IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
SEPTEMBE R SESSION, 1997
FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CC-00359 ) November 20, 1997 Appellee, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk ) HENRY COUNTY
VS. )
) HON. JULIAN P. GUINN
TERRELL DION COWANS, ) JUDGE )
Appe llant. ) (Rape of a Child & Aggravated ) Sexual Ba ttery)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF HENRY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter P.O. Box 663 117 Fo rrest Ave nue N orth EUGENE J. HONEA Camden, TN 38320 Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243
ROBERT “GUS” RADFORD
District Attorney General P.O. Box 686
Huntingdon, TN 38344
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defendant, Terrell Dion Cowans, was convicted of one count of rape of a child and one count of aggravated sexual battery. He was sentenced as a Range I, standard offende r to fifteen (15) years for the rape of a child conviction and eight (8) years for the aggravated sexual battery conviction, to be served concurren tly. The De fendant app eals his convictions , raising four issues: (1) That the trial court erred by failing to grant the Defenda nt’s motion for a new trial based on the newly discovered evidence that one of the victims recanted her testimony; (2) that the tria l court erred by not pe rmitting de fense co unsel to question one of the victims about an alleged pregnancy by another man; (3) that the trial court erre d by failing to s uppres s statements made by the De fendan t; and (4) that the evidence was insufficient to suppo rt a verdict of g uilt for both conviction s. W e affirm the judgm ent of the tria l court.
On June 27, 1994, A.W. and S.E.1 , who we re cou sins, w ere at A .W .’s house in Paris, Tennessee. That morning, the two girls decide d to walk to A.W .’s uncle ’s house nearby to get som e mon ey for food . Before they left, either the Defendant called A.W . or A.W . called the Defen dant on the teleph one. She had met him at Ralph’s Golf. At that time, A.W. was twelve (12) years old, S.E. was eleven (11) years old, and the Defendant was eighteen (18) years old. The Defendant told A.W . that he wanted her to go to another girl’s house and knock on her door for him. A.W. did not know who the other girl was.
1 It is a po licy of th is Co urt to r efer to ch ild sex abus e victim s by th eir initia ls only.
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A.W . took S.E. with her to Bryan Atkinson’s house because the Defendant was going to be there to tell her where the other girl lived. S.E. was unaware of the content of the conversation between A.W. and the Defendant and A .W . told her they were taking a shortcut to her uncle’s house. A.W. a nd S.E . went to Atkinson’s house where the Defendant was waiting. A.W. pulled S.E. into the house. They all talked togeth er in Atkinson ’s bedroo m. The D efenda nt went into the bathro om a nd told A.W . to go w ith him because he needed to talk to her. The bathroom door wa s shut an d the light w as on. T he De fendan t told her that he liked S.E. and that he wanted to talk to S.E. The Defendant was we aring pa nts and A.W . was we aring sho rts and a shirt. S.E. thought she heard a scream while A.W. was in the bathroom with the Defendant, but she was not sure.
A.W. left the bathroom and told S .E. that the D efenda nt wante d to talk to her. The Defendant told S.E. to “come here” and she complied. The Defendant pulled S.E. into th e bathro om. A.W . sat in Atkinson’s bedroom. The Defendant appeared to be wearing a pair of jogging pants and S.E. was wearing blue jean shorts and a shirt. The Defendant pushed S.E. down on the floor. He held her arms down above her head. The Defendant pulled her clothes off or down. S.E. could not rec all whe ther the Defe ndan t’s clothes w ere off because the room was dim. The Defendant fondled S.E.’s breasts over her shirt. She could not reme mbe r wheth er the D efend ant exp osed or touc hed h er with h is penis. S.E. told him to “let me up” and the Defendant allowed her to get up and put on her clothes. The Defendant said something about “still friends” and S.E. walked away. S he left the b athroom and we nt outside on the po rch.
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A.W . then we nt into the bathr oom to talk with the Defendant. He told her he wanted to have sex. The door was shut. A.W . replied that she had a boyfriend and did not want to have sex with the Defendant. The Defendant persisted and got closer to A.W. He pushed her either against the sink or the toilet and op ened h er shorts . A.W . said no but the Defendant was holding her hands. He pulled down the shorts and they fell down farther. The Defendant exposed his penis and then penetrated A.W.’s vagina with part of his p enis. A.W . kept saying no an d the D efend ant with drew a nd eja culated. The Defendant apologized and said he “got carried away.” A.W. was crying and left the bathroom. She left and caught up with S.E. who was already walking down the alley behind the house.
A.W . asked S.E. if something happened to her and S.E. said nothing had happened. Later that d ay, S.E. told her stepmother what the Defendant had done. Her stepmother and father took her to the hospital emergency room later that evening. A.W. also went to the hospital. Carolyn Gore of the Department of Human Services’ child abuse investigation division interviewe d both victim s. Dr. Debra Sue S elby con ducted pelvic exam inations on both victim s and ra pe kits were collected. Dr. Selby examined S.E. and found redness at the entrance of the vagina as well as superficial lacerations at three areas as well as on the right labia minora. The hymen was red but intact. Dr. Selby examined A.W. and found a discharge from the vagina and found that the hymen had a small amount of tissue left, with ragge d edg es an d a very large o penin g rathe r than a sma ll opening which is expec ted. There w as purulent disc harge at the ce rvix. Dr. Selby noted that damage to the hymen could be due to causes other than vaginal
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penetration, such as blunt trauma. Dr. Selby did not have the test res ults at tria l, but recalled that the presence of sperm was not detected in either victim.
Lieutenant Eddie Snow , an inve stigator for the P aris Police Depa rtment, was assigned to the case. He interviewed Bryan Atkinson and then decided to contact the Defendant. Lieutenant Snow telephoned the Defendant and requested that he come to the police department. The Defendant came and spoke with Sno w, which conversation was initially not recorded. Lieutenant Snow then gave the Defen dant Miranda warnings be fore he agre ed to mak e an a udio taped statement. In that statement, the Defendant admitted that he was at Bryan Atkins on’s house wh en the victims we re there. He asked A.W . to have se x with him and she ag reed. They went into the bathroom and A.W. was positioned on the toilet. He state d that A.W . pulled he r shorts do wn and he proc eeded to penetra te her vaginally, but only partially. He stated that he then asked A.W. how old she was and s he said she was thirteen (13). He withdrew, but denied that he ejaculate d.
The Defen dant de nied ha ving any s exual co ntact with S .E. He stated that he was in a back room alone with her for a brief time and he asked whether she had a boyfriend and how old she was. He stated that S.E. said she was thirteen. He denied touching S.E. or ex posing his penis or pene trating her w ith his pe nis or his fingers.
The Defendant was indicted on July 5, 1995 , for one co unt of rap e of a child and one count of aggravated sexual battery. Defense counsel mo ved to suppress the Defenda nt’s statemen t, which was de nied by the trial court after a
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hearing on the mo tion held o n Augu st 15, 199 5. He wa s tried by a H enry Co unty jury on November 8, 1995, and found guilty on both counts. The Defendant was sentenced to fifteen (15) years for the rape of a child conviction and eight (8) years for th e aggra vated se xual batte ry conviction .
I.
In his first issue in this appea l, the Defenda nt argues that the trial court erred by failing to grant a new trial based on newly discovered evidence. In his motion for new trial the D efend ant alle ged th at there was n ewly dis covered evidence in the form of A.W .’s recantation of her tes timony at trial. It was submitted as an affidavit for consideration at the hearing on the motion. The contents of the affidavit in pertinent part is as follows:
Terre ll Dion Cowans and I, [A.W.], are friends. He was talking to me about anothe r girl on that d ay. He did not rape me, he did not even touch me. When night came the police came and got me and took me to the hospital, I was shocked. Terrell and I did not have intercourse.
He did not rape me. Carolyn Gore told us that the test showed I had had intercourse. I tried to tell Ms. Gore, the social worker, that it did not happen and she w ould not listen. Ran dy Shank le heard my conversation with Ms. Gore. We were at my house when this conversation to ok place. Sh e said it was too late, the trial is over.
...
I swear that I am telling the truth and I want to do the right thing. I have told my grand mother, m y uncle, and m y friends that he did not do anything to me. Mrs. Gore kept on pressuring me at the Emergency Room. She told me wh at to say. I even told Mrs. Gore after the trial that I didn’t think it was fair and she said it was too late.
....
The Defen dant as serts that this newly d iscove red ev idenc e entitle s him to a new trial. The decision to grant or deny a new trial on the ba sis of ne wly
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discovered evidence is a matter which rests in the sound discretion of the trial court. State v. Goswick, 656 S.W.2d 355, 358 (Tenn. 1983). To acquire a new trial as of right based on newly discovered evidence, a defendant must demo nstrate (1) rea sona ble diligen ce in seeking the newly discovered evidence; (2) materia lity of the evide nce; and (3) that the evidence will likely change the result of the trial. State v. Nich ols, 877 S.W.2d 722, 737 (Tenn . 1994); Goswick, 656 S.W.2d at 358-360. A new trial will not be granted on the basis of newly discovered eviden ce wh en the effect is merely to impeach a witness’ testimony at trial unle ss the impe achin g evide nce is s o cruc ial to the defendant’s guilt or innocence that its admission would chang e the ou tcome of the cas e. State v. Singleton, 853 S.W .2d 490 , 496 (T enn. 19 93); State v. Roge rs, 703 S.W.2d 166, 169 (Ten n. Crim. App . 1985).
At the hearing on the motion for a new trial, no oral testimo ny was presented, and the trial court resolved the issue based u pon the affidavit. Therefore, the rule vesting controlling discretion in the trial judge does n ot govern on appeal, and whether the requirements have been fulfilled becomes a question of law. Goswick, 656 S.W .2d at 359 ; State v. Holt, 801 S.W.2d 518, 521 (Tenn. Crim. App. 1990). In refusing to grant a new trial, the trial judge stated on the record th at:
[Y]ou’ve got the obvio us prob lem tha t arises from time to time of the socalled recanting victim. And it was a subject that co uld ha ve eas ily been explored had it bee n done at the time of trial. As a matter of fact, the law says that it should have been done at that time. And having once taken the sworn testimony that law is very loathe to now take som ebod y’s recantation by swearing that they swore to a lie, p articula rly when it could have been taken care of appropriately as is required by law at th e time of the tria l.
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W e agree th at the De fendan t had an opportu nity at trial to cross-examine the victim to de termine the verac ity of her testim ony. Even if we were to assume that the Defend ant could not h ave obtained the new inform ation w ith reas onab le diligence, we do not be lieve a new trial was warranted. Obviously, the accusations made by the victim were highly material to the case. Yet, no recantation of the victim’s testimony can alter the fact that the De fenda nt him self admitted to pene trating the vic tim. Circumstantial evidence obtained from the medical examination also corroborated the allegation that a penetration occurred. Finally, all of the persons present when the act occurred testified or made statem ents that the Defendant and A.W. were in the bathroom toge ther. Therefore, we do not be lieve tha t eviden ce tha t the victim recanted would likely chang e the res ult of the trial. Th is issue is w ithout me rit.
II.
As his second issue, the Defendant argues that the trial court erred by not permitting defense counsel to question the victim, A.W., about her alleged pregnancy by another man. The record reflects that defense counsel raised the issue after the close of the proof. Defense counsel informed the trial judge that Bryan Atkinson told her that A.W. was pregnant. Bryan Atkinson testified in a jury-out hearing that “I migh t have heard some talk at school” approximately “two or three mon ths ago.” The offense in question occurred on June 27, 1994, and the trial was co nducte d on N ovem ber 8, 19 95. The trial court concluded that the information was m erely a rumor as the witness admitted. He found that the evidence did not comport with the requirements of Rule 412 of the Tennessee
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Rules of Evidence. Finally, the trial judge stated that the allegation was irrelevant and immaterial to the prosecution being conducted.
The Defendant argues that under Rule 412 of the Tennessee Rules of Evidence, he should have been allowed to question the victim at trial regarding spec ific instances of conduct under an exception for newly discovered evidence. Tenn. R. Evid. 412(d)(1)(I). Th e State coun ters that Rule 412 do es not ap ply to the offense of rape of a child. The language of Rule 412 states that it applies when “a person is accused of an offense under T.C.A. §§ 39-13-502 [aggravated rape], 39-13-503 [rape], 39-13-504 [aggravated sexual battery], 39-13-505 [sexual ba ttery], 39-13-507 [spousal sexual offens es], or th e attem pt to co mm it any such offense.” Tenn. R. Evid 412. Rape of a child, Tennessee Code Annotated section 39-13-522, is not one of the offen ses en umera ted. See also State v. Jason Adam Brinkley, Jr., A.K.A. “Bubba”, C.C.A. No. 01C01-9307-CC- 00231, Sum ner C ounty (Ten n. Crim . App., Nash ville, July 14, 1995)(Rule 412 held inapp licable to statutory rape). Ho wever, we find that there is a distinction between Brinkley and the cas e at bar.
W e first note that the offense of rape of a child was enacted by the General Assembly in 1992 and codified as Tennessee Code Annotated section 39-13- 522. See Tenn. Pub. Acts 1992, ch. 878 § 1. Prior to that, the offense now embodied in section 39-13-522 was contained within the offense of aggravated rape before it wa s recod ified. See Tenn. Code Ann. § 39-13-502(a)(4) (Supp. 1991). Rule 412 of the Tennessee Rules of Evidence was established in 1991 to replace the rape shield statute contained Tennessee Code Annotated section 40-17-119. See Tenn. R. Evid. 412, Advisory Commission Comment. The
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comment contains no refere nce to rape of a child. Although we cannot determine why rape of a child has been om itted, we believe that R ule 412 sho uld govern evidentiary rulings for the offense, rather than the general applic ation o f Rule 404(a)(2). This interpretation avoids the illogical result that would otherwise occur in this case. Here, the evidence regarding S.E., the vic tim of the aggravated sexual battery would be governed by Rule 412 because that offense is one of the enumerated offenses under the rule. However, evidence regarding A.W ., the victim of the rape of a child, would be adm itted on ly by wa y of Ru le 404(a)(2).
Therefore, we shall consider the Defendant’s argument that the evidence shou ld have b een a dmitte d und er Ru le 412 . The D efend ant arg ues th at Ru le 412 sets out the procedure for questioning a victim about specific instances of condu ct. See Tenn. R. Evid 412(c)(4)(I). The Defendant contends that evidence of the victim’s pregnancy would rebut medical evidence introduced at trial. He explains that his failure to file a motion ten days before the trial can be explained because the evidence was newly discovered and could not have been obtained through the exerc ise of due diligence . See Tenn. R . Evid. 412(d)(1)(I).
W e cannot agree. The D efend ant did not m ake th e mo tion in a timely manne r. The Defendant argues that trial counsel heard this information the day before trial and could not conduct an investigation. However, we see no reason why the Defendant was prevented from interviewing the State’s witnesses prior to trial to obtain additional information about the victim. There are valid policy reasons for the rule, especially in this kind of case. See State v. Gus sie W illis Vann, C.C.A. No. 03C01-9408-CR-0 0279, B radley C ounty (T enn. C rim. App .,
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Knoxville, Sept. 18 , 1995); State v. Stephen Ray Stamps, C.C.A. No. 02C01-9301-CC-00002, Henry County (Tenn. Crim. App., Jackson, March 2, 1994), perm. to appeal denied, (Tenn . 1994). A s the Sta te points o ut, the proffered testimony of Bryan Atkinson did not necessarily indicate that the pregnancy was due to sexual activity prior to this o ffense . Ther e is no indication it would rebut the medical testimony. It is clear that if the victim was pregnant at the time of trial, it could not be considered as evidence of the victim’s sexual activity prior to the offense. The trial was conducted more than fifteen months after the offense. Finally, the trial court made a finding that the information was an unsubstantiated rumor and was irrelevant to the case being tried. It is settled that the admissibility of evidence and the scop e of cro ss-exa mina tion res ts within the sound discretion of the trial court which will be reversed only for an abuse of such discretion . State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). We cannot conclude that the trial judg e abu sed h is discre tion, the refore , this issu e is without m erit.
III.
Next, the Defend ant contend s that the trial court erred b y failing to suppress his statement as violating his Fifth Amendment rights because it was not freely and voluntarily given. The Fifth Amendment to the Constitution as applied to the States through the Fourteenth Amendment insures that the accused may not be compelled to be a witness against himself. The Tennessee Constitution also prov ides that a defendant cannot be compelled to give evidence against himself. Tenn. Const. art. I, § 9. The accused may waive these rights, but the waiver must be made “voluntarily, knowingly, and intelligently” and “the
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accused must be adequately and effectively apprised of his rights and the exercise of those rig hts mu st be fully honored.” Miranda v. Arizona, 384 U.S. 436, 44 4, 467, 86 S.Ct. 16 02, 161 2, 1624 , 16 L.Ed .2d 694 ,706, 71 9 (1966 ).
The voluntariness test under the Tennessee Constitution is more prote ctive of individual rights than the test under th e Fifth Am endm ent. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); see State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992); State v. S mith, 834 S.W .2d 915 (Te nn. 1992). A waiver is valid if the suspec t is aware of the nature of the right being abandoned and the consequences of the dec ision to ab andon the right. Id. at 547. In assessing whether a waiver of the right was voluntary, we must look at the totality of the circums tances surroun ding the re linquishm ent of the rig ht. State v. Benton, 759 S.W .2d 427 , 431-32 (Tenn . Crim. A pp. 198 8).
A hearing on the motion to suppress was held on August 15, 1995. The Defendant testified that he was asked to come to the police department. He was placed in a sm all interview room. Lieute nant Snow and anoth er officer were presen t. Snow was we aring a u niform a nd his se rvice revolve r. He testified that the officers told him it wo uld be ea sier if he talke d with them. He stated that he was nervous. He also testified that he was not informed that he could have a lawyer but that he u nderstood h e could rem ain silent and leave freely.
On cross-examination, the Defendant was presented with the waiver of rights form bearing his signature. He admitted that he read the form, understood that it waived his righ t to an a ttorney and to rema in silent, and signed it. The interview was audio taped, including Lieutenant Snow informing the Defendant
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about his rights. The Defendant testified that he could not remember his waiving his rights, but did acknowledge the followin g portio n of the statem ents re ad to h im by the assistant district attorney : “‘An d you signed the waiver. And then I asked you after reading the statement that you understood your rights, were you willing to talk to me , and you said that yo u were. And since then we’ve had a conve rsation ?’ And you sa id, ‘Yes , sir.’”
Lieutenant Snow testified that h e read the waiver of rights form to the Defendant before he interviewed him. He testified that he explained the form and the Defendant signed it. He denied that he forced or coerced or promised leniency to obtain the Defen dant’s sta temen t.
The trial court overruled the Defendant’s motion to suppress. The trial judge assumed that the Defendant had been seized, yet still determined that the Miranda require men ts had been met. In this appeal, the State questions whether Miranda warning s were re quired if the Defen dant offer ed to com e to the police department to be intervie wed. See State v. Anderson, 937 S.W.2d 851, 853 (Tenn. 1996). Nevertheless, the officers proceed ed as if the interview we re custodial and rea d and e xplained to the Defendant his constitutional rights as required by Miranda. The Defendant argues that his young age of eighteen and other circumstances should be weighed against the appearance that he volunta rily gave the statem ent. Howeve r, we cannot co nclude that the re cord supports a findin g that the Defendant was coerced or promised anything that would rende r his sta teme nts invo luntary . Furthe rmor e, the D efend ant him self admitted that he understood that he was relinq uishing h is right to rem ain silent.
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When considering the totality of the circumstances, we can only conclude that the trial court did not err in denying the Defendant’s motion to suppress.
IV.
Finally, the Defendant conten ds that the evidenc e was ins ufficient to support a verdict of guilt. When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favora ble to th e pros ecutio n, any r ationa l trier of fac t could have found the essential elements of the crime beyond a reaso nable d oubt. Jackson v. Virgin ia, 443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S .W .2d 62 0, 623 (Ten n. Crim . App. 1 987). N or ma y this court reweigh or reevaluate the eviden ce. State v. Cabbage, 571 S.W.2d 832, 835 (T enn. 19 78).
In order to suppo rt a convictio n for rape of a child, the State was required to prove tha t there wa s an “un lawful sexu al pene tration of a victim by the defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a). The testimony at trial showed that the victim, A.W., was twelve years old at the time of the offense. She testified that the Defendant penetrated her vagina with his penis. The Defe ndan t’s statemen t corroborated h er testimony. The Defendant argues that A.W .’s statements prior to and after the trial were inconsistent with her trial testimony. However, the assessment of credibility of witnesses lies within the
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province of the ju ry. App arently , the jury resolve d this co nflict in favor of the State.
The Defendant also challenges the conviction for aggravated sexual battery. The S tate is requ ired to prov e the elem ents of the crime tha t there is “unlawful sexual contact with a victim by the defendant or the defendant by a victim” and tha t “[t]he victim is les s than thirte en (13) ye ars of ag e.” Tenn. Code Ann. § 39-13-504(a)(4). "’Sexual contact’ includes the intentional touching of the victim's, the defendant's, or any other perso n's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.” Tenn . Cod e Ann . § 39-1 3-501 (6). "’Intim ate parts ’ includes the primary genital are a, groin, inn er thigh, b uttock or breas t of a hum an bein g.” Tenn. C ode Ann . § 39-13-501 (2).
The testimony at trial revealed that S.E. was eleven years old at the time the offense occurred. She testified that the Defendant forced her onto the floor of the bathroom and fondled her breas ts on to p of he r clothe s. This is clear ly sufficient proof to establish the elem ents of ag gravated sexual ba ttery. Again, the Defendant challenges details of the trial testimony, suggesting that there were incon sistencies regarding whether S.E. screamed while she was in the bathroom. He also points to S.E,’s frequent answers of “I don’t know” to questions about the details of the incident, thus making her testimony suspect. Again, we must conclude that judgments regarding credibility of witnesse s are to be made by the jury. We will not disturb these co nclusion s on ap peal. Th is issue is w ithout me rit.
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Accord ingly, we affirm the judgm ent of the tria l court.
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DAVID H. WELLES, JUDGE
CONCUR:
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JOE B. JONES, PRESIDING JUDGE
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JOE G. RILEY, JUDGE