom and saw blood on her panties. She said that the victim had
never had any vaginal discharges or female problems in the past and that she took the
victim to the emergency room.
Brian Quillen, the victim’s stepfather, testified that he and the defendant
had been friends for twenty years. He said that the defendant had spent the night on
the couch at his house before and that he told the defendant he could spend the night
there on December 12th. He recalled that he and the defendant drank a couple of
beers that night before he went to bed. He said that he left the defendant sitting in the
dining room of the house and that he left his bedroom door open when he went to bed.
5 He said that the defendant seemed sober while he was at the house that night and that
he did not see the defendant take any drugs. On cross-examination, Brian Quillen
testified that although the defendant usually slept on the couch when he spent the
night, he may have spent the night in a bedroom in the house once or twice.
Dr. Paul Joseph Derden was on duty in the emergency room of the Bristol
Regional Hospital and Medical Center when Debra Quillen came in with the victim at
9:17 p.m. on December 13, 1994. He recalled that the victim told him that her father’s
friend “put his thing in my thing” and also told him that her father’s friend put his knee in
her “frog.” The victim told Dr. Derden that it hurt and that she screamed when it
happened but that no one heard her or came to help her.
Dr. Derden said that he examined the victim and discovered an abrasion
in the perineal area around the opening of her vagina with a small amount of bleeding
present. He also noticed that her hymen was torn. He said that the victim’s injuries
were consistent with a digital penetration of the vaginal area or consistent with
penetration by some other small object that would apply a lot of force to a small area.
He said that the victim’s injuries were not consistent with a person’s knee being placed
in the vaginal area. He explained that an adult falling on the child would likely cause
bruising, instead of tears and abrasions. On cross-examination Dr. Derden admitted
that he did not know for certain what object caused the victim’s injuries. He also
explained that his examination of the victim caused the victim to bleed slightly but that
he saw evidence that the victim had also bled before the exam.
Dr. Judy Fischer, a specialist in obstetrics and gynecology, testified that
she examined the victim on December 21, 1994. She said that the victim had a tear in
her hymen that was consistent with digital penetration or penetration by some other
object that was near the size of a finger. She testified that she did not believe that the
6 victim’s injuries could have been caused by a knee or by an accident on a playground.
Although Dr. Fischer said it was possible that one could inflict on oneself injuries like
those the victim received, she considered it unlikely because tearing of the tissue in
such a manner would be painful.
The defendant testified that he did spend the night with the Quillens on
the night in question. However, he said that he did not digitally penetrate the victim or
ejaculate on paper towels. He recalled that he had drunk eight beers before he arrived
at the house that night and that he drank another two beers with Brian Quillen. He said
that he went to the living room to watch T.V. after Brian went to bed. He recalled that
he “passed out” on the couch and awoke a few hours later and went to use the
bathroom. He said that he was still intoxicated when he was returning from the
bathroom and took a wrong turn into the victim’s bedroom. He said that the room was
dark and that he fell on top of the victim. He said that he did not think anything about
the victim being in her bed when he first approached it because she and her sister often
slept together. He said that both he and the victim were surprised when he fell onto the
bed. He said that the victim yelled and that he fell back onto the floor. He said that he
then identified himself to the victim and asked her if she was okay. He testified that the
victim said that she was alright and that he returned to the bathroom and got sick. He
said that on his way back to the couch, he again asked the victim if she was alright.
The defendant said that he had taken some nerve pills and smoked some
marijuana the day he talked to Officer Mowell about the case. He testified that Officer
Mowell did not believe him when the defendant told him that he had fallen on the victim.
The defendant said that his discussion with Officer Mowell turned into an argument
because the defendant disagreed with what Officer Mowell had written in the statement.
He said that the officer told him that he had to sign the statement. The defendant said
that he argued with the officer and told him that he did not want to sign the statement
7 because it was not accurate. According to the defendant, the officer responded by
asking him what was in the statement that he did not say and by reading one line of the
statement. The defendant recalled that the officer changed the one line but did not
change the rest of the statement.
The defendant said that he finally signed the statement because Officer
Mowell told him that he would be free to go and would not hear anything else about the
case until the grand jury met. The defendant explained that he did not believe that
there would be any proof to support an indictment. He said that he signed the
statement because he thought that he would never make it to trial or spend a day in jail.
He also said that he was eager to speak to Brian Quillen. He recalled that he was
depressed and cried after he signed the statement because Officer Mowell told him that
his friend wanted to shoot him. The defendant also testified that his hands were cuffed
behind his back while Officer Mowell was taking him to the hospital. He denied telling
the officer that he did not know how he tore the victim and denied gesturing with his
hands.
The defense also called Officer Mowell to testify. The officer admitted that
he found a small amount of marijuana on the defendant the day he took the
defendant’s statement but said that he did not charge the defendant with it. Officer
Mowell denied arguing with the defendant when he took the defendant’s statement and
said that the defendant only requested one change to the statement. He said that the
defendant did not tell him that he had fallen on the victim. Although the defendant did
tell him that he had been drinking that night, Officer Mowell said that the defendant
never indicated that he was so intoxicated that he could not find his way from the
bathroom to the living room. Also, when the defendant told him about being sick,
Officer Mowell understood that the defendant was sick because of what had happened.
Officer Mowell also testified that he only sent paper towels that he found next to the
8 couch in the living room for testing, although there were other paper towels in the
house.
T.B.I. Agent Raymond A. Depriest testified that the victim’s panties and
both of the comforters from the victim’s bed tested negative for semen and positive for
human blood. He said that he could not determine the blood type of the blood found on
one of the comforters but that the blood on the victim’s panties and the other comforter
was the same type as that of the victim. He said that the victim’s sheet and pillowcases
and the paper towels that were submitted to him tested negative for blood and semen.
He explained that semen stains should remain forever if they are not touched, washed,
or otherwise removed. He said that he could not determine the age of a bloodstain but
that after six months or a year blood stains may be more difficult to test because a
chemical in the blood degrades.
The state called Kelly Annette Jones as a rebuttal witness. She testified
that she was the registered nurse who administered a rape kit to the defendant. She
recalled that the defendant was very cooperative and did not appear to be under the
influence of drugs or alcohol while she was administering the kit. She also remembered
that the defendant’s hands were handcuffed in front of him.
I
In his first issue, the defendant contends that the evidence against him is
insufficient to support his conviction for rape of a child because the victim never testified
that he sexually penetrated her but instead said that she was sure that the defendant
kicked her with his knee. Although the defendant recognizes that two doctors testified
that the victim’s injuries were consistent with digital penetration and could not have
been caused by a knee, the defendant points out that the doctors did not testify as to
what object actually caused the injuries. He also notes that Dr. Fischer admitted that
9 she could not tell when the injuries occurred. The defendant also asserts that the
statement he signed is unsupported by the facts.
“Rape of a child is the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if such victim is less than thirteen (13) years of
age.” T.C.A. § 39-13-522 (Supp. 1996). “Sexual penetration” includes any intrusion of
any object or body part into the genital or anal openings of another. T.C.A. § 39-13-
501(7).
Our standard of review when the sufficiency of the evidence is questioned
on appeal is "whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). This means that we may not reweigh the evidence, but must
presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Viewing the evidence in this light, we conclude that sufficient evidence
supports the defendant’s conviction. Officer Mowell testified that the defendant
admitted digitally penetrating the victim. The victim identified the defendant as the
person who caused her injuries, and the victim’s mother testified that the victim was six
years old at the time. Both Dr. Derden and Dr. Fischer testified that the victim’s injuries
were consistent with digital penetration. Based on these facts, the jury was justified in
concluding beyond a reasonable doubt that the defendant committed rape of a child.
II
10 Next, the defendant challenges the length of his sentence. Appellate
review of sentencing is de novo on the record with a presumption that the trial court's
determinations are correct. T.C.A. §§ 40-35-401(d) and -402(d). As the Sentencing
Commission Comments to these sections note, the burden is now on the appealing
party to show that the sentencing is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported
in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not
disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances."
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the 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. § 40-35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
11 potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210 (1990);
see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).
The sentence to be imposed by the trial court is presumptively the
minimum in the range unless there are enhancement factors present. T.C.A. § 40-35-
210(c) (1990).1 Procedurally, the trial court is to increase the sentence within the range
based upon the existence of enhancement factors, and then reduce the sentence as
appropriate for any mitigating factors. T.C.A. § 40-35-210(d) and (e) (1990). The
weight to be afforded an existing factor is left to the trial court's discretion so long as it
complies with the purposes and principles of the 1989 Sentencing Act and its findings
are adequately supported by the record. T.C.A. § 40-35-210 (1990), Sentencing
Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.
With the exception of the presentence report, no evidence was presented
at the defendant’s sentencing hearing. The presentence report reflects that the
defendant has prior convictions for public intoxication, driving on a revoked license,
and two other traffic offenses. The report states that the then thirty-year-old, single
defendant has an eighth-grade education and has admitted that he has a history of
drug and alcohol abuse. According to the report, the defendant was employed by the
City of Kingsport as a member of a paving crew at the time of his arrest. Although the
defendant reported that he has held various other construction jobs, the report states
that his employment history could not be verified. The report also includes a statement
that the defendant submitted insisting that he is innocent.
At the conclusion of the sentencing hearing, the trial court made the
following findings:
1 For Class A felonies comm itted on or after July 1, 1995, the presumptive sentence is the m idpoint of the rang e. See T.C.A. § 40-35 -210(c) (Sup p. 1996).
12 I find you have a history of various varieties of unsocial conduct. You apparently do not seem to realize the consequence of what you have been convicted of doing according to statements made by various persons in the probation report and the Officer in general. You took advantage of a position of trust, one of trust and confidence being permitted to stay in a home with small children. Stand up. I find you guilty as the jury did. You’re fined thirty thousand dollars ($30,000). You’re rendered infamous. You lose all rights of citizenship as a Tennessee citizen. I order you to serve twenty (20) years in the Department of Corrections.
The defendant contends that the presumption of correctness that usually accompanies
a sentence imposed by a trial court, see T.C.A. §§ 40-35-401(d) and -402(d), does not
apply in this case because the trial court did not follow the principles and procedures of
the Sentencing Act. The defendant argues that the trial court failed to begin its analysis
with the presumptive sentence. He asserts that the trial court only found one
enhancement factor, an abuse of a position of private trust, see T.C.A. § 40-35-114
(15), and that the presence of that enhancement factor does not justify his twenty-year
sentence.
We agree with the defendant that the trial court should have been more
explicit regarding its sentencing process and findings. Yet, the trial court’s comments
reflect that it enhanced the defendant’s sentence based upon his history of criminal
behavior and his abuse of a position of private trust. See T.C.A. § 40-35-114(1) and
(15).
With respect to the defendant’s history of criminal behavior, the
presentence report states that the defendant has been convicted of public intoxication,
driving on a revoked license, and two other traffic offenses. In addition, the report
reflects that the defendant admitted that he has a history of illegal drug use, including
the use of marijuana, cocaine, and valium. Based on these facts, the trial court was
justified in concluding that the defendant had a history of criminal behavior.
13 However, we are bound by our supreme court’s decision in State v.
Kissinger, 922 S.W.2d 482 (Tenn. 1996), to conclude that the trial court improperly
enhanced the defendant’s sentence based upon his abuse of a position of trust. In
Kissinger, the court articulated the standard for determining the existence of a position
of trust solely in terms of the defendant and victim. The court gave the following
description of the requisite position of trust :
The position of parent, step-parent, babysitter, teacher, coach are but a few obvious examples. The determination of the existence of a position of trust does not depend on the length or formality of the relationship, but upon the nature of the relationship. Thus, the court should look to see whether the offender formally, or informally stood in a relationship to the victim that promoted confidence, reliability, or faith. . Kissinger, 922 S.W.2d at 488. Applying this standard, the court determined that factor
(15) applied to Kissinger’s sentences for aggravated rape and aggravated sexual
battery because he had been like a surrogate father to his victims and had been trusted
by their mother to protect and care for them.
The court distinguished Kissinger’s case from that of Guy Phelan
Roberson. Roberson was convicted of the aggravated rape of a girl who was eight
years old. The only relationship between him and the victim’s parents was that he was
the father of the victim’s step-father’s niece’s boyfriend. He had planned to spend the
night in the victim’s home on the night of the offense because he did not have
transportation to his house. In refusing to apply factor (15) to Roberson’s sentence, the
supreme court noted that he was a casual visitor in the home and that there was no
proof that suggested that he visited frequently or that the victim or other children at the
home were placed in his care. Because the record failed to establish that Roberson
occupied “any relationship to [the victim] that promoted confidence, reliability or faith in
him,” the court held that factor (15) could not be used to enhance his sentence. Id. at
489.
14 The record in this case reflects that the defendant was a frequent visitor to
the Quillen home based on the relationship he shared with the victim’s mother and
step-father, but it fails to show that the defendant occupied a position of trust with
respect to the victim. Although T.C.A. § 40-35-114(15) does not specify that the
position of trust must be solely between the victim and the defendant, under Kissinger,
our inquiry with respect to the application of factor (15) must end with our determination
that the record does not establish that the defendant “stood in a relationship to the
victim that promoted confidence, reliability, or faith.” Id. Thus, application of factor (15)
to the defendant’s sentence was inappropriate under Kissinger.
In this respect, we believe the supreme court should expand Kissinger’s
holding in the context of a defendant who abuses the trust of a parent or guardian of a
minor child to commit a crime against the child. A parent or child’s custodian has a
legal duty to protect a minor child and to act in the best interests of that child. A six-
year-old child, as in this case, has no control over who the parent or custodian allows to
stay in the home, including giving the person the run of the home. In this sense, we
believe that the trust placed in the defendant by the victim’s custodians by which the
defendant was given free access to the home, which is the victim’s protective
environment, includes a trust for the benefit of the victim’s health and welfare that
should be covered by factor (15). However, we are bound by Kissinger.
The state contends that the trial court should also have enhanced the
defendant’s sentence based upon the vulnerability of the victim because of her age and
upon the defendant’s history of unwillingness to comply with conditions of a sentence
involving release into the community. See T.C.A. § 40-35-114(4) and (8). However,
neither of these factors are supported on the record before us. Although factor (4),
involving a particularly vulnerable victim, may be applied to enhance the sentence of a
defendant convicted of rape of a child, in this case the state has not met its burden of
15 proving that the victim had limitations that made her particularly vulnerable. See State
v. Adams, 864 S.W.2d 31, 35-36 (Tenn. 1993).
Also, we do not believe that the record before us supports enhancement
of the defendant’s sentence based upon his inability to comply with conditions of a
sentence involving release in the community. The only proof in the record that arguably
supports application of this factor is a paragraph in the presentence report that states
that the defendant admitted that he was placed in a juvenile home after violating a
probationary sentence as a juvenile and that his juvenile records are unavailable
because they have been expunged. The circumstances surrounding the alleged
probation violation are not fully before us, and expungement of the defendant’s juvenile
records reflects ultimately successful compliance with the conditions that were placed
upon him. We refrain from applying factor (8) in this case.
Beginning with the presumptive sentence of fifteen years and increasing
the defendant’s sentence based upon the one applicable enhancement factor, his slight
history of criminal behavior, we modify the defendant’s sentence to sixteen years. The
judgment of the trial court is affirmed in all other respects.
Joseph M. Tipton, Judge CONCUR:
Gary R. Wade, Judge
William M. Barker, Judge