IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH SESSION , 1997 November 12, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9509-CR-00290 )
Appellee, )
) DAVIDSON COUNTY
)
V. )
) HON. SETH NORMAN, JUDGE MICHAEL LYNN WALTON, )
)
Appe llant. ) (RAPE AND OFFICIAL MISCONDUCT)
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter Washington Square Two, Ste. 417 222 Se cond A venue N orth MICH AEL J. F AHEY , II Nashville, TN 37201 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
Nashville, TN 37243
VICTO R S. JO HNS ON, III District Attorney General
JOHN ZIMMERMAN
Assistant District Attorney General
KIMB ERLY L. HATTAW AY-HAAS Assis tant D istrict Atto rney G enera l Washington Square Two, Suite 500 222 Se cond A venue N orth Nashville, TN 37201
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Michael Lynn Walton, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted of two coun ts of offic ial misconduct in one trial and two counts of rape in another trial. Both trials were jury trials in the Criminal Court of Davidson County. He was sentenced to one (1) year on each of the official misconduct convictions and eight (8) years on one rape conviction a nd nine (9) yea rs on the other ra pe conviction. These se ntences we re ordered to run concurrently which left the Defendant with an effective sentence of nine (9) years. The Defendant argues three issues in this ap peal: (1) whether the evidence wa s insufficient to suppo rt the convictions for rape; (2) whether the trial court erred in denying the Defenda nt’s motion for an instruction as to statutory rape as a lesser included offense; and (3) whether the trial court erred in denying probation as to the counts of official misc onduc t. We affirm the jud gmen t of the trial cou rt.
I.
The Defe ndan t’s first issu e is whether the evidenc e was s ufficient to support the verdict of the jury for the Defendant’s conviction for rape. When an accused challenges the su fficienc y of the c onvictin g evide nce, th e stan dard is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime b eyond a reason able do ubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses, the weight and
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value to be g iven the evidence , as we ll as all factual issues raised by the evidence, are reso lved by the trier of fact, not th is court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 198 7). Nor may this court reweigh or reevaluate the evidenc e. State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78).
A jury verdict approved by the trial judge accredits th e State ’s witnesses and resolves a ll conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the e vidence and all infere nces the refrom. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accu sed h as the burde n in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Grace, 493 S.W.2d at 476.
In his first trial, the Defe ndant w as con victed of two counts of official misconduct and there was a mistrial on the rape charges. At a second trial, the Defen dant wa s convicte d of the two counts o f rape. The proof in that trial is as follows.
The Defendant was a police officer with the Metro politan Nash ville Davidson Coun ty Police D epartm ent. W e will refer to the m inor victim in this case by his initials, J.C., rather than by his full name. In July of 1992, thirteen- year-o ld J.C. ran away from his home in Kentucky and came to Nashville. He made his way to Riverfront Park in the downtown area of Nashville. The first
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evening J.C. was at Riverfron t Park the Defendant approached him. The Defendant was dressed in his police uniform even though he was off-duty. He led J.C. to his personal car and drove him to his home in the Bellevue area. On the way to Bellevue, the Defe ndan t stopp ed at M cDon ald’s a nd go t the victim something to eat. When they arrived at the Defendant’s home they ordered pizza. J.C. took a shower and was given clothes by the Defendant. The Defendant then took a show er and w as dres sed in on ly a towel. He to ld the victim he co uld sle ep in the m aster b edroo m, an d the D efend ant wo uld sleep on the couch downs tairs. The victim wen t to sleep and awoke to the Defendant rubbing the victim’s penis. The Defe ndan t then p hysica lly held J .C. do wn wh ile he proceeded to eng age in fellatio and then anal intercourse. The boy struggled, but was unab le to get away from the Defendant. The Defendant then went downstairs, and J.C. went to sleep. Early the next morning the telephone rang, and J.C. answered the phone. He then hand ed it to the D efenda nt. Alberta Harris testified that she called the Defendant’s house sometime after 6:30 a .m., but before 12:30 p.m., July 27, 1992. She stated that a youn g ma le answered the phone. She asked to speak with the Defendant, and the Defendant then came to the phone. The Defendant dropped the victim off at Riverfront Park later that morning and told him he would be back after he got off his shift at 11:00 p.m.
J.C. was still in the Riverfront Park area wh en the D efenda nt’s shift was over. The Defendant told J.C. that he was going to take him to J uvenile Detention, however, the Defendant ag ain drove the victim to his house. The Defendant again held J.C. down and proceeded to engage in fellatio and anal intercourse. J.C. then went to sle ep. At so me po int during the ev ening, Je ff
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Wh ite came to visit the Defendant. The Defendant told J.C. to hide in the closet. He heard the Defendant and the other man discuss swapping police radios and an upcom ing party. The male visitor testified at trial that he and the Defendant did indeed discuss a police radio and getting together that weekend. The ne xt morning, the Defe ndant d ropped J.C. off at Vand erbilt U niversity . The v ictim spent most of the day there and then walked to Riverfront Park.
That evening the victim c ame in to contac t with two men from Murfreesbo ro who were downtown to enjoy the nightlife. The victim told them several stories as to why he was in that area at that time of night. He persuaded the two men to drive h im out to Bellevue to find the Defendant’s apartment and they ultima tely becam e frustrated with the boy. T he me n decide d to take h im to the police in downtown Nashville. The first officer they encountered at the station yelled at J.C. when he said that he was n ot a run away , told the men to leave him in Riverfront Park, and said that if he was a runaway the officer would pick him up later. H owev er, the tw o me n did n ot wan t to leave J.C. alo ne in R iverfront Park. The m en the n des cribed bad th ings th at cou ld happen to a ch ild left on his own in the world. J.C. began to cry and agreed to be taken to the police station.
The men took J.C. to the Criminal Justice Building. There they received help from Officer Nicolas Marino who, at the time of the incide nt, worked in the Warrants Division. J.C. was brought into the building, and he was crying. The officer attempted to find out whether J.C. was a runaw ay. Officer Marino gave J.C. something to eat and drink. He asked J.C. what his name was and J.C. gave him a false name. While J.C. told Officer Marino a false story, another
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officer, Officer Wa ggone r, called Ke ntucky a nd disco vered J.C . was a runaway, was thirteen years old, and had stolen a car. They confronted J.C. with th is information and then took him over to the Juven ile facilities . At this point J .C. told the officers that he had been staying with a p olicem an wh ile he h ad be en in Nash ville. One of the o fficers s tated th at he d id not th ink an officer w ould take him to his house a s the departm ent policy was to tak e runaways to the J uvenile facility. J.C. told them that the man with whom he had been staying had a badge, uniforms in his closet, a p olice radio , and a pa tch that rea d David son Co unty Metro Police . The v ictim told the officers that the policeman he had stayed with for a couple of nights was named Mike, but that he could not remember his last name. Officer Waggoner asked the victim if the policeman did anything to him, and J .C. ind icated that the officer h ad en gage d in fella tio with him. J.C. gave a physical description of “Mike” to Officer W aggone r.
Officer Miller was called to meet the other officers and J.C. at the Juven ile facility. O fficer M iller was to con tinue th e inves tigation into the victim’s assertions. At the time of the incident, Officer Miller worked in the Personal Crimes Homicide Division. He received informati on from J.C. concerning the perpetrator being a Me tro police officer, a general de scription of the area w here he was taken and a physical description of the officer. He was also told that the officer’s name was M ike, bu t that the victim did not know the officer’s last name. J.C. also gave O fficer Miller a desc ription o f the offic er’s ca r. Office r Miller d id not recognize the offic er as d escrib ed by J .C.. At th is time, the victim also described what ha d happ ened to him wh ile he was with Mike .
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Officer Miller the n had the victim take h im to th e office r’s condominium. They also called uniformed officers who were working in the area, and they were able to loc ate the condominium. The victim gave Miller a detailed description of the re siden ce. W hen th ey arrive d at the cond omin ium, th e vehic le that the victim had describe d was p arked in fro nt of the bu ilding. Serg eant Sm ith stayed in the car with the victim, while Officer Miller and one of the uniformed officers, Officer Chestnut, went to the front door. Another uniformed officer went to the back door. The Defendant came to the front door, and Officer Chestnut recognized him as a Metro Police Officer. The officers identified themselves and told the Defendant about the allegation. The Sergeant and the victim had a clear view of the De fendan t’s door an d the Se rgeant w aved to O fficer Miller to ind icate that the victim had re cogn ized th e Def enda nt as th e office r who h ad tak en him home. The Defendant gave the officers consent to search the residence. Officer Miller asked if there had been any thefts or break-ins at the residence, and the Defendant indicated that there had not. The Defendant and Officer Miller then walked through the house. Officer Miller told the Defendant that he wanted to make sure nothing had been damaged, but the real reason was that Officer Miller was attempting to verify the victim’s desc ription o f the res idenc e. The victim’s descriptio n was a ccurate .
J.C. was the n broug ht to confront the Defendant. When he was brought to the Defendant, Defendant turned pale and started shaking. J.C. was wearing the De fenda nt’s clothes at the time. The Defendant denied that he knew the victim, but did acknowledge that J.C. was wearing his clothes. However, the Defendant stated that he did not know how the victim got his clothes. J.C. then made an identifica tion of the Defendant. The Defendant told the victim that he
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was crazy. The officers then called the Sexual Abuse Division and evidence was gathered at the Defendant’s residence.
The victim’s fingerprints were found inside the Defendan t’s residence on a bottle of co logne and in side th e Def enda nt’s veh icle on the pa ssen ger’s side. A pair of ex ercise sh orts and a t-shirt which were fo und in the De fenda nt’s hamper were se nt to be tes ted for bo dy fluids. Th e lab wa s unab le to test the t- shirt. Many stains were on the shorts. The victim and the Defend ant would ha ve had distinguishable semen, but not distinguishable saliva. A semen stain that could have been from the victim was found on the shorts. There was also a saliva stain, which could have be en from either the vic tim or the D efenda nt. A golf shirt and a pair of jeans that the victim was wearing when taken to the Defe ndan t’s residence by the other officers were also sent to the lab. A trace amount of semen stain was found on the golf shirt. There was no testimony regardin g the origin of this stain.
The Defendant testified at trial. His version of the facts is as follows.
He denied that he raped the victim. When Alberta Harris called, Defendant claimed his friend, Darryl Witkowski, answered the phone. Mr. Witkowski was in his early twenties at the time of the incident. He was staying at the De fenda nt’s residence because he was working on his car at the Defendant’s house. The Defendant was not aw are that his shorts were in the hamper, but knew that they were his shorts. The Defendant had just moved in his condominium and his parents and Mr. W itkows ki also h ad ac cess to his re siden ce. Mr . W itkows ki did not have a key, but the fron t door kn ob cou ld be turne d in such a way as to get in the house. Mr. W itkowski knew h ow to get in the res idence in this m anner.
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Mr. Witkowski would also use the Defe ndan t’s car w hen h e had the De fenda nt’s permission to do so. The Defendant stated that Witko wski look ed like him . He was the same height and size and also had a receding hairline.
The Defendant acknowledged that the victim had on his clothes when he was confronted by the other officers. The Defendant denied that he took the victim to his condominium or that the victim was ever in the condominium at the same time he was there. The Defendant had no answers as to how the victim could describe his condominium, how the semen stains were on his shorts, or how the victim knew of the conversation between the Defendant and Jeff White.
W e conclude that there is sufficient evidence for a rational trier of fact to find the D efenda nt guilty of rap e. The Defendant argues that the conviction cannot be supported based on the element of force or coercion because the victim returned to the Defendant’s home a second night. The evidence set ou t at trial sh ows th at the D efend ant ph ysically h eld the victim down both nights wh ile perpetra ting sexua l acts on h im. There is sufficient evidence to convict th e Defe ndant o f rape.
This issu e is withou t merit.
II.
The Defendant’s second issue is that the trial court erred in not instructing the jury o n statu tory rap e as a lesser included offense of rape. The offense of rape, of w hich the D efenda nt was co nvicted, is the “unlawful sexual
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penetration of a victim b y the defe ndant or of the defend ant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act. . . .” Tenn. Code Ann. § 39-13-503. Statuto ry rape is defined as “sexual penetration of a victim by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and th e defe ndan t is at least four (4) years o lder than the victim.” Tenn. C ode Ann . § 39-13-506 (a).
This court held in State v. Woodcock , 922 S.W.2d 904 (Tenn. Crim.
App. 1995), that statuto ry rape is not a le sser in clude d offen se of ra pe. Th is court stated:
“[A]n offens e is ne cess arily inclu ded in anoth er if the elements of the greater offense, as those elements are set forth in the indictme nt, include, but are not congru ent with, all the eleme nts of the le sser.”
Howard v. State, 578 S.W .2d 83, 85 (Tenn . 1979). It is clear that the offense of statutory rape includes an age element whereas the offense of rape does not, and the offense of rape includes the element of force whereas th e offense of statutory ra pe doe s not.
Thus , statutory rap e is not a les ser includ ed offen se of rap e . . . .
Woodcock , 922 S.W.2d at 913.
W e agree with this analysis. Statutory rape is not a lesser included offense of rape. Neither is statutory rape a “lesse r grade ” offens e of rap e. This court recen tly obse rved in State v. Michael Lynn Ealey, C.C.A. No. 03C01-9609- CR-00333, Greene County (Tenn. Crim. App., Knoxville, June 17, 1997) (no R ule 11 application filed), that statutory rape is not a lesser grade offense of the offense of rape o f a child. Our court stated tha t even th ough statuto ry rape is included in the same Part of Tennessee Code Annota ted as sexua l assau lt
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crimes, which inc ludes rap e, this doe s not ipso facto make statutory rape a lesser grade or offense of a sexual assault crime. Specifically, our court stated:
Moreover, the very nature of the statutory rape o ffense is funda men tally different from the sexual assault crimes. For instance, the sexual assault crimes all require some form of “unlaw ful” contact betwe en the accu sed and the victim; statutory rape does not. The age of the defendant is irrelevant with respect to all of the sexual assault crimes; it is a crucial element of sta tutory rape. All of the sexual assault crimes contemplate the lack of effective consent by the victim; statutory rape contemplates circumstances in whic h the s exual r elation s are a dmittedly cons ensu al. In short, neither [State v. T rusty, 919 S.W.2d 305 (Tenn. 1996)] nor the statutory scheme nor a consideration of the nature of statutory rape convinces us that it is a lesser grade or class of the rape of a child offense charged in this case.
Ealey, slip op. at 9.
W e agre e with th e ana lysis in Ealey and hold that sta tutory rape is not a less er grade or class o f the offens e of rape charge d in this cas e.
There fore, this issu e is withou t merit.
III.
The Defenda nt’s third issue is that the trial court erred in denying probation as to the counts of official misconduct. A defendant who “is an espe cially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-1 02(6). Our sentencing law also provides that “convicted felons committing the most se vere
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offenses, possessing criminal histories evincing a clear disregard for the laws and mora ls of society, a nd evinc ing failure o f past efforts at rehab ilitation sh all be given first priority regarding sentences involving incarceration.” Tenn. Code Ann. § 40-35-1 02(5). Thus, a defendant sentenced to eight years or less who is not an offender for whom incarceration is a priority is presume d eligible for alternative sentencing unless sufficient evid ence re buts the presumption. However, the act does not provide that all offenders who meet the crite ria are entitled to such re lief; rather, it requires that sentencing issues be determined by the facts and circumstances presen ted in eac h case . See State v. Taylor, 744 S.W.2d 919, 922 (T enn. C rim. App . 1987).
Additionally, the princip les of sentencing reflect that the sentence shou ld be no greater than that deserved for the offense committed and should be the least severe measure necessary to achieve the purposes for which the senten ce is imp osed. Tenn . Code Ann. § 4 0-35-10 3(2) - (4). The court s hould also consider the potential for rehabilitation or treatment of the defendant in determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).
When impo sing a sente nce o f total co nfinem ent, ou r Crim inal Sentencing Reform Act mandates the trial court to base its decision on the considerations set forth in Tennessee Code Annotated section 40-35-103. These considerations which m ilitate against a lternative se ntencing include: th e need to protect society by restraining a defendant having a long history of criminal condu ct, whether confinement is particularly appropriate to effectively deter others likely to commit a similar offense, the need to avoid depreciating the seriousness of the offense, and the need to order confinement in cases in which
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less restrictive measu res have often or re cently bee n unsu ccessfu lly applied to the defe ndant. T enn. C ode An n. § 40-35-1 03(1) (A ) - (C).
In determining whether to grant probation, the judge must consider the nature and circumstances of the offense, the defendant’s criminal record, his background and social history, his present condition, including his physical and mental condition, the deterrent effect on other criminal activity, and the likelihood that probation is in the best interests of both the p ublic and the defen dant. Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The burden is on the D efenda nt to show that the se ntence he rece ived is imp roper an d that he is entitled to probatio n. State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).
The Defendant’s total sentence for his combined convictions is nine (9) years. How ever, th e Def enda nt’s co nviction s for offic ial misc ondu ct ma y still be considered for probation. If a Defendant’s multiple conviction sentence structure exceeds eight years, the individual convictions can still be considered for probation if they fall within the probation eligibility criteria. Tenn. Code Ann. § 40-35-303(a), Sentencing Commission Comments; State v. Langston, 708 S.W .2d 830, 832 -33 (Tenn . 1986).
The Defe ndan t’s con victions for officia l misconduct are Class E felonies. He was sentenced to one year for each count as a Range I Standard Offender. There is a presumption that the Defendant is eligible for probation as to his official miscondu ct convictions. How ever, the trial court denied his request for proba tion on the se cou nts.
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W e agree w ith the trial cou rt that the Defendant should not be granted proba tion for h is official misconduct convictions. The Defendant does have an excellent work history and social history. He has never been convicted of another crime. However, we must emphasize the seriousness of this crime. The Defe ndan t, a polic e office r, while in uniform , picked up a youn g ma le runaway and took him back to his house and raped him. A police officer is an official who people should be able to turn to without hesitation or fear for their personal safety in times of trouble. The circumstances of an offense may be an approp riate factor for the denial of p robation . State v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. A pp. 198 2). W e conclude that the circumstances of this offense suppo rt the den ial of proba tion.
W e also note that the Defendant’s conviction for rape where he was sentenced to eight yea rs would be eligible fo r probatio n. However, the Defendant does not appeal on these grounds. We conclude that even if he had appealed on this issue he would be unsuccessful for the reasons stated above, and because a breach of trust may be the basis for the den ial of proba tion. Woodson v. State, 608 S.W .2d 591 (Te nn. Crim. Ap p. 1980).
There fore, this issu e is withou t merit.
We affirm the ju dgme nt of the trial co urt.
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THOMAS T. W OODALL, Judge
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CONCUR:
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JOSEPH M. TIPTON, Judge
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JOE G. RILEY, Judge