IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED NOVEMBER 1996 SESSION January 26, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00237 ) Appellee ) RHEA COUNTY ) v. ) HON. THOMAS W. GRAHAM, ) JUDGE BILL SANDELL, ) ) aggravated sexual battery Appellant )
For the Appellant: For the Appellee:
Philip A. Condra Charles W. Burson District Public Defender Attorney General & Reporter
B. Jeffrey Harmon Elizabeth T. Ryan Assistant Public Defender Assistant Attorney General P.O. Box 220 450 James Robertson Parkway 204 Betsy Pack Dr. Nashville, TN 37243-0493 Jasper, TN 37347
James Michael Taylor District Attorney General
Will Dunn Assistant District Attorney General 265 Third Ave., Ste. 300 Dayton, TN 37321
OPINION FILED ________________________
AFFIRMED
JOHN K. BYERS SENIOR JUDGE OPINION
The defendant was indicted for rape of a child and convicted of the lesser
included offense of aggravated sexual battery. He was sentenced to ten years in
prison and was fined $25,000.00, which the trial judge reduced to $10,000.00
because of the defendant’s indigency.
On appeal, the defendant challenges the trial court’s method of impanelling
the jury as inconsistent with Rule 24 of Tennessee Rules of Criminal Procedure, the
trial court’s denial of a mistrial when testimony of a continuing pattern of molestation
was given, the trial court’s admission of testimony as to the victim’s “fresh complaint”
and the trial court’s imposition of a ten-year sentence and a $10,00.00, alleging that
the punishment is excessive.
We affirm the judgment of the trial court.
The defendant lived with his wife, Tammy, and her children, Gary Barnes and
the victim. The victim was 12 years of age. On October 4, 1992, the defendant
gave his wife some Valium, and she fell asleep in the living room. After his wife fell
asleep, the defendant came to the victim’s room. He pulled down her jogging pants
and underwear. He then told her to pull up her underwear and walk through the
living room to the washer and dryer. The victim testified that he placed her seated
on top of the washing machine, pulled down her pants and underwear again, pulled
down his pants and placed his penis almost completely into her vagina. At this
point, the victim’s brother returned to the trailer and defendant stopped, telling her to
go into her mother’s bedroom and pretend she had fallen asleep there.
Standing in front of the washer, a person can view the front door and the
living room, where the victim’s mother was sleeping. A door opposite the washer
and dryer leads to Tammy Sandell’s bedroom. After Gary Barnes came into the
trailer, the defendant announced that it was bedtime and that the victim needed to
go to her own bedroom. She walked through the living room to her bedroom, and
2 her brother noticed that she seemed upset. He asked her whether anything was
wrong, but she told him that nothing was wrong, she was just sleepy.
The next day, the victim told her friend, Ladawya Morgan, what the defendant
had done to her the night before. She then talked with a teacher, Amy Bauer, about
what had happened. As a result of these conversations, the victim decided to tell
her mother what had happened. Ladawya Morgan went to the victim’s home with
her after school to lend her support. However, when they reached the victim’s
home, Tammy Sandell was not there.
The victim told her brother what had happened. He went to his grandparent’s
house and got a pistol. When the defendant and Tammy Sandell returned home,
Gary Barnes pointed the pistol at the defendant. His uncle took the gun away from
him, and he went back to his grandparent’s house and called the police. In the
meantime, the victim, Ladawya, Tammy Sandell and the defendant went inside the
trailer. The defendant and the victim talked privately for a time, and she testified
that he threatened her father and her mother. When the officer arrived, he
suggested that everyone go to the Sheriff’s office and make a report. The
defendant, Tammy Sandell, Ladawya and the victim all traveled to the police station
in the defendant’s truck.
At the police station, Officer Charles Byrd spoke to all of the parties as a
group. The victim, who was crying and very upset, told him that nothing had
happened, that she had made it up because she was angry with the defendant.
Officer Byrd and Karen Young, who works for the Department of Human Services,
then spoke with the victim alone in Officer Byrd’s office. She maintained that
nothing had happened. Officer Byrd told everyone that they were free to go.
The defendant, Tammy Sandell, Ladawya and the victim left the police
station. As they were riding in the truck, either Tammy Sandell or the victim said to
the defendant, “Bill, you done it. You know you did.” The defendant admitted that
3 he had done it and said that he would get his stuff together and leave but “just don’t
go to the law.”
After dropping off Ladawya, the defendant, Tammy Sandell and the victim
returned to the trailer. The victim’s father, Kenny Caraway, had heard about what
had happened, and he came to the trailer that same evening. He testified that the
defendant told him to “give him two days and not go to the law, give him two days,
he’d get his stuff and be out of here and [he’d] never see his face again.”
The defendant challenges the trial court’s method of impanelling the jury as
inconsistent with TENN. R. CRIM . P. 24. The trial court seated twelve prospective
jurors in the box and an additional twelve prospective jurors in the first two rows
behind the bar for voir dire. The defendant complains that this is in violation of Rule
24(c), which provides:
Peremptory Challenge and Procedure for Exercising. -- After twelve prospective jurors have been passed for cause, counsel will submit simultaneously and in writing, to the trial judge, the name of any juror either counsel elects to challenge peremptorily. Upon each submission each counsel shall submit either a challenge or a blank sheet of paper. Neither party shall make known the fact that the party has not challenged. Replacement jurors will then be examined for cause and, after passed, counsel will again submit simultaneously, and in writing, to the trial judge the name of any juror counsel elects to challenge peremptorily. This procedure will be followed until a full jury has been selected and accepted by counsel. Peremptory challenges may be directed to any member of the jury, and counsel shall not be limited to replacement jurors. Alternate jurors will be selected in the same manner. The trial judge will keep a list of those challenged and, if the same juror is challenged by both parties, each will be charged with a challenge. The trial judge shall not disclose to any juror the identity of the party challenging him.
It is the defendant’s burden to prove prejudice in the selection of a jury. State
v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). Appellant argues that his ability to
fully examine prospective jurors was hampered by the fact that some of these jurors
were too distant for him to be able to fully gauge their expressions and reactions to
questions. He submitted an affidavit in his motion for new trial in which he testified
that he had measured the distance between the podium where he stood and the
4 second row behind the bar and estimated an average of 27 feet between him and
the farthest prospective jurors. We do not find the defendant was prejudiced by the
distance between the prospective jurors and the questioning attorneys. However,
we do strongly recommend, as the Supreme Court did in Coleman, that the trial
court follow the proper procedure for impanelling juries in the future to avoid
prejudice to the judicial process. See Coleman, 865 S.W.2d at 458.
The defendant also argues that the trial court erred in denying a mistrial when
witnesses gave testimony implying a continuing pattern of molestation despite the
fact that the State was only prosecuting one occurrence. We find the incidents to
which the defendant refers did not require the trial court to declare a mistrial. The
decision to grant a mistrial is a matter of discretion for the trial court, State v.
McPherson, 882 S.W.2d 365 (Tenn. Crim. App. 1994), which should be exercised
with “the greatest caution” and only in “the most urgent circumstances.” State v.
Witt, 572 S.W.2d 913, 917 (Tenn. 1978)
The trial court properly provided curative instructions on the two occasions
where witnesses offered spontaneous, nonresponsive testimony which suggested
that there might have been previous sexual molestation of the victim by the
defendant. These curative instructions were well-crafted so they would not highlight
the objectionable testimony. We must assume that the jury followed the instructions
of the trial court. State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987)
(citing State v. Lawson, 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).
The defendant cites two other incidents which he argues required a mistrial.
One was a question by the attorney general, who asked the victim whether the
defendant had ever threatened her previously, to which the witness did not respond.
Another incident was the victim’s testimony on redirect that she and the defendant
had serious problems. We do not find that this would suggest prior sexual batteries
to the jury, and it is, in fact, very similar to testimony that the defendant elicited in his
5 cross-examination of the victim to demonstrate that the victim and the defendant did
not get along well.
The defendant also argues that the trial court erred in allowing Ladawya
Morgan Luna, Amy Bauer and Officer Charles Byrd to testify as to the fact and
details of what Tanya told them about what happened the evening before. This
testimony was allowed into evidence on the theory of fresh complaint, which has
since been held not not to apply in cases where a child is the victim of sex abuse.
State v. Livingston, 907 S.W.2d 392 (Tenn. 1995). The state argues that there was
no prejudice to the defendant since the evidence was admissible as corroborative
evidence of prior consistent statements.
The defendant argues that the prior consistent statement rule should not
apply in this case, since the state first brought out the victim’s inconsistent statement
to Officer Byrd during its direct examination. However, the defendant clearly
attacked the victim’s credibility on cross-examination. Defense counsel asked her
three times if she had lied to Officer Byrd and Ms. Young and then asked if she then
told them “a new story.” He attempted to show that the victim was mad at her step-
father because of disagreements between him and her mother. He attempted to
show that she was frequently in trouble for lying. He also tried to show that the
events on that evening as the victim described them were unlikely, since it took
place not far from where her mother was sleeping and because of the medical
evidence. He asked whether she told her brother the truth when he came home that
night.
The defendant was clearly attacking the victim’s credibility and suggesting
that she had fabricated her testimony because she was mad at the defendant. The
testimony of Ladawya Morgan Luna and Amy Bauer is clearly admissible for
corroboration of Tanya’s testimony by statements consistent with her testimony
made prior to her inconsistent statement. See State v. Meeks, 867 S.W.2d 361,
374 (Tenn. Crim. App. 1993) cert. denied 114 S. Ct. 1200 (1994). The trial judge
6 gave the jury a limiting instruction, explaining that their testimony as to the facts and
details of what the victim told Ladawya Morgan and Amy Bauer was not evidence
that what the victim said was true, but only evidence as to the victim’s credibility.
Officer Byrd testified that the victim told him that nothing had happened, that she
was mad at the defendant. He did not testify as to anything else the victim told him.
We find this statement did not prejudice the defendant.
Finally, the defendant objects to the sentence and fine imposed upon him as
excessive. The range for a Range I offender for a Class B felony is eight to twelve
years.
Review of the length, range or manner of service of a sentence is de novo on
the record, accompanied by a presumption that the determinations of the trial court
are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness only
applies upon an affirmative showing that the trial court considered the relevant
sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
burden is upon the defendant to show the impropriety of the sentence. T.C.A. § 40-
35-401(d) Sentencing Commission Comments.
The presumptive sentence in a felony case is the minimum in each range
unless the enhancement factors outweigh the mitigating factors. The court must
start at the minimum sentence and enhance accordingly for the enhancement
factors and reduce accordingly for the mitigating factors. T.C.A. § 40-35-210(c).
The trial court in this case found three enhancement factors applied and gave some
consideration to two mitigating factors.
The trial court applied as enhancing factors that defendant has a previous
history of criminal convictions or criminal behavior, that the offense involved a victim
and was committed to gratify the defendant’s desire for pleasure or excitement and
that the defendant abused a position of private trust.
The trial court improperly considered the fact that the offense was committed
to gratify the defendant’s desire for pleasure or excitement as an enhancing factor.
7 The offense of aggravated sexual battery requires as an element of the offense that
the touching be for the purpose of sexual arousal or gratification and, therefore, this
intent cannot also be used as an enhancing factor. State v. Kissinger, 922 S.W.2d
482, 486 (Tenn. 1996).
The state argues that the court could have applied the enhancement factor
that the defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release into the community, because the
presentence report indicates that the defendant was found in violation of his
probation for an aggravated assault conviction. We agree that this factor applies.
The trial court considered the fact that defendant’s prior convictions occurred
at a young age as partial mitigation of the enhancement factor of a previous history
of criminal convictions or criminal behavior. He also somewhat considered as a
mitigating factor that the defendant had provided his family with necessities. We do
not find this mitigating factor to be supported by any proof in the record. We agree
with the attorney general’s argument at sentencing that this mitigation factor is
extremely inappropriate considering the victim of this offense was the defendant’s
step-daughter.
The defendant argues that the trial court erred in failing to consider that the
defendant’s conduct neither caused nor threatened serious bodily injury in mitigation
of his sentence. The state argues that the trial court properly did not apply this
factor because his attempts to penetrate the vagina of the victim, who had not fully
passed through puberty, could have torn her hymenal membrane or caused other
internal damage. The trial court stated that, if this factor did apply, “very, very little
weight” could be accorded to it. We agree.
We find the balance of the applicable enhancement and mitigating factors is
in favor of enhancement. The record supports the trial court’s sentence of ten
years’ imprisonment.
8 The defendant also challenges his fine, which is reviewable under the same
standard as a sentence of incarceration. State v. Bryant, 805 S.W.2d 762 (Tenn.
1991). The fine should be based on the factors to be considered in setting the
sentence and upon the defendant’s ability to pay the fine. Bryant, 805 S.W.2d at
766. Although the defendant is indigent, he committed a serious crime and his
sentencing factors balance toward enhancement. W e find that the fine is
appropriate and not excessive.
We affirm the judgment of the trial court and, finding the defendant to be
indigent, assess the costs of appeal to the State of Tennessee.
John K. Byers, Senior Judge
CONCUR:
Joseph M. Tipton, Judge
Paul G. Summers, Judge
9 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
NOVEMBER 1996 SESSION FILED 26, January 28, 1998 STATE OF TENNESSEE, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) No. 03C01-9606-CC-00237 ) ) Rhea County v. ) ) Honorable Thomas W. Graham, Judge ) BILL SANDELL, ) (Aggravated sexual battery) ) Appellant. )
CONCURRING OPINION
I concur in the majority opinion’s results and most of its reasoning. However, I
question the extent to which it appears to allow the victim’s previous statements to
others to be admitted into evidence to corroborate her testimony once her credibility
was attacked. It is not every attack on credibility that allows for the use of prior
statements.
Ordinarily, prior consistent statements of a witness are not admissible to bolster
the witness’ credibility. State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980).
Use of such statements has been viewed as cumbersome, a waste of time, confusing
and unduly prejudicial. Without the prohibition, a party could use a parade of witnesses
who heard the witness say something similar, resulting in the jury being influenced to
decide the case on the repetitive nature of or the contents of the out-of-court
statements rather than on the in-court, sworn testimony. See Curtis v. State, 167 Tenn.
430, 437, 70 S.W.2d 364, 366 (1934); Neil P. Cohen, et al., Tennessee Law of
Evidence § 608.11, at 360 (3d ed. 1995). However, once the opponent of a witness
10 brings the issue of credibility to the forefront by attacking or impeaching that witness’
testimony, through cross-examination or other evidence, we allow certain types of
witness rehabilitation to occur through corroborative proof to rebut the attack. A key
component for admissibility, though, is that the prior statement must be relevant to
rebutting the attack.
In this case, as the majority opinion points out, the defendant sought to show
that the victim was mad at him because of disagreements between him and her mother.
The defendant’s goal was to show that the victim had a motive to accuse him falsely.
However, the record reflects that the defendant was attempting to show that the motive
existed at the time of the initial accusation and carried forward through the trial. Under
these circumstances, the prior consistent statements did not rebut this attack -- no
statement was shown to have occurred before the motive to fabricate was implied to
have risen. See, e.g., Sutton v. State, 155 Tenn. 200, 204, 291 S.W. 1069, 1070
(1927); Dietzel v. State, 132 Tenn. 47, 72, 177 S.W . 47, 53-54 (1915). In other words,
the testimony and the prior statements would all have occurred with the motive to
fabricate. Thus, the prior statements were not relevant to rebutting the claimed motive
to lie. See State v. Kendricks, 891 S.W.2d 597, 603 (Tenn. 1994).
Similarly, the fact that the defendant tried to show that the victim frequently lied
and tried to show that the assault did not occur because of its claimed proximity to her
sleeping mother and because of the negative medical evidence does not allow for the
use of the prior statements. In similar fashion to the motive to fabricate, the claim that
the victim is a frequent liar is not rebutted by evidence that she has made a prior
statement consistent with her trial testimony -- evidence of chronic lying would affect the
prior statement, as well. As far as the defendant’s claim that the physical evidence did
not support her testimony about an assault, the evidence of prior consistent statements
would, again, have no relevance to rebutting such a claim.
11 General attacks upon a witness’ credibility do not, by themselves, open the door for
admission of prior consistent statements.
The pivotal points, though, relate to the evidence -- presented by the
state -- that the victim did not tell her brother and mother of the assault on the night it
occurred and that the victim told Officer Byrd in her first statement to him that nothing
had happened. Initially, I do not believe that the state should be allowed to justify
presenting the victim’s claimed prior consistent statements as corroboration of her
testimony when the state, itself, presents the evidence that would give rise to a question
of the victim’s credibility. On the other hand, and as in this case, when defense counsel
relies upon the evidence that attacks credibility, through cross-examination or
otherwise, then the state may seek to corroborate the victim’s testimony with relevant
prior consistent statements.
As for the fact that the victim did not tell her brother and mother on the night of
the assault, it brings into play the basic reasoning behind the fresh-complaint doctrine.
That is, to the extent that the victim would be expected to complain immediately to
others about the assault, her lack of complaint could support an inference that the
assault did not happen. To rebut this negative inference, it would be relevant for the
state to show that the defendant had threatened her if she told anyone and that the
next day -- away from the defendant -- she told people at school that the defendant had
raped her. However, disclosure of the details of the assault would not be necessary to
rebut the negative inference.
As for the victim’s first statement to Officer Byrd that nothing happened, it is a
prior inconsistent statement relative to her trial testimony and the defendant relied upon
that fact in cross-examining her. Therefore, the victim’s statements at school are prior
consistent statements relevant as corroboration to the victim’s testimony, reflecting
12 what she said when the defendant was absent. Similarly, the victim’s complaint of rape
to Officer Byrd in her second statement when she was, again, away from the defendant
is relevant for corroborating her testimony and for placing doubts on her prior claim that
nothing happened. As before, though, I doubt that disclosure of the details of the
assault would be necessary to rebut the negative inferences.
However, the few details of the offense that were disclosed by the witnesses to
the victim’s prior statements were elicited by the defendant’s cross-examination. Thus,
although the state inappropriately presented the victim’s prior complaints in its direct
examination of her, I do not believe that such evidence more probably than not affected
the verdict to the defendant’s detriment. See T.R.A.P. 36(b). Once the defendant
cross-examined the victim as he did, the corroborating testimony elicited by the state
from the other witnesses was appropriate. Therefore, I concur in affirming the judgment
of conviction.
___________________________ Joseph M. Tipton, Judge