State v. Winford Pipkin

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JUNE SESSION, 1997 December 4, 1997

Cecil W. Crowson

Appellate Court Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605-CR-00210 )

Appellee, )

) DAVIDSON COUNTY

)

V. )

) HON. THOMAS H. SHRIVER, JUDGE WINFORD LEE PIPKIN, )

)

Appe llant. ) (RAPE OF A CHILD AND ) AGGRAVATED KIDNAPPING)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID COLLINS JOHN KNOX WALKUP 211 Printers Alley Bldg. Attorney General & Reporter Fourth Floor Nashville, TN 37201 KAREN M. YACUZZO 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

WILLIAM REED

Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue S outh Nashville, TN 37201

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Defendant, Winford Lee Pipkin, was convicted of one (1) count

of especially aggravated kidnapping and five (5) coun ts of rap e of a c hild following a jury trial in the Criminal Court of Davidson County. He appeals as of right and presen ts the follow ing issue s:

1) The five (5) convictions for rape of a child should be reversed and dismissed because the indictment in each count failed to allege the mens rea.

2) The trial court erred by failing to include in its charge to the jury the m inimum numb er of years a perso n sente nced to imprisonment for the offense charged m ust serve before reaching the earliest release eligibility date.

3) The trial court erred by allowing the testimony of Sue Ross.

4) The trial court erred by imposing consecutive sentences.

Finding no reversible error, we affirm the judgments of the trial cour t.

The sentences imposed upon Defendant by the trial court are as follows:

Count 1 Especially Aggravated Kidnapping 35 years Count 2 Rape of a Child 25 years Coun t 3 Rape of a Child 40 years Coun t 4 Rap e of a C hild 40 years Coun t 5 Rap e of a C hild 40 years Coun t 6 Rap e of a C hild 30 years

The trial court ordered counts 2, 3, 4, and 5 to be served conc urren tly with each other. However, count 1 was ordered to be served

3

cons ecutive ly to count 6, and count 6 was o rdered to be serve d cons ecutively to the concurrent sentences in counts 2, 3, 4, and 5. Th e total effective sentence is one hu ndred five (105) yea rs.

The sufficiency of the evidence to support the convictions is not challenged on appeal, and therefore only a brief review of the facts is necessa ry. In September 1994 , the victim, tw elve-year- old D.S ., (this court w ill refer to the juvenile victim by his initials) was walking home from a neighborhood store when the Defendant drove up in his vehicle. The Defendant asked D.S. if he wanted to earn some money helping the Defendant move furniture. D.S.’s brother was walking some distance in front of the victim. D .S. calle d to his brothe r to see if he wanted to help also. The Defendant told D.S. that he only needed one helper. D.S. obse rved a cloth o ver De fenda nt’s hand, and when the Defendant told D.S. to get into th e vehicle, D .S. was a fraid not to c omply.

After driving around for a considerable period of time in Davidson County, the Defendant took D.S. to Defendant’s apartment where the acts of rape of a child o ccurre d. W hile at the apartment, Defendant forced D.S. to take a shower, and the Defendant rinsed out or otherwise washed the victim’s clothes. Early the next morn ing, Defenda nt drove D.S. around in Davidson County again, ultima tely letting h im ou t of the ve hicle at a location near th e hom e of the victim’s grandm other. Mem bers o f the victim ’s family, as well as police officers and others, searched for the victim all night. The victim wa s taken to a ho spital where he was examined, including giving a history to Sue Ross, a pediatric nurse practitione r.

4

During the investigation, the victim identified Defendant from a photo graph ic lineup and also identifie d Defendant’s vehicle by specific color, size, scratches and d ents. T he victim testified in deta il as to the e vents of the crimes, and identified the Defendant at trial. D.S. also testified that Defendant brandished a knife during the sexual assaults.

SUFFICIENCY OF THE COUNTS OF THE INDICTMENT CHARGING RAPE OF A CHILD

The substance of each count of the indictment which charges rape of a child alleges as follows:

That Winford Lee Pipkin on a day in September 1994, in Davidson County, Tennessee, and before the finding of th is indictm ent, did engage in unlawful sexual penetration of [D.S.] (D.O.B. 01-06-82), a child less than thirteen (13 ) years of age, in violation of Tennessee Code Annotated § 39-13-522, and against the peace and dignity of the State of Tennessee.

Defendant argues that since the counts of the indictment charging rape of a child do not allege either intentional, knowing, or reckless conduct, then the essential element of the mens rea is missing, and the counts of the indictment are void. Defendant relies upon a decision of this court in State v. Hill, No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville, June 20, 1996). The Tennessee Supreme Court recently reversed this court’s decision in State v. Hill. See State v. Hill, _____ S.W.2d _____, No. 01-S-01-9701-CC- 00005, Wa yne C ounty (Ten n., Jac kson , Nov. 3 , 1997 ). The indictme nt in Hill charged in all counts the following:

[The defendant] did unlawfully sexually penetra te [the victim ] a person less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-502, all of which is against the peace and dignity of the State of Tennessee.

5

W hile the Defendant in Hill was charged with aggravated rape, and the Defendant in the case sub judice was convicted of rape of a child, the substance of the two offense s are identical, i.e. both involve unlawful sexual penetration of a child less than thirteen (13) years of age.

Defendant argue s that th e indic tment charging him with various counts of rape of a child violate his rights gu arantee d by the S ixth and F ourteen th Amendments to the United States Constitution and Article I, Section 9 of the Tennessee Constitu tion which require a n accu sed to be informed of the nature and cause of the accusation.

The supreme court in Hill held that the required mental state may be inferred from the nature of the criminal conduct alleged in the indictment under review in that case. As the statutory elements of the offense denoted as rape of a child are identical to the previous offense denoted as aggrava ted rape of a child less than thirteen (13) years of age and th e lang uage of the in dictm ent in Defe ndan t’s case is essentially identical to the indictment involved in Hill, our supreme court’s decision in Hill is contro lling. The required mental state of intentiona l, knowin gly, or reckle ssly ma y be inferre d from th e nature of the criminal c onduc t alleged in this indictm ent. This issue is with out me rit.

J URY CHARGE RELATIVE TO POSSIBLE PUNISHMENT

Defendant comp lains that the trial court did not comply with the provisions of Ten ness ee Co de An notate d sec tion 40 -35-2 01(b) (2)(A) (i). This

6

subsection of the Criminal S entencing R eform Ac t of 1989 requ ires the trial court to include in its charge “an approximate calculation of the minimum number of years a person sentenced to imprisonment for the offense charged and lesser included offenses must serve before reaching such person’s earliest release eligibility date” among other information. This subsection is applicable whenever a party makes a motion for the court to charge the possible pena lties for the offense charge d and a ll lesser includ ed offen ses. Th e State concedes in its brief that the trial court failed to comply with this particular portion of Tennessee Code Anno tated sec tion 40-3 5-201.

In the judgment for each conviction of rape of a child, Defendant was prope rly sentenced as a “c hild rapist” as defined in Tennessee Code Annotated section 39-13-523. That statute specifically provid es tha t a “child rapist” is required to serve the entire sen tence im posed by the trial co urt, undiminished by any sentence reduction credits that the Defendant may be eligible for or earn.

In this appeal, Defendant argues that it was reversible error for the trial court to fail to provide this particular information in the jury charge pursuant to the provisions of Tennessee Code Annotated section 4 0-35-20 1(b)(2)(A )(i).

Our supre me c ourt ha s previo usly held that an alleged error involving the jury charge concerning the range o f punishme nt is not a constitutional erro r. State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991). Therefore, any alleged error concerning jury charge as to the eligibility of parole is governed by Rule 52(a) of the Ten ness ee Ru les of C rimina l Proce dure a nd Ru le 36(b) of the Tennessee Rules of Appellate Procedure. Rule 52(a) of the Tennessee Rules of Criminal

7

Procedu re provides that “[n]o judgment of conviction shall be reversed on appeal except for errors which affirmatively appear to have affected the result of the trial on the merits.” Rule 36(b) of the Tennessee Rules of Appellate Procedure provides that “[a] final judgment from which relief is available and otherwise approp riate shall not b e set asid e unless , conside ring the w hole reco rd, error involving a substa ntial right m ore prob ably than not affected the judgment or would re sult in prejud ice to the jud icial proce ss.”

In State v. Cook, our supreme court, in discussing the rationale for the enactm ent of a statutory right to have a jury know th e range of punish ment, even though the trial court and not the jury sets punishment, stated as follows:

It is widely perceived by those who observed the operations of our trial courts in previous times, when juries had the additional respon sibility of setting punishment, that often they seemed to find guilt of a crime not necessarily most strongly suggested by the evidence, but one the punishment for which suited their sense of justice for the c ase. A ppare ntly the Legislature desired to give those charged with crimes the option of making certain that the jury knew the punitive consequences of guilty verdicts in the cases under consideration, and this court respects the right of the Leg islature to do so.

Id. at 326-27.

In Cook, the supre me co urt did hold that it was reversible error for the trial court to ch arge the jury solely as to a Range I punishment, when, at the time of the trial, the charges for whic h Def enda nt cou ld be convicted mandated Range II punishm ent. The su preme co urt held that whatever rights the defendant might have would be lost if he were to be sentenced to a punishment greater than that which the jury wa s inform ed wou ld be imp osed. Id. at 327.

8

In Defenda nt’s case, the jury was correctly informed as to the spec ific range o f possible senten ces. In ad dition, no les ser includ ed offen ses to the charges of rap e of a child were inc luded in the cha rge to the jury, and from the record, it appears that no lesser included offenses were applicable in the case. There fore, the jury h ad the choice, on each count of rape of a child, of either convicting the Defe ndan t or acq uitting h im. Th ere is abso lutely no thing in the record to indicate that the jury would have considered acquittal simply by being informed that the sentences had to be served day for day without the possibility of sentence re duction credits. Th e proof of Defendant’s guilt was overwhelming. We conclusively find that the trial court’s failure to inform the jury that the Defendant would not be eligible for sentence reduction credits on any sentence imposed on a conviction of rape of a child does not affirmatively appear to have affected the results of the trial on the merits . Neithe r does the trial c ourt’s failure to do so, in this particular case, prejudice the judicial process. This issue is without m erit.

TESTIMONY OF SUE ROSS

Sue Ross testified concerning statements made by the Defendant about the assault. Defendant did not object to the testimony of Ross during the trial. Since the De fenda nt failed to take action that wa s reas onab ly available to prevent or nullify any harm ful effect of the alleged e rror, he is no t entitled to relief on this issue. T enn. R . App. P. 3 6(a). De fendan t argues , howeve r, that it was “plain error” for the trial court to allow this testimo ny. Tenn. R . Crim. P. 52(b). Rule 52(b) allows this court, in its discretion, to add ress “plain error . . . where necessa ry to do substan tial justice.”

9

Sue Ross, a ped iatric nurse practitioner, examined the victim at the hospital within a few hours of the victim’s release by Defendant. Ms. Ross’ specialty is the medical evaluation of children who have been sexually abused. She testified that during the physical examination of D.S. she obtained a brief history from the child for the purposes of medical diagnosis and treatment . She further testified that the history from the victim is necessary to know what type of tests need to be ordered, to make the most accurate diagnosis, and to prescribe the best treatm ent for the c hild. Ms. Ross testified that D.S. related that he had been abduc ted and taken to a n apartm ent where a male had a nally an d orally penetrated him with the perpetrator’s penis. Furthermore, D.S. told Ms. Ross that he had been forced to take a shower, his clothes had been washed, and that shampoo had been used on his rectal area prior to the penetration. D.S. also informed Ms. Ross that he suffered from burning and stinging when he had had a bowe l movem ent followin g the sex ual assa ults.

The trial court, without request by Defendant, instructed the jury that this testimony by M s. Ross was hearsay, but was admissible only to show the information available to the pediatric nurse practitioner for her diagnosis and treatment of the victim. The trial court s pecific ally instru cted th e jury tha t this testimon y by Ms. R oss wa s not evide nce tha t the even ts actually h appen ed.

Defendant relies upon State v. Livingston, 907 S.W.2d 392 (Tenn.

1995), arguing that the trial court committed plain error by allowing this evidence of “fresh complaint.” Our supreme court in Livingston held that:

[No] acce ptable basis e xists for stretching the fresh-complaint doctrine to the extent that it is applic able to case s involvin g child victims. Consequently, we hold that in cases where the victim is a

10

child, neither the fact of the complaint nor the details of the complaint to a third party is admissible under the fresh-complaint doctrine.

Id. at 395.

Defendant’s argument, even if not waived by failure to object at trial, is misplaced. The evidence was not “fresh comp laint” evidence. Th e trial court instructed the jury that the testimony was admitted for the purposes of showing the information available to the nurse prac titioner for he r diagno sis and tre atmen t. This testimony was admissible under Rule 803(4) of the Tennessee Rules of Evidence. See State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996); State v. Maurice Gordon, ____ S.W.2d _____, No. 01S01-9605-CC-00084, Davidson Coun ty (Ten n., at N ashville , Sept. 29, 19 97) (th ree-ye ar-old sex ab use vic tim’s complaint of pain and statemen t of who cause d the pain we re admissible for the purpos e of me dical diag nosis an d treatm ent). This issue is with out me rit.

C ONSECUTIVE SENTENCING

Defendant argues that the trial court erred by imposing co nsecutive sentences. When an accused challenges the length, range or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with the presumption that the determination s made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fa cts and c ircums tances . State v. Ashby, 823 S.W.2d 166, 16 9 (Ten n. 1991 ).

11

In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-1 02, -103 , and -21 0; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App . 1987).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991 ).

In ordering conse cutive sen tences , the trial court found that the Defendant was a n offen der wh ose re cord o f crimin al activity is extensive, Tennessee Code Annotated section 40-35-115(b)(2), and that Defendant was convicted of two (2) or mo re statutory offenses involving se xual abu se of a minor, Tenn. Code Ann. § 40-3 5-115(b)(5). Ho wever, the trial court specifically stated that it was not primarily relying upon the record of criminal activity of Defendant in ordering con secutive sentencing, but was instead relying upon factor five (5) of Ten nesse e Cod e Anno tated sec tion 40-3 5-115(b ).

12

Accord ing to the pre-sentence report of Defendant, he had two (2)

prior convictions, one fo r robbery with a d eadly weapon, and another conviction for simple robbery. Both of these offenses occurred in 1984. In his brief, the Defendant does not co ntest the trial court’s finding that his crimina l record is extensive. Because the Defendant has failed to cite au thority to supp ort his argument, this issue is waived. T enn. C t. Crim. Ap p. 10(b); State v. Killebrew, 760 S.W .2d 228, 231 (Tenn. Crim . App.), perm to appeal denied, id. (Tenn. 1988). Instead the Defendant argues: (a) that a statutory enhancement factor found in Ten ness ee Co de An notate d sec tion 40 -35-1 14 wa s imp roper ly applied in ordering consecu tive sentencing, (b) the trial court failed to consider mitigating factors advanced by Defendant in ordering consecu tive sentencing; and (c) the trial court impro perly relied on proof that Defendant tested positive for HIV as an enhance ment factor to o rder consecu tive sentences.

The primary fa ctor which the trial cour t relied upon in ordering consecu tive sentencing was that the defendant was “convicted of two (2) or mo re statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant’s undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the vic tim or victims.” Ten n. Code A nn. § 40-35-1 15(b)(5). Certa inly the Defendant was convicted of more than two offe nses o f rape of a child, and the circum stance s were a ggravatin g. The D efenda nt used a knife to force D.S. to submit to the repeated rapes, holding it against his head. After Defendant stopped raping the victim and forced him to take a shower, he implied that he migh t kill the child so that he w ould no t tell about the rapes. D.S. was

13

compelled to convince the Defendant that he would not tell, making up a story that his cousin had already s exually ab used h im. W hile a portio n of the sta tute refers to the time span of the defendant’s undetected sexua l activity, th is is inapp licable to the Defendant in the case sub judice. The nature and scope of the acts were s uch th at D.S . was a bduc ted, rap ed bo th ana lly and orally with the Defen dant’s penis while h e cried and th e Def enda nt held his ha nd ove r his mouth, and the victim was held at the Defendant’s apartment until the next mornin g.

There was more than sufficient testimony of the residual, physical and mental dam age to D.S . In addition to his physica l injuries from the anal rapes, his mother described that D.S. had severe emotional difficulties following the rape. While D.S. was formerly an honor stud ent, he failed the sch ool term following the rapes. He also became violent, fighting with other children and using chairs as weapons. Now D.S . is afraid of strangers an d leery of everyone. Finally, the victim suffers from the possibility that the HIV virus was transmitted to him from th e Def enda nt durin g the ra pes. W hile cons ecutive sente nces shou ld not be routinely imposed, the aggregate amount of the se ntenc ing is re ason ably related to the seve rity of the offenses involved. See State v. Wilkerson, 905 S.W.2d 933, 9 39 (T enn. 1 995). T he De fenda nt’s failu re to ex hibit remorse or the potential for rehabilitation for his acts requires a lengthy period of incarceration to protec t the public from po ssible futur e misco nduct. Id. at 939.

W e therefore find that consecutive sentencing as imposed by the trial court is appropriate.

14

W hile the Defe ndant d oes no t state the imposition of enhancement factors as an issue, he argu es in his br ief that he d id not kno w that he was H IV positive at the time the offenses were committed. Tenn. Code Ann. § 39-13- 521(d)(1). The enhancement factor the Defendant questions was conceded by the State as inapplicable. Tennessee Code Annotated section 39-13-521(d)(1) provides that “the court may consider as an enhancement factor at the time of sentencing that the defendant has tested positive for HIV.” In ad dition to the fact that Defen dant wa s not teste d for HIV until the day prior to the sentencing hearing, there is no proof in the record that the Defendant knew he was infected with the HIV virus at the time of the offense. However, this does not prevent application of the fact of a positive test for HIV in c onsideration o f consecutive sentencing under Te nnessee Code A nnotated se ction 40-35-11 5(b)(5).

In his brief, Defendant states that the trial court erred in using, as an enhancement factor, that “the person al injuries inflicted upon the victim were particularly great. Tenn. Code Ann. § 40-35-114(6). However, this particular enhan ceme nt factor wa s not use d by the trial c ourt.

The trial court found the following enhancement factors applicable:

(a) The offense involved the victim and was comm itted to gratify the defendant’s desire for pleasure or excitement. Tenn.

Code A nn. § 40-35-1 14(7).

(b) The defendant possessed or employe d a firearm, explos ive device, or othe r dead ly weapon during the commission of the offense. Ten n. Code A nn. § 40-35-1 14(9).

(c) The felony was committed while th e defe ndan t was o n paro le from a prior felony conviction. Tenn. Code Ann. § 40-35-

114(13 )(B).

15

(d) The crime was committed under circumstances under which the potential for bodily injury to a victim was great. Tenn.

Code A nn. § 40-35-1 14(16).

(e) The defendant had tested positive for HIV. Tenn. Code Ann.

§ 39-13-52 1(d)(1).

The defendant does not challenge the applicability of the first three enhancement factors, and the record clearly shows that tho se factors are applicable. The indictment charging Defendant with especially aggravated kidnapping alleged, that in commission of the offe nse, th e victim was thirteen (13) years of age. Therefore, use of the deadly weapon was not an essential element of that offens e as alleg ed in the in dictme nt. Furthermore, pleasure or excitement is not an es sential element of the offense of rape and factor number (7) was therefore applicab le to all of the s entenc es. See State v. Adams, 864 S.W.2d 31 (Tenn. 1993). Defendant admitted during testimony at the sente ncing hearing that he w as on p arole at the time of the offenses for which h e was c onvicted .

In applying factor number 16, the trial court stated that penile-rectal penetration of a young ch ild is certainly a thing that could ca use potential injury. The trial court further noted that the whole criminal episode was one which involved risk for physical injury. The trial court also relied upon the potential for HIV transm ission, an d the na ture of the activity of the offense. In State v. Williams, 920 S.W.2d 247, 261 (Tenn. Crim. App. 1995), our court, citing State v. Smith , 891 S .W .2d 92 2, 930 (Ten n. Crim . App. 1 994), h eld that factor 16 shou ld not be applied in cases of aggravated rape by bodily injury “absent extraordinary circum stances.”

16

In the case sub judice, Defendant was convicted of rape of a child, which did not includ e bodily inju ry in the elem ents of the crime ch arged. Three (3) of the convictions for rape of a child involved rectal penetration of the victim. As discussed above, the Defendant impliedly made reference that he would ha ve to do harm to or even kill the victim instead of turning him loose. Under the circumstances of this case, we feel that factor number 16 was properly applied.

The State concedes that the enhancem ent fac tor foun d in Tennessee Code Annotated section 39-13-521(d)(1) is no t applic able in this particular case . Defe ndan t further argue s that th e trial court did not apply the mitigating factor found in the especially aggravated kidnapping statute, Tennessee Code Annotated section 39-13-305(b)(2). That statutory mitigating factor states “[i]f the offender voluntarily releases the victim alive or voluntarily provides information leading to the victim’s safe release, such actions shall be considered by the court as a mitigating factor at the time of sentencing.” The Sentencing Com mission Comm ents to Subs ection (b) state that the court is required to consider the vo luntary safe release of the victim as a m itigating factor. This provision reflects the concern for the sa fety of th e victim . If applic able, th is statutory mitigating factor wou ld only apply to the sen tence for especially aggravated kidnapping. During the course of the especially aggravated kidnapping, the Defendant comm itted five (5) se parate a cts of rape o f a child. A dead ly weapon, a knife, was u sed in the co mm ission of the o ffense s. The victim has suffered in several ways following the commission of the criminal acts, as discussed above . Even if applica ble, this mitigating factor would be entitled to little, if any, weight.

17

Finding that four (4) enhancement factors were properly applied, and that one (1) mitigating factor, if applicable, would be entitled to little weight, we approve the sente nces im posed by the trial co urt.

The issues raised a nd argued by Defenda nt con cernin g his senten cing are w ithout me rit.

The judgments of the trial court are affirmed.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH B. JONES, Presiding Judge

___________________________________

WILLIAM M. BARKER, Judge