Opinion
No. W2001-01303-CCA-R3-CD.
Filed March 25, 2002.
Direct Appeal from the Criminal Court for Shelby County; No. 96-13884; W. Fred Axley, Judge.
Affirmed.
Christine W. Stephens, Memphis, Tennessee, for the Appellant, Rico L. Raybon.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H. Boucek Assistant Attorney General; William L. Gibbons, District Attorney General; and William Bond, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which David H. Welles and Robert W. Wedemeyer, JJ., joined.
The Appellant, Rico L. Raybon, was convicted by a Shelby County jury of one count of rape of a child, in violation of Tennessee Code Annotated § 39-13-522 (1997), a class A felony. The trial court imposed a twenty-year sentence as a child rapist to be served in the Department of Correction. On appeal, Raybon raises the following issues for our review: (1) whether the trial court's refusal to permit the testimony of James Franklin under Tennessee Rule of Evidence 412, concerning specific prior instances of the victim's sexual behavior, was error; (2) whether the trial court erred by refusing to allow the testimony of Chaka Gray, pertaining to an alleged prior inconsistent statement made by the victim's mother; and (3) whether the trial court properly charged the jury on reasonable doubt. After review, we affirm the judgment of the trial court.
OPINION Factual Background
On April 13, 1996, the Appellant called CH, then five years old, into his bedroom. He then told CH to go wake KO, her two-year-old sister, and also bring her into his bedroom. Once both girls were inside the Appellant's bedroom, he instructed them to remove their clothing. CH testified that the Appellant then
In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the victims by their initials. See State v. Schimpf, 782 S.W.2d 186, 188 n. 1 (Tenn.Crim.App. 1989).
got on top of me and started rubbing my arms and then he stuck his penis inside my `kitty' and then when he got through he did [KO] and then he told us to get on our knees and then he held his `dingy' and stuck in and out our mouths.
The next morning, CH complained to her mother, Linda Onidas, of pain in her genitals. Upon questioning by Onidas, CH recounted the incident to her mother. Thereafter, Onidas took both girls to the Rape Crisis Center for examination. Upon examination, it was discovered that CH's hymen was torn, i.e, she had been sexually penetrated. The results of KO's examination "were within normal limits."
The Appellant was indicted on one count of child rape for the unlawful and intentional sexual penetration of CH. On August 17, 2000, he was convicted after a trial by jury, and was later sentenced to a term of twenty years. He then filed a motion for new trial, which was denied on May 16, 2001. This timely appeal followed.
ANALYSIS I. Testimony of James Franklin
The Appellant argues that the trial court "erred in not admitting the testimony of James Franklin, which would have shown that the victim told him Maurice Keys hurt her", i.e., sexually abused her, on a prior occasion; thereby, establishing that the hymeneal tear occurred before the alleged incident in the present case. Thus, he contends it was imperative that he be permitted to show other instances of the victim's sexual behavior with persons other than himself in order to prove or explain the source of the victim's injury. Tenn. R. Evid. 412(c)(4)(ii).
Rule 412 is applicable to cases involving the rape of a child. See Advisory Commission Comments [1991], Tenn. R. Evid. 412; State v. Brooks, No. 02C01-9804-CC-00116 (Tenn.Crim.App. at Jackson, Nov. 6, 1998); see also State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000).
Before evidence of specific instances of a victim's sexual behavior may be admitted at trial, the accused must file a written motion ten days prior to trial, accompanied by an offer of proof describing the specific evidence and the purpose for introducing it. Tenn. R. Evid. 412(d)(1). After notice has been given, the trial court must conduct a hearing outside the presence of the jury and the public to determine whether the evidence is admissible. Tenn. R. Evid. 412(d)(2). The trial court must decide (1) whether the evidence is relevant to the issue of source of semen, injury, disease, or knowledge of sexual matters and (2) whether the probative value outweighs the unfair prejudice to the victim. Tenn. R. Evid. 412(d)(4). "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." Tenn. R. Evid. 412(d)(4).
A trial court may excuse the ten-day requirement and allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Tenn. R. Evid. 412(d)(1)(i). At the motion for new trial hearing, the following colloquy took place:
ASSISTANT DISTRICT ATTORNEY BOND: . . . [T]he testimony of any of the witnesses that were included in the motion in limine, which were Tillis Gray, Chaka Gray, James Franklin and Maurice Keys was not such that they would rise to the level of being or meeting the requirements of Rule 412. . . . I believe that to be the reason the defense never asked for a 412 hearing in this case. . . .
THE COURT: Well, question to the defense, was that the reason that you didn't ask for a pretrial hearing?
DEFENSE COUNSEL TEMPLE: Your Honor, the reason as I was telling the Court is, I found out for the first time about it on the Saturday before the trial date was coming up . . . I had found out about the existence of Mr. Franklin and what he was going to say on that Saturday. And, in fact, did not learn it even from my client, but learned it from my client's brother.
And Mr. Franklin, when I talked to him was still even reluctant to talk to me about it then because, as I said, he had been charged with an aggravated assault for shooting Mr. Keys and was still not very interested in being involved in the case. And finally, I guess either I explained to him or won over his good faith that — because it was obviously too late to get a subpoena out ten days prior trial by the time I knew about it, so eventually got him to come in here.
And like I say, I did as soon as I knew I tried to give the state notice of it. It certainly wasn't written notice, your Honor. And we'd have to concede that. But I did give him oral notice as soon as I knew. And that is the position we're in, judge.
The State in its brief, asserts that,
defense counsel could have discovered this evidence through the exercise of due diligence. The excluded testimony would have suggested that Onidas's boyfriend, Maurice Keys, had previously sexually assaulted [CH]. This was a fact well known to defendant as he himself testified that Linda Onidas concocted this story to protect the actual perpetrator, Keys. Furthermore, defendant lived in the house with Keys when Franklin confronted and shot Keys based on allegations that Keys molested [CH]. The record demonstrates that defendant was aware of the prior allegations of sexual assault well before he was ever arrested and thus this evidence was readily available to the defense counsel through the exercise of due diligence.
We agree with the assertions of the State, and accordingly, conclude that defense counsel, through the exercise of due diligence, could have discovered the evidence of prior sexual assaults by persons other than the Appellant and any statements made in conjunction therewith in advance of the Saturday before trial. Therefore, a written motion to offer evidence of the victim's sexual behavior with persons other than the Appellant was required to have been filed no later than ten days before the date of which the trial was scheduled to begin.
The ten-day notice requirement has an underlying rationale. The injection of a Rule 412 motion within the emotional rigors of a rape trial is beset with problems. First, during the evidentiary hearing, testimony of several witnesses is typically required. A hearing prior to trial avoids interrupting a trial in progress with auxiliary inquiries which break the continuity of the jury's attention and inconveniencing jurors and witnesses. Second, the existence of the prior sexual conduct is oftentimes disputed thus requiring the State to respond. "The ten day rule is designed to provide the prosecution and the victim an opportunity to investigate the proposed proof and to contest the issue." Advisory Commission Comments [1991], Tenn. R. Evid. 412. It is to the advantage of both the prosecution and defense to know prior to trial whether certain items will or will not be admitted into evidence. Third, a hearing prior to trial ensures that the victim's privacy is not inappropriately compromised when the court assesses whether a given item is admissible under the rule. Id. "The victim's privacy is somewhat protected since the proceeding must be held outside the hearing of the public." Id.
Because no formal motion was filed, the trial court never made definitive findings, but rather, piece-meal findings were made throughout trial. The findings as such prevent this court from conducting an adequate review. We do not possess fact finding authority; our jurisdiction is appellate only. Tenn. Code Ann. § 16-5-108 (1994). Therefore, because the Appellant has failed to comply with the procedural requirements of Rule 412(d), this issue is procedurally defaulted, and we will not address the merits of the Appellant's argument.
II. Testimony of Chaka Gray
Second, the Appellant argues that the trial court "erred in not admitting the testimony of Chaka Gray, which would have shown that the victim's mother told her that the victim did not say the Defendant did it, and had said that `daddy did it.'" Specifically, the Appellant contends that he should have been permitted "to cross-examine the alleged victim as to whether she made said statement and also to cross-examine the mother of the alleged victim as to whether she made said statement to her step-sister."
Although the Appellant raises a Tennessee Rule of Evidence 412 issue in his brief, the testimony of Chaka Gray, the step-sister of the victim's mother, Linda Onidas, does not fall within the scope of Rule 412 because the statement made by the victim's mother does not relate to the sexual behavior of the victim on a prior occasion, but rather, relates to the incident currently before this court. See Tenn. R. Evid. 412(a).
The challenged testimony was inadmissable hearsay evidence. See Tenn. R. Evid. 802. The Appellant submits the trial judge should have allowed the testimony for impeachment purposes because it was a prior inconsistent statement made by the victim's mother. See Tenn. R. Evid. 613. The trial court ruled that the testimony was admissible as a prior inconsistent statement of the victim's mother if defense counsel had questioned her about the statement during her cross-examination. However, defense counsel failed to do so. Defense counsel's failure to question the victim's mother regarding the statement renders this issue meritless. See State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). Furthermore, permitting cross-examination of CH concerning the statement would have constituted evidence of inadmissible hearsay not within any exception. See Tenn. R. Evid. 613, 802.
III. Reasonable Doubt Instruction
Next, the Appellant contends that the trial court erred in its instruction to the jury because the instruction "did not adequately convey the evidentiary certainty required under the reasonable doubt standard." Specifically, he complains that "the trial judge committed reversible error by continuing to use the criticized language (Tennessee Pattern Jury Instruction 2.03(a) (4th ed.)) and not using Tennessee Pattern Jury Instruction 2.03 (6th ed.) as previously suggested by the Court of Appeals for the Western Section." This identical issue was previously rejected by this court in State v. Henning, No. 020C01-9703-CC-00126 (Tenn.Crim.App. at Jackson, Oct. 24, 1997). In rejecting this argument, the Henning court provided the following rationale:
In state criminal trials, the Due Process Clause of the Fourteenth Amendment protects the accused from conviction unless the prosecution persuades the fact-finder "beyond a reasonable doubt" of the facts necessary to establish each element of the offense charged. The "beyond a reasonable doubt standard" provides concrete substance for the presumption of innocence; "that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." However, the Constitution does not require courts to define reasonable doubt for the jury, or, if they elect to define reasonable doubt to use any particular formula or words. Indeed, the Court noted that "attempts to explain the term "reasonable doubt" do not usually result in making it any clearer to the minds of the jury."Nonetheless, a jury instruction that permits conviction on a lesser standard — by shifting the burden of proof from the prosecution to the defendant, or by suggesting that a higher degree of doubt than `reasonable doubt' is necessary for acquittal is constitutionally deficient and grounds for reversal. In determining whether the instruction is constitutionally deficient, the reviewing court must examine the charge as a whole and consider how reasonable jurors could have understood the charge as correctly conveying the concept of reasonable doubt. Accordingly, an asserted error in a reasonable doubt instruction may be innocuous or inconsequential when viewed in the context of the charge as a whole.
In the present case, the trial court instructed the jury: . . . A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all of the evidence in the case. It is not necessary that the defendant's guilt be proved beyond all possible doubt, as absolute certainty of guilt is not demanded by law to convict of any criminal charge. A reasonable doubt is just that — a doubt that is reasonable after an examination of all of the facts in the case. If you find that the State has not proven every element of the offense beyond a reasonable doubt, then you should find the defendant not guilty.
T.P.I. Crim. 2.03(a) (4th ed.).
Again, the Appellant claims that the instruction defining "reasonable doubt" is constitutionally deficient. In support of his argument, the Appellant adopts the position of one panel of this court. See State v. Denton, No. 020C01-9409-CR-00186 (Tenn.Crim.App. at Jackson, Aug. 2, 1996). The reviewing panel, in Denton, expressed concern that the pattern instruction, 2.03(a), does not adequately convey the evidentiary certainty required under the reasonable doubt standard. Denton, No. 02C01-9409-CR-00186. Specifically, the panel quoted two excerpts from the instruction, i.e., a doubt based upon reason and common sense after careful and impartial consideration of all the evidence" and "absolute certainty of the defendant's guilt is not necessary to convict him." Tennessee Pattern Instruction 2.03(a) tracks virtually identical language of pattern reasonable doubt instructions approved by a majority of the federal circuits. Moreover, the questioned language "based upon reason and common sense" and "absolute certainty is not required" has repeatedly been upheld as passing constitutional muster.
Henning, No. 020C01-9703-CC-00126 (some citations omitted).
We agree with the rationale of the Henning court, and therefore, conclude that the instruction given by the trial court did not violate the Appellant's rights under the United States or Tennessee Constitutions. This issue is without merit.
CONCLUSION
Based upon the foregoing, we find the issue regarding the testimony of James Franklin as raised by the Appellant is procedurally defaulted because of his failure to comply with Tennessee Rule of Evidence 412(d). We also conclude that no error occurred when the trial court declined to admit the testimony of Chaka Gray, or when it instructed the jury as to the standard of reasonable doubt required to convict the Appellant of child rape. Accordingly, the judgment of the Shelby County Criminal Court is affirmed.