Opinion
No. M2000-01680-CCA-R3-CD.
Filed October 12, 2001.
Appeal from the Circuit Court for Giles County; No. 9273; Stella Hargrove, Judge.
Affirmed.
Gregory D. Smith, Clarksville, Tennessee (on appeal) and Robert Stovall, Pulaski, Tennessee, (at trial) for the Appellant, James Frank Elkins, Jr.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the Appellee, State of Tennessee.
L. Terry Lafferty, Sr. J., delivered the opinion of the court, in which David G. Hayes, J., and Thomas T. Woodall, J., joined.
OPINION
In March of 1999, Detective Sharon Little, of the Shiawassee County Sheriff's Department in Michigan, contacted Michael R. Chapman, Chief Investigator for the Giles County Sheriff's Department, regarding an offense that allegedly took place in Giles County, Tennessee, in July 1998, between the victim, AJ, and the Defendant, James Frank Elkins, Jr. After obtaining AJ's tape-recorded statement from Michigan, Chief Chapman arranged for AJ to travel to Giles County in June of 1999 for an interview. The Defendant was later indicted for rape of a child. After the Defendant's arrest, Chief Chapman obtained a taped statement. During both a ride to the county jail and during the interview, Defendant denied the allegations against him. Defendant expressed concern about being alone with AJ because he and his ex-wife were in a custody battle over their son. Chief Chapman testified that AJ, AJ's mother, and Defendant's ex-wife also came to Tennessee for the interview. Also, Chief Chapman admitted that he had the ex-wife attempt to call Defendant from Michigan concerning the truthfulness of the allegation. Defendant, however, did not admit to committing any offense. Likewise, Chief Chapman asked AJ to make a similar call to Defendant, but she refused.
Names of children are not stated in the opinion, but we utilize initials. See State v. Schimpf, 782 S.W.2d 186, 188 n. 1 (Tenn.Crim.App. 1989).
The tape was played for the jury, but was not recorded in the trial transcript.
AJ testified that she lives in Owosso, Michigan. In June of 1998, at the age of 12, she came to Tennessee with her best friend, Linda Elkins, and Linda's brother, Jacob, age 5. They were driven to Tennessee by Defendant. They stayed in an apartment in Pulaski, Tennessee, until they moved into a mobile home on Clear Creek Road. The day following their arrival in Tennessee, they were sitting at the table when Defendant began talking to them about what sex was, what it felt like, and what he does with a girl. Thereafter, Defendant wrote AJ a letter which read "age didn't matter, and that he really was starting to like her and wanted her to stay in Tennessee with him." Defendant later tore up the letter and threw it away. AJ stated that Defendant tried to fondle her, but she became scared and moved away from him. On one occasion, AJ and Linda were going to sunbathe when Defendant said, "Why not get a full body tan?" Defendant told them they could not sunbathe unless they were naked. AJ refused to comply. AJ stated that Defendant would let her, Linda and fiver-year-old Jacob drink alcohol. Also, Defendant would let AJ and Linda drive his vehicle, if they would sit on his lap.
AJ testified that she and Linda initially slept together at the trailer, but Defendant eventually separated them, making AJ sleep on a mattress on the floor in Jacob's room and Linda sleep in her father's room. One evening, around midnight, AJ was asleep and felt what she thought was Linda on top of her. She repeatedly told Linda to get off of her, but received no response. As she tried to get up, Defendant told her to "shut up." AJ tried to scream and kick him off, but Defendant put his hand over her mouth and held her down. Despite her repeated attempts to defend herself, Defendant continued to hit AJ and repeatedly tried to penetrate her vagina with his penis. The Defendant told her not to tell anyone, took a shower and left. Although AJ testified that "it hurt" when Defendant tried to place his penis in her vagina, she was uncertain if penetration did, in fact, occur. AJ tried to forget the incident ever took place and further testified that she did not tell Linda immediately because she did not want to hurt her. AJ testified that she later used the phone next door to call her mother. AJ asked her mother for permission to return to Michigan with a woman named Heather. Although AJ's mother gave her permission to ride back with Heather, Defendant refused to let her leave.
During cross-examination, AJ testified that she and Linda argued but never hit each other and always made up. She stated that she had no bruises on her body prior to the incident. AJ testified that she knew Defendant's ex-wife, who occasionally stopped by their home in Michigan. AJ denied testifying in Michigan in the custody battle between Defendant and his ex-wife, but stated that she went to court to keep Jacob during the hearings. AJ acknowledged that she did not tell anyone in Tennessee or Michigan about the incident until March of 1999.
Anna Beard Whary knew the Defendant through a friend and recalled when AJ, Linda and Jacob came to Tennessee in July of 1998. Defendant and the children would occasionally use her phone. Whary remembered an incident where AJ came in her home crying and asked to use the phone to call her mother. Whary stated that she asked Defendant to go to the store to get something for her so AJ could call and speak to her mother. Whary noticed bruising on AJ's arms but AJ would not say how she received the bruises. Whary also followed AJ into the bathroom and saw bruises between AJ's knees and on her chest. When asked, AJ still refused to tell Whary what took place. Whary stated that this event occurred about two weeks before AJ went home. Whary also testified about a separate occasion, where AJ wanted to telephone her mother but Defendant would not allow her to do so. Whary stated that AJ complained of being homesick and agreed that the bruising could come from children playing.
Jannette Fay Dennis testified that she is the great aunt of AJ, but has reared the child from the time she was two days old. In July of 1998, she permitted AJ to travel to Tennessee with Linda, Jacob and Defendant. AJ returned to Michigan on July 27, 1998. AJ had previously called her and wanted to ride home with a woman named Heather. Although Dennis gave AJ permission to ride home with Heather, she did not do so. On July 26th, Dennis's daughter drove to Tennessee to get AJ. Upon their return, Dennis saw AJ taking a shower and AJ "went crazy," something she had never done before. Dennis noticed yellow bruises across her chest and asked the cause of the bruising. AJ said, "I think it's where Frank hit me." Dennis then contacted Defendant's ex-wife and threatened to have him jailed if he ever came to Michigan. Dennis testified that she first learned about the incident in March of 1999 and first met Defendant's ex-wife in March of 1999. Dennis was aware that Defendant's ex-wife was in a custody battle over Jacob and that AJ attended one of the custody hearings.
Melody Prichard testified on behalf of Defendant. She stated that she has known Defendant for several years and lived in a duplex next door to Defendant in June of 1998. She knew AJ as well. She had seen AJ at her duplex and never noticed her to appear unhappy or distressed. Prichard often observed AJ and Linda Elkins wrestling in the yard.
Penny Kimmell testified that she knew Defendant through her brother. During the summer of 1998, she saw AJ approximately ten times. She stated that she had a phone, but AJ never requested to use the phone. She never saw the child upset or crying, nor did AJ ever complain to her about anything. On occasions, she did see AJ and Linda strike one another when wrestling and horse playing.
Allan Hogue testified that he has known Defendant for thirteen years. Hogue saw AJ five to ten times and testified that she always appeared to be happy. He heard no complaints from the child nor ever witnessed her crying. He remembered seeing Linda and AJ wrestling and playing together.
Linda Elkins, age 13, daughter of Defendant, testified that she has known AJ since kindergarten and that they were best friends. In the summer of 1998, she, the Defendant, Jacob and AJ traveled to Tennessee from Michigan and stayed in Defendant's duplex. Linda denied that her father ever said anything about sex or furnished them with alcohol. She also denied that her father ordered them to sunbathe in the nude. Instead, Linda testified that she and AJ would often wrestle with one another while playing outside. In so doing, they would often strike each other, and, in one instance, she recalled hitting AJ on the leg. Linda testified that there were trailers nearby that had phones, but they never used them. According to the witness, she and AJ always slept together in a bedroom while Linda's father slept on the couch.
LEGAL ANALYSIS LESSER-INCLUDED OFFENSE CHILD ABUSE
Defendant contends that the trial court committed reversible error by not instructing the jury on the lesser-included offense of child abuse. Tenn. Code Ann. § 39-15-401(d). The indictment in this cause alleges that on July 11, 1998, Defendant did intentionally, and knowingly sexually penetrate AJ, a person less than 13 years of age, in violation of Tennessee Code Annotated § 39-13-522.
At the conclusion of the State's proof in chief, Defendant moved the court to instruct the jury as to the lesser-included offenses of aggravated sexual battery and assault as defined in Tennessee Code Annotated § 39-13-101. The trial court complied with this request. There was no request by Defendant for an instruction of child abuse as a lesser-included offense. Tenn. Code Ann. § 39-15-401(d). It has been long standing in Tennessee jurisprudence that it is the trial court's duty to instruct juries as to the law of each offense "included" in the indictment. Tenn. Code Ann. § 40-18-110 (1997). This means that "a trial court must instruct the jury on all lesser-included offenses if the evidence introduced at trial is legally sufficient to support a conviction for a lesser offense." State v. Burns, 6 S.W.3d 453, 464, (Tenn. 1999); citing State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999). This mandate to charge lesser-included offenses applies whether or not a Defendant requests such an instruction. Id.
In this case, the trial court instructed the jury, that to find Defendant guilty of rape of a child, the State must prove beyond a reasonable doubt that: (1) the Defendant had unlawful sexual penetration of the alleged victim; (2) AJ was less than 13 years of age; and (3) the Defendant acted intentionally, knowingly, or recklessly. The trial court further instructed the jury, should they find Defendant not guilty of this offense, that they were to consider the lesser-included offense of aggravated sexual battery. The jury was instructed that in order to find Defendant guilty of aggravated sexual battery, the State must prove beyond a reasonable doubt: (1) that the Defendant had unlawful sexual contact with the alleged victim in which Defendant intentionally touched the alleged victim's intimate parts, or the clothing covering the immediate area of the alleged victim's intimate parts; (2) the alleged victim was less than 13 years of age; and (3) the Defendant acted intentionally, knowingly, or recklessly. Furthermore, the trial court instructed the jury that if they found Defendant not guilty of aggravated sexual battery, they were to consider the lesser-included offense of assault. The trial court defined assault:
(1) the Defendant caused physical contact with another;
(2) that a reasonable person would regard the contact as extremely offensive or provocative; and
(3) the Defendant acted intentionally or knowingly.
Following these instructions, the jury concluded, beyond a reasonable doubt, that Defendant committed aggravated sexual battery.
A lesser-included offense is defined as an offense "necessarily included in another if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all the elements of the lesser." Id.; Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979). Our Supreme Court, in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), established a two-part test for determining when an offense is a lesser-included offense. However, in this case, child abuse is a lesser-included offense of rape of a child only because the legislature has so provided in Tenn. Code Ann. § 39-15-401(d). Tennessee Code Annotated § 39-15-401(a) defines child abuse: Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury or neglects such a child so as to adversely affect the child's health and welfare commits a Class A misdemeanor. Furthermore, subsection (d) states: "a violation of this section may be a lesser-included offense of any kind of homicide, statutory assault, or sexual offense, if the victim is a child and the evidence supports a charge under this section. In any case in which conduct violating this section also constitutes assault, the conduct may be prosecuted under this section or under § 39-13-101." Tenn. Code Ann. § 39-15-401(d) (emphasis added). In analyzing Tenn. Code Ann. § 39-15-401(a)(d), the legislature provided that one can be prosecuted for assault or child abuse under an appropriate set of facts, but not implicitly prosecuted for both offenses. In this case, Defendant's conduct was prosecuted under the lesser-included offense of assault, as opposed to the lesser-included offense of child abuse, in accordance with Tenn. Code Ann. § 39-14-401(d). The trial court instructed the jury that Class B misdemeanor assault was a lesser-included offense of rape of a child and aggravated sexual battery. Because the jury was instructed on the lesser offense of assault, the need for an instruction on child abuse was eliminated.
The evidence in this case is a classic jury determination. There is no forensic or physical evidence to corroborate AJ's allegation of this sexual offense. AJ told the jury that Defendant sexually molested her. In support of this evidence, Anna Whary testified that she remembered bruises on the child and knew AJ wanted desperately to return to Michigan. AJ's mother, Jannette Dennis, testified of her child's demeanor upon her return to Michigan and the yellow bruises she saw on her body. The child's only reason for those injuries was her explanation that "Frank hit me." The defense contradicted this evidence by having Linda Elkins, daughter of Defendant, testify that none of AJ's testimony was true. Also, defense proof advised the jury that the bruises occurred during wrestling and horseplay between the two girls. After hearing the evidence presented at trial, the jury resolved, beyond a reasonable doubt, the credibility of all witnesses in favor of the State by finding Defendant guilty of aggravated sexual battery.
We find no merit to this issue.
TENNESSEE RULES OF EVIDENCE 412
Defendant complains that he was denied the right to cross-examine AJ about her knowledge of sexual matters and where she obtained such knowledge. In a preliminary hearing, the trial court denied Defendant's motion which sought permission to cross-examine AJ about sexual matters. Defendant contends that AJ had engaged in sexual relations in January of 2000. The State contends that Defendant raised nothing more than vague allegations of sexual activity which were not supported by the evidence and further failed to comply with the mandatory provisions of Tenn. R. Evid. 412(d)(1), that motions must be filed ten (10) days prior to trial. Because the motion was filed one day prior to trial, the issue is waived and the trial court properly denied the motion. Nonetheless, we elect to address the trial court's ruling.
Prior to trial, Defendant filed a motion to offer evidence of AJ's alleged sexual behavior pursuant to Rule 412, Tenn. R. Evid. Defendant alleges that AJ had and currently has a long standing sexual relationship with another male. The motion further contends that the alleged victim committed such conduct in the state of Michigan at, before and/or after the time of the alleged incident herein. At the hearing on the motion, Linda, daughter of Defendant, testified that she and AJ were friends from kindergarten. She stated that she and AJ had come to Tennessee from Owosso, Michigan, in the summer of 1998. After AJ returned to Michigan, Linda remained in Tennessee, but eventually returned to Michigan as well. Linda still saw AJ from time to time and, on one occasion, AJ told Linda that she had sexual relations in January of 2000. The male was a minor that Linda did not know. At the conclusion of the hearing, the trial court denied the motion finding that the incident in the present case occurred over one-and-a-half years before the alleged admission by AJ of her sexual knowledge and activity.
In sexual offenses, AJ's reputation and specific instances of sexual behavior are generally inadmissible. Tenn. R. Evid. 412(c). To raise questions as to AJ's prior sexual behavior or reputation, a Defendant must comply with the mandates of Rule 412(d)(1), i.e., (i), the person must file a written motion to offer such evidence; the motion shall be filed no later than 10 days before the date on which trial is scheduled to begin . . . (ii) service shall be served on all parties, the prosecuting attorney and AJ . . . (iii) the motion shall be accompanied by a written offer of proof, describing the specific evidence and the purpose for introducing it. Subsection (4) of the Rule provides:
If the court determines that the evidence which the Defendant seeks to offer satisfies subdivision (b) or (c) and that the probative value of the evidence outweighs its unfair prejudice to AJ, the evidence shall be admissible in the proceeding to the extent an order made by the court specifies the evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.
A review of the preliminary hearing established that the trial court considered a number of pre-trial motions including the Rule 412 motion. The State did not seek to have the motion dismissed because it was untimely filed. Nonetheless, the notice provisions of Rule 412 are mandatory. See State v. Ray Vance, No. 01C01-9610-CC-00425, 1997 WL 749445 (Tenn.Crim.App. at 1997), perm. app. denied, (Tenn. 1998); quoting State v. Gussie Willis Vann, No. 03C01-9408-CR-00279, slip op. at 10 (Tenn.Crim.App. 1995). We agree with the State that it would have been proper for the trial court to have summarily dismissed the motion for failure to comply with the provisions of Rule 412. Also, consideration of this motion would be waived on appeal. Notwithstanding, the trial court afforded Defendant a hearing on the merits of the motion. We agree with the trial court's finding that the information sought by Defendant was not timely as to the alleged incident in the indictment, i.e., the alleged sexual activity occurred after the incident in the present case. The alleged incident occurred in July of 1998 and the only testimony concerning AJ's sexual behavior was her alleged relationship with a boy in Michigan in January of 2000. Moreover, this alleged information was based upon the suspect testimony of Defendant's daughter. We note that AJ was not called to testify to either confirm or deny the truthfulness or existence of such relationship. We conclude that the trial court did not error in denying the Rule 412 motion.
In conclusion, we affirm the trial court's judgment.