Opinion
C.C.A. No. 02C01-9708-CR-00319.
August 6, 1999.
Shelby County 96-11229, Honorable Arthur T. Bennett, Judge, (Aggravated Rape)
AFFIRMED
FOR THE APPELLANT:
PAMELA J. DREWERY, (on appeal), JOSEPH S. OZMENT, (at trial).
FOR THE APPELLEE:
JOHN KNOX WALKUP, Attorney General Reporter, MARVIN E. CLEMENTS, JR., Assistant Attorney General, WILLIAM L. GIBBONS, District Attorney General, PERRY HAYES, Assistant District Attorney General.
OPINION
The defendant, Antonio M. Kendrick, was convicted of aggravated rape following a jury trial in the Shelby County Criminal Court. He was sentenced as a Range I offender to twenty years in the Tennessee Department of Correction, to be served consecutively to a sentence for a prior unrelated rape conviction. The defendant now appeals, challenging the sufficiency of the evidence, certain jury instructions, the composition of his jury, and his sentence. We AFFIRM the judgment of the trial court.
BACKGROUND
On May 15, 1995, the defendant approached the victim, Marcelita Hester, and, brandishing an object that she thought to be a wrench, forced her to get into his car. The defendant drove with Hester in the car for several minutes. While he drove, the defendant asked Hester whether she remembered him. He told her to "take a good look" and said that she had cursed him at a grocery store earlier. Hester said that she did carefully observe the defendant but remembered neither him nor or any such incident.
The defendant continued to drive for some time. Hester testified that she focused on his voice and features during this time so that she could identify him later. She also observed numerous details of the defendant's car. The defendant stopped and demanded that she perform oral sex, threatening to "bash [her] head" if she did not. Hester complied. While she did, the defendant resumed driving for another five to ten minutes. He then stopped again, forcibly removed Hester's clothes, and forcibly engaged in vaginal sex with her. He then drove Hester to her aunt's home and released her. He backed down the street, preventing Hester from observing his license plate.
Hester immediately called the police and reported the rape. She subsequently identified a person from a photo lineup as her assailant. After investigation, however, police concluded that this identified person could not have committed the crime.
Three or four days after the rape, Hester saw the defendant driving near her home. Recognizing both the car and the defendant, Hester followed him and obtained his license plate number. She then supplied this information to the police, and the defendant was arrested and indicted for aggravated rape.
JURY INSTRUCTIONS
The defendant alleges two errors in the trial court's instructions to the jury. First, he argues that the trial court erred in failing to charge criminal attempt as a lesser included offense. A recent Supreme Court decision compels our concluding that this omission, even if in error, was harmless.
Clearly, criminal attempt is a lesser included offense and must be charged when supported by the evidence. See State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). However, "[a] trial judge . . . need only instruct on lesser offenses in circumstances in which evidence in the record would support a conviction for the lesser offenses." Id. at 310, 311 n. 5. The defense theory at trial was mistaken identity and alibi, not that the victim was not raped. The defendant did not suggest that the offense was incomplete. The state therefore argues that the attempt need not have been charged because evidence did not support attempt.
In theory, the jury might have credited evidence that would support an attempted rape conviction but declined to credit the victim's testimony that penetration occurred, even in the absence of any suggestion that penetration did not occur. In addition, the attempt statute clearly states, "It is no defense to prosecution for criminal attempt that the offense attempted was actually committed." Tenn. Code Ann. § 39-12-101. Nevertheless, we need not decide whether an attempt instruction was required. Even assuming that the trial court erred, any error was clearly harmless.
In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the Tennessee Supreme Court held that a trial court's failure to instruct the jury as to a lesser offense was harmless error when the jury was instructed as to another lesser offense but convicted the defendant of the greatest charged offense. In the present case, the trial court instructed the jury on aggravated rape, rape, sexual battery, aggravated assault, and assault. As inWilliams, the jury in the instant case convicted the defendant of the greatest charged offense. Thus, following Williams, we find that omitting a charge of attempt as an additional lesser offense was harmless. This issue is without merit.
The defendant also argues that the "reasonable doubt" charge was deficient in that it did not include the phrase "moral certainty." This Court has repeatedly reviewed reasonable doubt instructions similar to the instruction in the instant case and concluded that the lack of "moral certainty" language does not render the instruction constitutionally deficient. See, e.g.,State v. Jose Holmes, No. 02C01-9505-CR-00154 (Tenn.Crim.App. filed Dec. 10, 1997, at Jackson).
SUFFICIENCY OF EVIDENCE
The defendant asserts that the victim's identification of him was infirm and that, absent this identification, the evidence is insufficient to support the jury's verdict. The defendant points out that Hester mistakenly identified another person from a photo lineup as her assailant and mistakenly identified the defendant's car as a Buick Skylark rather than a Buick LeSabre. Nevertheless, Hester identified the defendant in court and related numerous details of the interior of the defendant's vehicle. The jury was entitled to credit this evidence. Hester also subsequently recognized the defendant and the vehicle used in her assault as he drove down her street. This issue is without merit.
JURY COMPOSITION
The defendant next argues that the service of a deputy jailer, Gloria Nathaniel, as a juror in his case compromised the verdict. The defense questioned Nathaniel regarding her prior knowledge of the defendant from the jail but declined to challenge her, although the defense had not exercised all of its challenges. Here, the defendant argues that Nathaniel was not fully honest with the defense during the voir dire when she "denied knowing the appellant." He also suggests, although admitting "there is no direct proof," that Nathaniel inappropriately influenced other jurors.
At a hearing on the defense's motion for a new trial, Nathaniel testified that she did not know the defendant but that she knew of him; specifically, she said she knew that he had been housed at the jail. She stated that she did not know what the defendant was accused of prior to trial, that she had never looked at the defendant's record or "rap sheet," that none of her co-workers had ever discussed the defendant's record with her, that her vague knowledge of the defendant did not affect her vote on the verdict, and that she did not influence any of the other jurors with such information. The trial judge specifically found no indication of any bias or prejudice. The trial court did not abuse its discretion in denying the motion for a new trial. This issue is without merit.
SENTENCING
Finally, the defendant argues that the trial court erroneously applied certain enhancement factors and that his sentence is, therefore, excessive. Appellate review of a challenge to the length or manner of service of a sentence is de novo on the record, "with a presumption that the determinations made by the court from which the appeal is taken 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 facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The appellant carries the burden of showing that his sentence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm'n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn.Crim.App. 1996).
At the time of the instant offense, the defendant had been recently convicted of another unrelated rape and was on bail pending appeal of that conviction to this Court. See State v. Antonio Kendrick, No. 02C01-9604-CR-00121 (Tenn.Crim.App. filed Nov. 5, 1997, at Jackson). Accordingly, the trial court found applicable enhancement factors (1) and (13) — that the "defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range"; and that the "felony was committed while on [appeal bond] from a prior felony conviction." Tenn. Code Ann. § 40-35-114(1), (13).
The defendant argues that because his appeal had not been resolved at the time of the sentencing hearing in the present case, his conviction was not "final" and could support neither enhancement. We disagree. The defendant was on bail from a prior felony conviction at the time of his present felony offense; potential reversal of his prior conviction does not alter this fact. Thus, enhancement factor (13) would apply even if his prior rape conviction had been ultimately overturned. We also find that the defendant's prior trial court conviction, although still subject to appeal, was sufficient to establish the applicability of enhancement factor (1). Moreover, although the defendant did not include his presentence report on this appeal, the record indicates that his criminal history may comprise additional behavior that would further support application of this enhancement. This issue is without merit.
CONCLUSION
The judgment of the trial court is AFFIRMED.
_____________________________ JOHN EVERETT WILLIAMS, Judge
CONCUR:
(See dissenting opinion) _____________________________ GARY R. WADE, Presiding Judge
_____________________________ THOMAS T. WOODALL, Judge
DISSENTING OPINION
I write separately to address whether the trial court erred by failing to require the state to elect the proof it relied upon for a conviction. While I concur in the results of the remaining issues addressed by the majority, in my view, the state's failure to make an election qualified as plain error. On that basis, I would reverse the judgment of conviction and remand for a new trial.
The trial court has a duty to require the state, at the close of its case-in-chief, to elect which proof it relies upon for a conviction where evidence of more than one instance of sexual misconduct has been presented to the jury. Jamison v. State, 94 S.W. 675 (Tenn. 1906); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973); State v. Shelton, 851 S.W.2d 134, 136 (Tenn. 1993). An election by the state is required under such circumstances regardless of whether the defendant makes a demand. Burlison, 501 S.W.2d at 804. The trial court has a duty to properly instruct the jury so that the verdict of each juror is "united on the one offense." Id. at 804. An election serves three fundamental purposes:
First, to enable the defendant to prepare for and make his defense to the specific charge; second, to protect him from double jeopardy by individualization of the issue, and third, so that the jury's verdict may not be a matter of choice between offenses, some jurors convicting on one offense and others, another.
Id. at 803. The failure of the trial court to require an election or to properly instruct the jury as to the state's election constitutes plain error. State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197, 204 (Tenn.Crim.App. 1995) (citing State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984)). In Clabo, this court found plain error because the trial court failed to request an election of proof regarding the rape of a child victim. Judge Peay, writing for this court, reasoned as follows:
The State provided proof that the defendant performed oral and anal sex on the victim. These are two separate acts, each constituting penetration under the charge of aggravated rape. Yet, the defendant was only charged with one count of aggravated rape. The court presented to the jury the proof and allegations of two acts and asked the jury if the defendant could be convicted of one count of this act. Therefore, some jurors could have concluded that the defendant was guilty based upon the proof of the oral sex and not the anal sex, and some jurors could have concluded that the defendant was guilty based upon the proof of the anal sex and not the oral sex. The defendant may have been convicted by a jury of less than twelve (12). Since all twelve (12) members did not have to find the same facts or draw the same conclusions, we find that a grave constitutional error was committed in that the defendant may have been denied a unanimous jury verdict.
Clabo, 905 S.W.2d at 205.
The facts here are similar. There was a single count indictment for aggravated rape. The victim testified that the defendant was armed with a weapon and forced her to perform fellatio on him for five to ten minutes. As he drove to a second location, he demanded that she continue to perform fellatio. Upon their arrival, the defendant forced the victim to engage in sexual intercourse. The jury heard evidence of at least two separate acts of unlawful penetration. Each act spanned several minutes and involved different areas of the victim's body and differing physical positions. Each occurred at a different location. Although unclear as to the amount of time that elapsed between the two incidents, the record does demonstrate that the defendant talked and argued with the victim during that time. He threatened her, insisted that she prove that she was menstruating, and placed a condom on his penis. Before penetrating the victim, the defendant stated, "[T]his is to make up for what you did to me. . . ." See State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996).
In Phillips, our supreme court observed that "[e]ach act . . . is capable of producing its own attendant fear, humiliation, pain, and damage to the victim. Each type of penetration requires a purposeful act on the part of the perpetrator." Id. at 665. Here, the victim described both acts in detail. This was not an instance in which the state elicited detailed information about one act and only general allegations of other acts. See Clabo, 905 S.W.2d at 204-05. The trial court instructed the jury that the definition of unlawful penetration included both fellatio and sexual intercourse but did not provide an augmented unanimity instruction. It neither required the state to elect nor instructed the jury to determine which act of penetration could be considered for a conviction. As in Clabo, it is impossible to determine which sexual act the jurors may have relied upon in reaching their verdicts. "[E]ach juror was left to choose independently the act(s) of abuse upon which to base a verdict."Walton, 958 S.W.2d 727-28.
I should point out that the closing arguments were not transcribed and are not included in the record for our review. A divided panel of this court has held that a prosecutor's closing argument may "effectively" serve as an election. State v. William Dearry, No. 03C01-9612-CC-00462, slip op. at 25 (Tenn.Crim.App., at Knoxville, Feb. 6, 1998), app. denied, (Tenn., Jan. 19, 1999). While that holding might support the view of the majority in that the defendant has failed to provide an adequate record for the disposition of the issue, I do not believe that the trial courts should be relieved of the duty to require an election or to instruct the jury that there must be a unanimous verdict on a single charge. Here, the instructions included no mention of any election by the state, formal or otherwise. The requirement of an election is "fundamental, immediately touching the constitutional rights of an accused. . . ." Burlison, 501 S.W.2d at 804. In consequence, I would reverse and remand for a new trial.
_____________________________ Gary R. Wade, Presiding Judge