State v. Wallace

664 S.W.2d 301, 1983 Tenn. Crim. App. LEXIS 371
CourtCourt of Criminal Appeals of Tennessee
DecidedAugust 31, 1983
StatusPublished
Cited by14 cases

This text of 664 S.W.2d 301 (State v. Wallace) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wallace, 664 S.W.2d 301, 1983 Tenn. Crim. App. LEXIS 371 (Tenn. Ct. App. 1983).

Opinions

OPINION

DWYER, Judge.

Appellant was convicted of a crime against nature, to-wit: sodomy per anus, T.C.A. § 39-2-612, and attempt to commit a felony, T.C.A. § 39-1-501. Punishment was set at imprisonment for not less than five nor more than seven years on the former conviction and not less than one nor more than two years on the latter conviction. The conviction of sodomy per anus was considered to trigger the habitual criminal act, T.C.A. § 40-2801, et seq. (now T.C.A. § 39-1-801, et seq.), enhancing appellant’s sentence to imprisonment for life.

There are twenty issues raised on this appeal. The State relies on Rule 10(b) of the rules of this Court and T.R.A.P. 27(a)(7) to argue that issues 3(a), 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 are waived due to appellant’s failure to adequately brief them. We have examined appellant’s treatment of these issues in his brief and are in accord with the State. Moorman v. State, 577 S.W.2d 473 (Tenn.Cr.App.1978). Moreover, many of these issues direct the court to an “appendix” which accompanied his brief when it was filed. There was no resort to T.R.A.P. 24(e) and no approval of these documents by the trial court. Appellant has the burden of having prepared a transcript which conveys a fair, accurate, and complete account of what transpired with respect to those issues which are the basis of an appeal. T.R.A.P. 24(b). We will not consider those issues for which the record is inadequate. It is not the duty of this Court to sort out and labor through issues not properly presented.

Because issues 1, 2, and 5 attack the sufficiency of the evidence, we will narrate the evidence as found from our review of the record.

[303]*303The appellant was charged in two presentments with committing the offense of crime against nature. In the second count of each presentment, he was accused of being a habitual criminal. The offenses involved the same victim, an eighteen-year-old youth, and grew out of an incident in which appellant forced the victim to submit to oral and anal intercourse while the two were imprisoned in a jail cell in Waverly on September 8, 1979. When the young man was placed in the cell, the appellant told him that if he was still there by nightfall, he would be his “bitch”. In a short while, the youth related appellant grabbed him by the hair, started slapping and choking him, and forced him into the shower which adjoined the cell. In there he penetrated the youth’s rectum with his penis and then made him commit fellatio. Another prisoner in the same cell where the assault was occurring passed a note to a prisoner in an adjoining cellblock disclosing, “Brad’s getting f_now.” This prisoner then began kicking on the steel separating wall, prompting the arrival of the sheriff. When the sheriff entered the cell, he found the victim trembling and brushing his teeth.

The appellant offered no proof.

The evidence is viewed on appeal in the strongest legitimate light to the theory of the State. State v. Cabbage, 571 S.W.2d 832 (Tenn.1978). It is appellant’s contention that the victim was an accomplice and that his uncorroborated testimony will not support a conviction. However, the evidence clearly reflects that appellant performed these despicable acts on the victim by the use of force and without consent. With evidence that appellant slapped his victim, pulled his hair, choked him, and threatened to make him his “bitch,” it cannot be seriously contended that the victim was an accomplice; that theory is accordingly rejected. See Bethany v. State, 565 S.W.2d 900, 903 (Tenn.Cr.App.1978). Under the facts as narrated, any rational trier of fact would find appellant guilty beyond a reasonable doubt. T.R.A.P. 13(e). The issues attacking the sufficiency of the evidence are overruled.

In his issue 19, appellant complains that the court erred in its charge to the jury on the definition of the offense of sodomy. The trial court’s charge in this area is quoted below:

“As heretofore stated, the defendant is charged in the presentments in each of these cases with the offense of crime against nature.
“Any person who commits a crime against nature, either with mankind or beast, is guilty of a felony.”
“Crimes against nature, more commonly known as sodomy, consist of carnal copulation between persons of different sex but in an unnatural manner.
“Sodomy, in the narrow meaning of the term, is the carnal copulation between two human beings, per anus, or carnal copulation by a human being in any manner with a beast. In its broader meaning, sodomy is the carnal copulation by human beings with each other against nature or with a beast, in which meaning it includes all acts of unnatural copulation.
“Fellatio, that is, an act of sexual perversion committed with the male sex organ and the mouth of another, constitutes the offense of a crime against nature. In addition, carnal copulation between two human beings per anus constitutes a crime against nature.
“For you to find the defendant guilty of this offense, the State must have proven beyond a reasonable doubt that the defendant committed the alleged crime against nature.” ...

This charge was taken from T.P.I. § 9.04. There is no error here. The issue is overruled.

In the next group of issues, appellant assaults the jury’s finding that he is a habitual criminal. At the habitual criminality portion of the trial, the State proved a conviction of appellant in Arkansas for possession of stolen property and two convictions in Alabama for forgery. The forgery convictions were, by agreement, treated as one offense. The State also proved a con[304]*304viction in Giles County, Tennessee for attempting to pass a forged instrument.

Appellant’s first contention in this area is that the trial court erred by holding that the Arkansas conviction for possession of stolen property was a countable offense under T.C.A. § 40-2901. In order for the statute to apply, the accused must have been convicted of three felonies, at least two of which were among those specified in the statute. Both sides agree that the Alabama convictions constitute one countable offense and that the Giles County conviction may not be counted. However, appellant contends that the Arkansas conviction would be equivalent to petit larceny if committed in Tennessee and is thus not countable. The terms of that information are that:

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State v. Wallace
664 S.W.2d 301 (Court of Criminal Appeals of Tennessee, 1983)

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Bluebook (online)
664 S.W.2d 301, 1983 Tenn. Crim. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wallace-tenncrimapp-1983.