Opinion
No. M2006-02599-CCA-R3-CD.
September 18, 2007 Session.
Filed March 14, 2008.
Appeal from the Circuit Court for Montgomery County; No. 40300726; John H. Gasaway III, Judge.
Judgment of the Circuit Court Reversed and Dismissed.
Roger E. Nell, District Public Defender (on appeal); and Collier W. Goodlett, Assistant District Public Defender (at trial), Clarksville, Tennessee, for the Appellant, Alec Joseph Mesot.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which Jerry L. Smith, J., joined. Thomas T. Woodall, J., filed a concurring in part and dissenting in part opinion.
OPINION
The Appellant, Alec Joseph Mesot, was convicted by a Montgomery County jury of five counts of rape of a child and one count of sexual exploitation of a minor. On appeal, Mesot challenges only his convictions for rape of a child, asserting: (1) that the evidence is insufficient to support the convictions because: (a) the State failed to sufficiently corroborate his confessions in order to independently establish the corpus delicti of the offenses and (b) the State failed to prove the element of penetration; and (2) that the trial court erred by failing to sua sponte provide a limiting instruction with regard to the introduction of pornographic images recovered from Mesot's computer. Following review of the record, we conclude that the State has failed to produce independent evidence to corroborate Mesot's confessions, which alone support the corpus delicti of the crimes of rape of a child. Accordingly, the evidence is insufficient with regard to those convictions. As such, the judgment of the trial court is reversed, and the five convictions for rape of a child are dismissed. Mesot's remaining issues are without merit.
Factual Background
The Appellant, his wife, and their one-year-old daughter, moved to Montgomery County in May 2002. Soon after moving to Clarksville, the Appellant began working as a mechanic at Sears. In December 2002, the Appellant's wife, a soldier in the Tennessee Army National Guard, was called to active duty at Fort Campbell, Kentucky, where she was required to work for extended hours. During this period, the Appellant was left alone with the victim in this case, his nineteen-month-old daughter, approximately twice per week.
The daughter's date of birth is May 6, 2001.
In December 2002, the Appellant's wife found sexually explicit images on their personal computer, which was connected to the internet, depicting "adults doing sexual things to children." On April 8, 2003, the Appellant's wife called police, and an investigation ensued. The following day, the Appellant's wife's parents removed the minor victim from the home and returned to Virginia. On April 21, 2003, the Appellant was interviewed by Detective Nichols of the Clarksville Police Department, at which time the Appellant denied any form of sexual contact with the victim. At the suggestion of the Clarksville Police Department, the Appellant and his wife met with FBI agents in Memphis who had agreed to conduct a forensic analysis of the Appellant's computer's hard drive. Prior to the examination, the Appellant informed FBI Agent Stephen Lies that he had "wiped" the images which he had downloaded from the computer's hard drive.
The Appellant signed a written consent to allow agents to search his computer, and the search resulted in agents finding five images in a temporary internet file which depicted child pornography, specifically an adult male engaged in sexual acts with a prepubescent female. The images found were created on May 8, 2003, approximately one month after the police investigation was initiated. No images created prior to May 2003 were found. Additionally, the Appellant gave the following written statement to the agents:
None of the images depicted were of the victim.
For almost a year and a half, I have found myself struggling with a curiosity of sexual interaction with children. The first time I encountered the idea of incest was when I was in the military and visited a website called "Incest Taboo.com". Approximately one year ago, I built my computer. I got internet access around December 2002, with Charter Cable Modem Service. I bought a Web Cam around January 2003. I accessed the internet site Incest Taboo.com which had several features to include posting of pictures, web chat, and video. I never posted any pictures of my daughter but saw many pictures and videos on the site that contained sexually explicit images of children. Around three weeks ago, I was lying on the couch and had the computer and web cam connected to the Incest Taboo site. I had accessed the web section of the site and came in contact with . . . @hotmail.com [screen name omitted]. He kept pushing me to do things to her. I didn't want to, but I ended up allowing him to direct me to engage in oral sex with her and also touching her genitals so that he could watch on the web cam. I really struggled with this and did not take any pictures or movies of what happened. . . .
After the interview, the Appellant and his wife returned home to Clarksville. Later that evening, the Appellant admitted to his wife that he had performed oral sex upon the victim once a week since November or December 2002.
Following a call from Agent Lies, Detective Nichols asked the Appellant to return for a follow-up interview for the purpose of ascertaining the specific dates that sexual contact with the victim had occurred. At the follow-up interview, the Appellant gave a written statement admitting that he engaged in oral sex with his daughter, which began "about a week or so after Christmas," and had "engaged in the same activity once a week."
Based upon the Appellant's confessions, a Montgomery County grand jury returned an eleven-count indictment charging the Appellant with five counts of rape of a child, one count of aggravated sexual exploitation of a minor, and five counts of sexual exploitation of a minor. Following a jury trial, the Appellant was convicted of five counts of rape of a child, Class A felonies, and one count of sexual exploitation of a minor, a Class E felony.
Analysis
On appeal, the Appellant raises two issues for our review. First, he challenges the sufficiency of the evidence with regard to his five convictions for rape of a child upon two alternative grounds: (a) that the State failed to corroborate his confessions and, thus, failed to independently establish the corpus delicti of the crimes and (b) that the State failed to prove sexual penetration, an essential element of the offense of rape of a child. Second, the Appellant asserts that it was error for the trial court not to sue sponte give a limiting instruction to the jury informing them that certain exhibits admitted at trial, specifically the images depicting child pornography, which were found on the Appellant's computer, could only be considered as evidence in his prosecution for sexual exploitation of a minor and could not be considered as evidence with regard to the charges of rape of a child.
I. Sufficiency of the Evidence
In considering this issue, we apply the rule that where the sufficiency of the evidence is challenged, the relevant question for the reviewing court is "whether, after viewing the evidence in the light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn.Crim.App. 1987). This court will not reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). These rules are applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App. 1990).
a. Corpus Delicti of the Crimes
First, the Appellant asserts that the evidence is insufficient to support his five convictions for rape of a child because the State failed to sufficiently corroborate the Appellant's confessions and no other evidence presented establishes the corpus delicti of the crimes. Conversely, the State contends that the confessions were independently corroborated because, in his confessions, the Appellant admitted that he had an interest in child pornography and child pornography was found on his computer. According to the State's argument, the Appellant's "voluntary admission that he was drawn to sexually explicit pictures of children and was interested in incest along with the series of sexually graphic images found on his computer provide adequate corroboration of his confession that he had sexually abused his infant daughter."
It is a fundamental concept of justice in this state, as well as in all state and federal jurisdictions, that the corpus delicti of the crime may not be established by a confession or an admission of the accused standing alone. State v. Housler, 193 S.W.3d 476, 490 (Tenn. 2006); State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000); Williams v. State, 80 Tenn. 211, 213-14 (Tenn. 1883). As such, the confessions of the Appellant that he committed rape of a child alone will not authorize a conviction. See Ricketts v. State, 241 S.W.2d 604, 605 (Tenn. 1951). These confessions must be corroborated by evidence which, independently of the confessions, tends to establish the corpus delicti, i.e., that unlawful sexual penetration of the victim occurred. Id.
The term corpus delicti refers to the body of the crime and encompasses two elements: (1) a harm which is statutorily proscribed, e.g., murder, theft, or rape; and (2) the unlawfulness of some person's conduct in causing that harm. See Bolden v. State, 203 S.W. 755 (Tenn. 1918).
The wisdom of this rule lies in the fact that no man should be convicted of a crime the commission of which he confesses unless the State shows, by other testimony, that the confessed crime was in fact committed by someone. The contrary would authorize a return of conditions that existed in the days of the inquisition.
East v. State, 175 S.W.2d 603, 605 (Tex. 1942); see also State v. Stapleton, 638 S.W.2d 850, 854 (Tenn.Crim.App. 1982).
The rationale for the requirement that a voluntary confession must be corroborated by independent proof at trial has been expressed as follows:
[T]he independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.
Opper v. United States, 348 U. S. 84, 93, 75 S. Ct. 158, 164-65 (1954) (citations omitted); see also Smith v. United States, 348 U.S. 147, 74 S. Ct. 194 (1954); Housler, 193 S.W.3d at 490 (citing 1 John W. Strong, McCormick on Evidence 556 (4th ed. 1992)). It is acknowledged that the corroboration rule "infringe[s] on the province of the primary finder of facts . . . [and] restrict[s] the power of the jury to convict." Housler, 193 S.W.3d at 490. (citing Smith, 348 U.S. at 153, 75 S. Ct. at 198-99). Due process is violated when the jury convicts on the basis of a defendant's confession absent corroborating evidence of the corpus delicti. Id. (citing Smith, 24 S.W.3d at 281).
The dissent relies upon Opper and Smith as authority for establishing the presence of corroborating evidence of the corpus delicti in this case. We conclude, however, that Opper and Smith are factually distinguishable from the case before us. The facts of Opper reveal that independent evidence of the crime was established. In Opper, the independent proof introduced established one element of the offense beyond a reasonable doubt, leaving the remaining element of the charged crime to be established by the defendant's admissions. However, in this case, there was no evidence introduced, other than the Appellant's admissions, which independently tended to establish the commission of the crimes charged. In Smith v. United States, substantial proof was admitted, beyond the defendant's admissions, which tended to establish the existence of the crime of tax evasion and the defendant's participation in this crime. The government's proof established substantial expenditures, investments, and savings, owned by the defendant, including nine new bank accounts totaling fourteen accounts in twelve banks, brokerage accounts, and investments in realty, during the period in which no taxes were paid or no tax returns were filed by the defendant, which was corroborative of the defendant's guilt. Id. at 197-200.
We would acknowledge that corroboration of the corpus delicti may be established solely by circumstantial evidence and
when there is a written confession [then] the corroborative evidence . . . need not be as convincing as the evidence necessary to establish a corpus delicti in the absence of any confession. This evidence is sufficient if of itself it tends to connect the defendant with the commission of the offense, although the evidence is slight, and entitled, when standing by itself, to but little consideration. Thus when we have a verdict even though founded on slight evidence of corroboration connecting the defendant with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.
Housler, 193 S.W.3d at 490 (citing Ricketts, 241 S.W.2d at 606) . Nonetheless, it cannot be ignored that "[a]ll the elements of the offense must be established by independent evidence or corroborated admissions. . . ." Id. at 490-91.
We note that the dissent relies upon Ricketts and State v. Ellis, 89 S.W.3d 584 (Tenn.Crim.App. 2000), as authority for establishing the presence of corroborating evidence in the instant case. However, we conclude that these cases are factually distinguishable in view of the corroborating evidence presented in those cases. In Ricketts v. State, the corroborating evidence, outside the defendant's confession, established that a fire occurred and was caused by other than accidental means; "that tracks were found in a cultivated field going from the burned house toward the road leading to the home of the [defendant];" that containers used by the defendant in setting the fire were found at the burned residence; and the time-frame in which the fire occurred was consistent with the defendant's confession.
In State v. Ellis, which involved five convictions for sexual offenses, the victim's statement, which was introduced into evidence, established that she had been sexually molested by the defendant and that "it happened more than one time." When the police entered the Appellant's bedroom, he was on the bed "pulling his pants up over his hips." The nine-year-old victim was in the room "wearing a t-shirt but was nude below the waist." The presence of semen and other body fluids were identified on the victim's underwear, which were found in the bedroom. "A DNA analysis of the semen revealed a DNA profile consistent with the Appellant's DNA profile." Vaginal swabs obtained from the victim established the presence of sperm cells. The physical examination revealed tears in the victim's hymen. We would acknowledge that although one of the defendant's convictions was based solely upon the defendant's confession that the crime occurred, indisputable corroborative proof clearly established that the defendant engaged in a pattern of illicit sexual conduct with the victim during a period of time when this crime was committed.
In denying the Appellant's motion for judgment of acquittal in this case, the trial court found as follows:
I understand [the defense] argument is that just because images were discovered on [the Appellant's] computer that are commonly referred to as child pornography, that does not mean that he is guilty of rape of a child. I understand further your concern that a jury when viewing those images might be hard to delineate between the two. I also understand [the State's] argument that discovery by [the Appellant's wife] of the . . . child pornographic images on the computer . . . the denial by [the Appellant] and his later admission to her, and the fact that the photographs were consistent with that portion of his statement where he said he had developed a — he had been struggling with — . . . he had interest in child pornography — or pornographic websites which include child pornography, I just think that that is sufficient amount of evidence, however slight, that goes to the crime — the alleged crime of . . . rape of a child . . ."
The court's finding that the Appellant's "interest in child pornography" independently corroborates the rape of the victim is misplaced. We know of no authority which holds that all persons who have an interest in child pornography are also child rapists. Thus, the finding that the Appellant had an interest in child pornography neither "tends to establish" nor compels the inference that the Appellant committed the crime of rape of a child. We would note that the trial court, at the close of the proof, observed:
This case is unusual in that there is no medical evidence to substantiate an intrusion; there is [sic] no witnesses to any sexual activity; there is no victim's testimony. . . . So, the entire body of evidence that has been introduced as to the conduct engaged in by the defendant, if any, is from the defendant's own words in the form of admissions against interest that he made to law enforcement officials.
Thus, the court acknowledged that no proof other than the Appellant's confessions established the commission of the crimes. We would agree that the only proof that a crime was committed against the victim derives from the Appellant's confessions. In this case, while there are confessions to a crime, there is no evidence, other than the confessions, that a crime has occurred. We have been unable to find authority from any jurisdiction which holds that multiple confessions or admissions may alone serve as independent corroborating evidence in establishing the corpus delicti. The greater force of logic weighs against this reasoning. Indeed, in Ashby v. State, a case in which multiple confessions were given, our supreme court observed that "[t]he rule upon this subject . . . is that, while the corpus delicti cannot be established by confessions alone, yet the confessions may be taken in connection with other evidence, direct or circumstantial, corroboratingthem. . . ." 139 S.W. 872, 875 (Tenn. 1911) (emphasis added) .
Indeed, a number of cases are noted in which a defendant provided multiple confessions to various witnesses. However, in none of these cases was our supreme court's holding premised upon the fact that one confession corroborated the other. See generally Housler, 193 S.W.3d at 479; Smith, 24 S.W.3d at 281; Ricketts, 241 S.W.2d at 604; Williams, 80 Tenn. at 211.
For these reasons, we conclude that the State has failed to produce sufficient evidence to support the convictions, as no independent proof of the Appellant's uncorroborated extrajudicial statements was admitted. We would agree that the Appellant's admissions are morally repugnant. Nonetheless, it is because our laws are enacted to be applied with equal force and effect, not only to this Appellant but for all accused, that reversal of the Appellant's convictions for rape of a child is required.
b. Element of Penetration
The Appellant also challenges the sufficiency of the evidence with regard to his convictions for rape of a child on the ground that the State failed to prove the element of sexual penetration of the victim. The Appellant's argument is premised upon his assertion that the statutory definitions of "unlawful sexual penetration" and "cunnilingus" are contradictory, i.e., "cunnilingus can be accomplished without penetration and that penetration is what is required to accomplish rape."
Rape of a child is defined as "the unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age." T.C.A. § 39-13-522(a) (2003). Sexual penetration is defined by statute to mean "sexual intercourse, cunnilingus, fellation, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body. . . ." T.C.A. § 39-13-501(7) (2003). This court has defined cunnilingus as "a sexual activity involving oral contact with the female genitals" and determined that penetration of the vagina is not required. State v. Karl E. Vanderbilt, No. 70 (Tenn.Crim.App. at Jackson, Apr. 8, 1992). We would also note that in State v. Hoyt, 928 S.W.2d 935, 942 (Tenn.Crim.App. 1995), this court approved a jury instruction defining cunnilingus as "an act of sexual perversion committed by placing the mouth or tongue on or in the vagina of another." Similar definitions were approved in State v. Michael Warren Evans, No. 02 C01-9306-CC-00124 (Tenn.Crim.App. at Jackson, Mar. 2, 1994) (cunnilingus does not require penetration of vagina), and State v. Reginald L. Parker, No. 02 C01-9306-CR-00130 (Tenn.Crim.App. at Jackson, Dec. 28, 1994) (cunnilingus defined as "oral contact with female genitals" and oral penetration not required). Accordingly, we reject the Appellant's argument that "unlawful sexual penetration" cannot be accomplished by the act of cunnilingus.
II. Limiting Instruction
Next, the Appellant asserts that it was plain error for the court to fail to provide, sua sponte, a limiting instruction which informed the jury that the five images found on the computer depicting child pornography could not be considered as evidence with regard to the rape of a child charges. He also asserts as error that the court did not so instruct the jury in the final charge. According to the Appellant, the computer images were not relevant, "legally or logically," to the child rape charges and tended only to show that the Appellant had a sexual interest in children. The State contends that the Appellant has waived this issue by his failure to contemporaneously request such a limiting instruction or object to the admission of the images at trial. The Appellant concedes his failure to do so, but he urges this court to review the issue under plain error.
Preliminarily, we would note that "rarely will plain error review extend to an evidentiary issue." State v. Ricky E. Scoville, No. M2006-01684-CCA-R3-CD (Tenn.Crim.App. at Nashville, Sept. 11, 2007); see also State v. Billy Harris, No. W2003-01911-CCA-R3-CD (Tenn.Crim.App. at Jackson, Aug. 4, 2004). Following our review of the record, we are unable to conclude that review of this issue is necessary "to prevent prejudice to the judicial process." See Tenn. R. App. P. 13(b). Accordingly, the issue is waived.
CONCLUSION
Based upon the foregoing, the judgment of the Montgomery County Circuit Court is reversed, and the Appellant's five convictions for rape of a child are dismissed.
I respectfully dissent from that portion of the majority opinion which reverses the convictions for rape of a child and dismisses those five counts of the indictment.
I. Facts
The victim, a nineteen-month old girl, the Appellant, and Appellant's wife, Amanda Mesot, moved to Clarksville in May 2002. No other persons resided in their home. In December 2002, Ms. Mesot came home to find pictures on the family computer depicting "adults doing sexual things to children." Ms. Mesot testified that the Appellant had a computer program which enabled him to download the child pornography from the internet. On April 8, 2003, Ms. Mesot contacted the Clarksville police department. (Ms. Mesot did not testify at trial as to why there was a four month delay in contacting the police.) The next day, April 9, 2003, Ms. Mesot called her parents who lived in Virginia and asked them to come to Clarksville and remove the victim from the home. Ms. Mesot's parents complied and the victim was taken back to Virginia with her grandparents. Prior to the victim being taken to Virginia by her grandparents, she had been alone with Appellant approximately twice per week while Ms. Mesot was working.
After the initial report was made by Ms. Mesot to the Clarksville Police Department on April 8, 2003, Detective John Nichols of the Clarksville Police Department contacted Appellant and requested that Appellant come to the police department for an interview. On April 21, 2003, Appellant arrived at the police department. Detective Nichols advised Appellant of his Miranda rights and told him that he was free to leave at any time. Appellant stated that he "didn't mind sitting there talking to [Detective Nichols] about the investigation."
According to Detective Nichols, he and Appellant talked for "quite a while." Appellant "adamantly denied" that he had engaged in sexual acts with the victim. Appellant "pounded the desk a few times" and said that "[Appellant] wouldn't do that" and "just denied [sexual acts with the victim] the entire time" he was speaking to Detective Nichols. At some point during the interview on April 21, 2003, Detective Nichols asked if Appellant would voluntarily go to Memphis and talk to F.B.I. agents. Detective Nichols knew, but apparently did not convey to Appellant, that the F.B.I. agents in Memphis handled "crimes against children." Detective Nichols gave Appellant the name and telephone number of an F.B.I. agent in Memphis.
Appellant contacted F.B.I. Special Agent Stephen Lies by telephone and on May 12, 2003, Appellant and his wife took their computer and drove to the F.B.I. office in Memphis. According to Special Agent Lies, Appellant agreed to bring his computer because the computer was "part of the investigation with some incidents that happened on the computer." Appellant advised Special Agent Lies that he had "wiped" the images he had downloaded and thus "agreed to bring [the computer] down for us to review."
At the F.B.I. office, Appellant was advised of his Miranda rights and signed a waiver of those rights. Appellant was interviewed by Special Agent Lies and two other law enforcement officers for approximately two and one-half hours. During the interview, Appellant signed a consent to search his computer. On a "temporary internet file," five photographs of child pornography were found. All five images had been created on the Appellant's computer on May 8, 2003.
At the conclusion of the interview with the F.B.I on May 12, 2003, Appellant signed a typed statement stating:
For almost a year and a half I have found myself struggling with a curiosity of sexual interaction with children. The first time I encountered the idea of incest was when I was in the military and visited a website called "incesttaboo.com." Approximately one year ago I built my computer. I got internet access around December 2002 with Charter Cable Modem service. I bought a webcam around January 2003. I accessed the Internet site "incesttaboo.com" which had several features to include posting of pictures, web chat, and video. I never posted any pictures of my daughter but saw many pictures and videos on the site that contained sexually explicit images of children. Around three weeks ago I was laying on the couch and had the computer and web cam connected to the incesttaboo site. I had accessed the web section of the site and came in contact with ******@hotmail.com [screen name omitted]. He kept pushing me to do things to her. I didn't want to but I ended up engaging in oral sex with her and also touching her genitals so he could watch on the web cam. I really struggled with this and did not take any pictures or movies of what happened. I want this all to end and I never was violent or abusive to my daughter. In being truthful I did have other occasions where my daughter would take off her daughter [sic] and would want me to take my pants off. She would play with my genitals and I would have oral sex with her. I would always stop when she wanted and never tried to put my penis inside her because I knew it would hurt her. I was physically abused when I was younger and I am trying to deal with my wife's abuse to me and my daughter. I only had any contact with my daughter when she wanted it. I want to get counseling for me and my family so we can stay together.
Appellant was allowed to leave the F.B.I office after the interview concluded, and he and Ms. Mesot drove back to Clarksville. The F.B.I. kept the computer. Ms. Mesot was not present during Appellant's interview with the F.B.I. in Memphis and the agents did not interrogate or otherwise question Ms. Mesot.
After Appellant and Ms. Mesot arrived at their home on the evening of May 12, 2003, Appellant voluntarily told his wife about his sexual activities with their nineteen-month-old daughter. According to Ms. Mesot's testimony at trial, Appellant began performing oral sex on their daughter in November 2002. Appellant told his wife that the frequency of this sexual conduct was approximately once per week. According to Ms. Mesot, Appellant stated that the child would "run around naked through the house" and become "fussy" until Appellant performed oral sex on her. Appellant added that the child would pull his head down towards her genital area. Appellant denied having sexual intercourse with the victim. Appellant did admit to using the web cam to broadcast to other internet users his acts of engaging in oral sex with the victim. Appellant stated that he did this because "people would beg him to do it."
Detective Nichols was advised of the content of Appellant's interview with the F.B.I. agents on May 12, 2003, and he requested Appellant to return to the Clarksville Police Department for another interview. Detective Nichols wanted to discover specific dates of criminal activity. Appellant returned to the police department on May 15, 2003. Detective Nichols again advised Appellant of his Miranda rights and told Appellant again that he was there voluntarily and was free to leave at any time. Appellant signed a waiver of his Miranda rights. Detective Nichols and Appellant talked for about an hour in the interview room. Appellant said he would write out a statement and Detective Nichols left the room. Appellant's hand written statement was made an exhibit and reads as follows:
The first time that my daughter and I had oral sex was about a week or so after Christmas. I was asleep on the couch and she came over and crawled up on top of me and sat down on my face and wiggled around a little. I stuck out my tongue and she seemed to like it. She would say "Yes, Yes" as she wiggled around and acted like she knew what was going on. After that I guess we engaged in this same activity once a week upon her request. If at any time she wanted me to stop then I would stop. Sometimes she wanted me to take my clothes off or rather helped/made me take them off after which she would see my penis and kind of get "scared" and help/make me put them back on.
Sometimes she would touch my penis however, at this present time I do not recall her ever trying to put it in her mouth. As stated before she would normally get scared and say "No, No" and shake her head while I/we put my clothes back on.
The above is the substance of the evidence at trial. Appellant did not cross-examine Ms. Mesot, Detective Nichols, or Special Agent Lies. Appellant did not testify or offer any proof.
A summary of the evidence, taken in the light most favorable to the State, shows that Ms. Mesot discovered child pornography on the family computer in December 2002. These images had been downloaded by Appellant. Appellant admitted that for about eighteen months prior to May 2003, he had had a "curiosity of sexual interaction with children." He obtained internet access on his computer in December of 2002, the same month Ms. Mesot found the child pornography images. While the trial record is silent as to why Ms. Mesot waited four months to contact authorities, she nonetheless contacted the Clarksville Police Department on April 8, 2003, to make a "report." The very next day she requested that her parents come from Virginia and take her daughter home with them. Appellant was not alone with the victim from April 9, 2003, through the time of trial.
On April 21, 2003, Appellant voluntarily went to the Clarksville Police Department and agreed to speak with Detective Nichols. Appellant adamantly denied having any sexual contact with his daughter. At Detective Nichols' request, Appellant agreed to be interviewed by the F.B.I., and Special Agent Lies conducted the interview. Appellant agreed to bring his computer with him to the interview on May 12, 2003, but stated that he had "wiped" clean the child pornography images. Appellant signed a consent to allow law enforcement officers to search the computer. In the search the officers discovered five child pornography images in a "temporary internet file." The images were created on the computer on May 8, 2003. Appellant signed a waiver of hisMiranda rights and then signed a typed statement in which he admitted, among other things, to reluctantly engaging in performing oral sex on his daughter while being broadcast over the internet via his web cam. He stated he did this at the urging of another internet user. He also admitted that on other unspecified occasions he performed oral sex on the victim and that she would touch his genitals.
Some hours later at his home in Clarksville, Appellant was alone with his wife and, according to her testimony, voluntarily told her what happened. Appellant proceeded to admit that he had performed oral sex on their daughter about once per week from November 2002 until the child was removed from the home in April 2003. He denied having sexual intercourse with the child, but did give his wife details about how the child would be naked and become fussy and cry and would stop only when he performed oral sex on her. He admitted to his wife that he had performed oral sex on the victim while being broadcast over the internet via the web cam. He stated to her that he did this because "people would beg him to do it."
Three days later on May 15, 2003, Appellant handwrote a statement for the Clarksville Police Department. He signed this statement. The statement was written by Appellant after voluntarily attending another interview with Detective Nichols in which Appellant was read and waived his Miranda rights. In the statement, Appellant admitted to numerous occasions of performing oral sex on his daughter and provided specific details about the incidents.
II. Law and Analysis
In Opper v. United States, 348 U.S. 84, 75 S. Ct. 158 (1954), the defendant was convicted of a violation of 18 U.S.C. § 281, which prohibited a person from inducing a federal employee to accept outside compensation for services rendered regarding a federal contract. The defendant had admitted to the F.B.I. that he had met with the federal employee regarding the sale of goggles for emergency kit use by the Air Force and had loaned $1,200 in cash to the employee for payment on the employee's mortgage. The defendant admitted that no security was given for the loan, there was no agreement for interest, none of the money had been repaid as of the time of the interview with the F.B.I., and he did not know if the employee even owned a home. Independent of the defendant's statement to the F.B.I., the government was able to prove that a long distance phone call was made from the employee's home in Dayton, Ohio to the defendant's home in Chicago on April 13, 1951, that the defendant cashed a personal check dated April 13, 1951, for $1000, and that there was an airline ticket in the federal employee's name for a round trip flight from Dayton to Chicago on April 14, 1951, which returned the same day.
One of the defendant's issues raised on appeal by certiorari to the Supreme Court was "[w]hether a conviction can be sustained where there is, apart from an admission made to law enforcement officers after the acts charged as crimes, no proof of the corpus deliciti."Opper, 348 U.S. at 86 n. 3, 75 S. Ct. at 161 n. 3. Addressing this issue as a determination of "the extent of the corroboration of admissions necessary as a matter of law for a judgment of conviction," the Supreme Court reviewed the divergence of rulings by the federal courts.Id. at 92, 75 S. Ct. at 164. The Court in Opper concluded,
Whether the differences in quantum and type of independent proof are in principle or of expression is difficult to determine. Each case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions. However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti . . . It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.
Id. at 93, 75 S. Ct. at 164 (emphasis added).
Noting that the corroborative evidence in the Opper case which tended to prove the truthfulness of the defendant's statements failed to independently establish the corpus delicti of the charged offense, the Court still affirmed the convictions. The defendant's statement to the F.B.I. and the corroborative evidence of that statement established one element of the offense: the payment of money by defendant to the federal employee. Id. at 94, 75 S. Ct. at 165. The remaining element, namely the rendering of government related services by the federal employee, had been established entirely by other independent evidence not corroborative of the defendant's statement, but essential to establish all the elements of the offense necessary to sustain the conviction. (Introduction of "substantially uncontroverted evidence of [the federal employee's] efforts in gaining acceptance by the Government of [the defendant's] previously rejected goggles."Id. at 94 n. 13, 75 S. Ct. at 165 n. 13.)
I conclude that the pertinent holding of Opper as it relates to the case sub judice is that evidence which is necessary to corroborate a defendant's confession does not have to independently establish the corpus delicti of the charged crime, and the most important factor to be determined is whether the corroboration sufficiently establishes the trustworthiness of the defendant's confession.
In Smith v. United States, 348 U.S. 147, 74 S. Ct. 194 (1954) decided the same day as Opper, the Supreme Court addressed the corroboration issue in a tax evasion case. Regarding the precise issue of the amount of corroboration required to substantiate the commission of the charged offense, the Supreme Court held:
It is agreed that the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty . . . In addition to differing views on the substantiality of specific independent evidence, the debate has centered largely about two questions: (1) whether corroboration is necessary for all elements of the offense established by admissions alone . . . (2) whether it is sufficient if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged . . . We answer both in the affirmative. All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense `through' the statements of the accused.
Smith, 348 U.S. at 156, 75 S. Ct. at 199. (emphasis added.)
The Court in Smith indicated that corroboration in that case must be "apart from petitioner's admissions," but it appears from a reading ofSmith that all of the defendant's inculpatory statements were made to law enforcement officers. Id. at 157, 75 S. Ct. at 199, See generally Smith, Id. at 157 n. 4, 75 S. Ct. at 200 n. 4. Absent from Smith is an explicit prohibition from using one or more inculpatory statements by a defendant to corroborate a separate confession/admission in all aspects and in all circumstances.
Accordingly, based on Smith, I conclude that a confession/admission can be "bolstered" by independent evidence, which can allow the criminal offense to be proved "through" the defendant's statements.
At least one Tennessee case appears to permit statements made by a defendant to be part of the corroboration of that defendant's "confession." In Ricketts v. State, 192 Tenn. 649, 241 S.W.2d 604 (1951), the defendant was convicted of the arson of the dwelling house of Ms. Lena Gray in Wayne County. Ms. Gray and her children left the home on July 4, 1950, at 9:00 a.m. and when they returned at 6:00 p.m. the home had burned down. Before they left they had extinguished the fire in the cook stove, and the stove was relatively new, the flue was in good condition, and the house was not wired for electricity. The day before the fire, Ms. Gray had purchased a two-gallon can of kerosene and placed it on the back porch near a milk bucket. Footprints were observed in a cultivated field "some distance away" from the burned home. These footprints led from the general area of Ms. Gray's home to the road going to the defendant's house, but the prints were not proven to belong to the defendant. On the day after the fire, the defendant left his home and went to Alabama to visit his uncle. He waived extradition and returned to Tennessee voluntarily after learning he was a suspect in the arson. On his way back the defendant "made certain statements and confessed to the burning of the dwelling house" of Ms. Gray. Ricketts, 241 S.W.2d at 605. According to our Supreme Court's opinion, the defendant "readily admitted that he set fire to the house," and a few days later signed a detailed written confession to the sheriff and two deputy fire marshals.Id. In a separate instance, the defendant "narrated substantially the same facts to other officers on a different occasion." Id. The officers testified at trial as to the defendant's narrative to them.
The issue on appeal in Ricketts was whether the State had corroborated the corpus delicti independently of the defendant's confession. Our Supreme Court noted that "[n]o universal and invariable rule can be laid down as to what would amount to proof of corpus delicti. Each case depends on its own peculiar circumstance." Id.
Noting that inculpatory statements made by the defendant in addition to the signed confession could be included as corroborating evidence, the Court in Ricketts held:
It seems to us that from these various things, above indicated aside from the confession, that there is sufficient corroborating evidence to connect the [defendant] in error with this fire. The evidence plainly negatives any accidental or providential cause of the fire and leaves only one inference that the jury could draw that the fire was set by someone. It seems that the jury had the right to infer from these things, from the fleeing from this State to the State of Alabama by the [defendant], the fact that the tracks crossed the field in that way, and that he had made statements of what he did, were sufficient to corroborate the written confession.
Id. at 606 (emphasis added).
More recently in State v. Smith, 24 S.W.3d 274 (Tenn. 2000), our Supreme Court relied upon Ricketts, Ashby v. State, 124 Tenn. 684, 139 S.W. 872 (1911), and Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d 130 (1966) to reaffirm the requirement that the State cannot base a conviction solely on a defendant's confession. There must be some corroborating evidence that establishes the corpus delicti or body of the crime. Smith, 24 S.W.3d at 281. "[T]he State needs `only slight evidence of the corpus delicti . . . to corroborate a confession and sustain a conviction.'" Id. (quoting State v. Driver, 634 S.W.2d 601, 606 (Tenn.Crim.App. 1981) (emphasis added)).
In State v. Ellis, 89 S.W.3d 584 (Tenn.Crim.App. 2000), the defendant was convicted of one count of rape of a child, two counts of aggravated sexual battery, and two counts of assault. The convictions arose from the defendant's relationship with the victim, a nine-year-old child whom defendant was regularly babysitting. In a statement to the police, the defendant, among other things, admitted to digital penetration of the victim, performing oral sex on the victim, and having the victim perform oral sex on him. He stated that he did not have sexual intercourse with the victim. Subsequently, on the way to the hospital to have blood drawn for a blood test, the defendant volunteered additional statements to another law enforcement officer who was transporting the defendant. The defendant again denied penile penetration of the victim but again acknowledged specifically that the victim had performed oral sex on him.
Later, in one of two letters the defendant wrote his wife, he stated, "[o]ne night when I was on the couch with a blanket over me, . . . [the victim] got under the blanket and gave me a blow job." Id. at 591. There was circumstantial evidence of old, healed tears in the victim's hymen after the investigation of the defendant began, but the testimony revealed that these tears could have been caused several years before in events unrelated to the defendant.
The defendant's conviction for rape of a child was based upon proof that the victim performed oral sex on him. Id. at 599-600. On appeal the defendant asserted that the evidence was insufficient to support his conviction for rape of a child because the only proof of the crime was the defendant's uncorroborated incriminating statements to the police and to his wife. There was without question sufficient corroboration to support the convictions for two counts of aggravated sexual battery. However, the defendant specifically argued that proof of "his ongoing sexual relationship" with the victim was not corroboration of his inculpatory statements. Id. at 600. This Court disagreed.
Relying upon State v. Rickman, 876 S.W.2d 824 (Tenn. 1994), this Court in Ellis concluded that evidence of ongoing sexual activity of the defendant and the victim was sufficient to corroborate the defendant's confessions that he had engaged in a specific act of oral sex with the victim. Ellis, 89 S.W.3d at 600. From the opinion, I glean that there was no testimony from the victim or any other eyewitness regarding the fellatio, and there was no physical or scientific evidence to independently establish that fellatio occurred.
Based upon a thorough review of Tennessee case law, I have been unable to find any opinion that unequivocally holds that one or more statement(s) by a defendant can never be used to corroborate a defendant's confession. In fact, Ricketts holds that an independent statement by a defendant which is independent of his confession can be used as part of the necessary corroboration. Independent evidence can be used to "bolster" a defendant's confession such that the case can be proven "through" the defendant's confession. Smith, 348 U.S. at 156, 75 S. Ct. at 199. Opper teaches that the most important factor to be determined is whether the corroboration supports the truthfulness of the confession. Furthermore, the corroboration need not independently establish the corpus delicti. Opper, 384 U.S. at 93, 75 S. Ct. at 164.
Appellant's statement on May 12, 2003, to the F.B.I. that he had "found [himself] struggling with a curiosity of sexual interaction with children" for approximately one and one half years was directly corroborated by Appellant's wife's testimony that she found child pornography on Appellant's computer in December 2002 and by the five images found on the computer by the F.B.I., and downloaded by Appellant in May 2003. Appellant's statement to Detective Nichols on May 15, 2003, though separate from the one he gave to the F.B.I., was essentially a continuation of the "F.B.I. statement" because it was done by Detective Nichols to obtain specific dates of criminal activity. Accordingly, I conclude that the above mentioned corroboration of the truthfulness of the May 12, 2003 "F.B.I. statement" extends to the May 15, 2003 statement to Detective Nichols. Moreover, Appellant handwrote the entire statement while alone and this, at least to an extent, weighs towards the truthfulness of the statement.
Finally, I view Appellant's detailed admission to his wife on May 12, 2003, after they had returned home from Memphis, to be sufficient corroboration of the corpus delicti in this case. I state this with a cautionary note, however. I do not conclude that in all cases where there are multiple inculpatory statements by a defendant that corroboration of one confession will always be found by the additional statement(s). However, the particular facts of the instant case, the sequence of events, and the timing and nature of the three statements allows me to conclude that Appellant's convictions should not be reversed due to lack of corroboration of his confessions. As noted by our Supreme Court in Ricketts, "[n]o universal and invariable rule can be laid down as to what would amount to proof of corpus delicti. Each case depends on its own peculiar circumstances." Ricketts, 241 S.W.2d at 605. In the "peculiar circumstances" of the instant case, I would affirm the convictions of rape of a child. In all other aspects I concur with the majority opinion.