State v. HoytState v. Hoyt
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- Before:
- Hayes
OPINION
HAYES, Judge.The appellant, Richard J. Hoyt, was convicted of two counts of aggravated rape and one count of aggravated sexual battery after a jury trial in the Circuit Court of Hardin County. 1 The trial court sentenced the appellant to twenty-five years for each aggravated rape conviction and twelve years for the aggravated sexual battery conviction. The court ordered the sentences to run consecutively, resulting in an effective sentence of sixty-two years. In this appeal as of right, the appellant raises four issues for our review. First, the appellant challenges the sufficiency of the evidence to sustain any of the three convictions. Second, the appellant contends that the trial court erred in failing to sever the three counts of the indictment. Third, the appellant argues that the individual sentences were excessive and based upon improper enhancement factors. Finally, the appellant contends that the trial court erred in ordering consecutive sentences.
After a review of the record, we reverse the judgment of the trial court.
I. Factual Background
The offenses which give rise to the appellant’s convictions are:
Count One, aggravated rape of AL 2 during the period between November 1, 1992 and February 7,1994;
Count Two, aggravated rape of RL during the period between November 1, 1992 and February 7,1994; and
Count Three, aggravated sexual battery of KB during the period between July 1,1993 and February 7,1994.
The following facts were developed as to each of the three counts:
A Count One
As to the first count of aggravated rape, AL, who was eight years old at the time of the trial, testified that she lived with her grandmother and the appellant in 1993. AL stated that on one occasion, while in the bathroom at the appellant’s home, the appellant told her to “suck [her] brother’s private” and told her brother to “suck [her] private.” AL also testified that on at least one occasion the appellant forced her to “suck his private” and that he “licked [her] private.” AL stated that the appellant told her that he would kill her mother if she told anyone.
B. Count Two
As to the second count of aggravated rape, RL, who was nine years of age at the time of the trial, testified that he also lived with his grandmother and the appellant during the 1993 school year. RL stated that the appellant made him “suck [the appellant’s] private” at times when his grandmother was not at home, and that the appellant “sucked [his] private.” RL testified that the appellant had been doing these things for several years.
C. Count Three
As to the charge of aggravated sexual battery, KB, who was eleven years old at the time of the trial, testified that in February 1993, she, her mother, and her younger sister visited the appellant and his wife to celebrate the appellant’s birthday. KB and the appellant were sitting in her mother’s van as KB, her mother, and her sister were getting ready to leave. KB testified that, as she sat in the van, the appellant put his hand to her breast area and “tickled” her, and “french kissed” her on the mouth. KB stated that on a prior occasion the appellant had “messed” with her breast while he was tickling her. KB’s mother testified that on their way home that day, KB told her what had happened. The next day, KB’s mother and KB’s aunt (AL and RL’s mother) took KB and the other children to the public welfare office, where they spoke with a lady about incidents of sexual abuse involving the appellant. Elaine Brown, an employee of the Department of Human Services, corroborated the mother’s testimony.
KB’s younger sister, who was eight years old at the time of the trial, testified that she was in the van during the incident and saw the appellant reach down KB’s shirt. According to the younger sister, as the appellant reached down KB’s shirt, he exclaimed, “[o]ops, you ain’t got a bra on.”
Lowel Morgan, a neighbor of the appellant, testified for the defense. Morgan testified that he had known the appellant for about ten months, and that he had given excess milk from his dairy cows to the appellant on several occasions. Morgan stated that he never saw anything out of the ordinary when he was at the appellant’s home, and that the appellant’s wife was usually there.
Maintaining his innocence, the appellant testified in his own defense. The appellant testified that the children were being “coached” by their parents and his ex-wife in order to obtain the appellant’s money and property. The appellant added that KB’s mother had “filed a lawsuit for $250,000” against him.
At the conclusion of the proof, the jury found the appellant guilty of all three counts. After conducting a sentencing hearing, the trial court sentenced the appellant as a Range I offender to the maximum sentences for each offense: twenty-five years for each aggravated rape conviction and twelve years for the aggravated sexual battery conviction. The trial court also ordered that the sentences be served consecutively. The appellant now appeals from the convictions and the sentences.
The appellant first challenges the sufficiency of the evidence to sustain a conviction for any of the three offenses. The appellant’s argument is threefold. First, the appellant contends that the victims were “coached to make the statements against him by his ex-wife and her daughters for financial reasons.” Second, the appellant argues that inconsistencies in the testimony of KB and her sister “indicate[s] that they were inventing the testimony about the alleged incident.” Finally, the appellant contends that the testimony of AL did not establish the element of penetration. These arguments are without merit.
A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.
State v. Tuggle,
639 S.W.2d 913, 914 (Tenn.1982). In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.
State v. Cabbage,
571 S.W.2d 832, 835 (Tenn.1978). On appeal, the State is entitled to the strongest legitimate view of the evidence and aE reasonable or legitimate inferences which may be drawn therefrom.
State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential elements of the offenses beyond a reasonable doubt.
Jackson v. Virginia,
443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
State v. Cazes,
875 S.W.2d 253, 259 (Tenn.1994);
A
We first address the appellant’s contentions that the victims were “coached,” and that inconsistencies in the testimony of KB and her sister indicate that they were inventing their testimony. The jury is the primary instrument of justice to determine the weight and credibility to be given to the testimony of the witnesses. Cabbage, 571 S.W.2d at 835. A jury verdict, supported by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the State’s theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). Thus by returning a verdict of guilty, the jury rejected the appellant’s contentions regarding the untruthfulness of the victims. We can find no reason to interfere with the jury’s finding.
B.
We next address the appellant’s contention that the testimony of AL did not establish the element of penetration under Count One. The appellant argues that AL “testified that the defendant told her to do things to private parts, but she does (sic) not testify as to any penetration by the defendant.”
Sexual penetration necessary to establish rape includes cunnilingus.
An examination of the record reveals the following testimony during the direct examination of AL:
Q. What is your private; what do you mean when you say that?
A Between my legs.
Q. He had you and your brother, you say, lick each other’s private?
A He told my brother to suck mine and me to lick my brother’s.
Q. Now, did he ever do anything to you with his private?
A. He told me to suck his private and he licked mine.
III. Severance
Prior to trial, the appellant moved the court to sever all counts of the indictment. In response to the appellant’s motion, the trial court severed Counts Four and Five for driving under the influence and driving on a revoked license but ruled that all remaining counts (One, Two and Three) would be tried jointly. 3 The appellant contends that the trial court erred in so ruling.
In reviewing the trial court’s denial of the appellant’s motion to sever under
The first prong of
To fall within the first category of “distinctive design or signature,” similar crimes committed by the defendant “are admissible to show the defendant’s modus oper-andi from which it may be inferred that the defendant probably committed the nearly identical crime for which he or she is on trial.” Id. However, the modus operandi must be so unique and distinctive as to be like a signature, i.e., it must be probative of the defendant’s identity. Hallock, 875 S.W.2d at 290. To determine whether certain crimes fit into this category, “the test is not whether there was evidence that a defendant committed both crimes, but whether there was a unique method used in committing the crimes.” Young v. State, 566 S.W.2d 895, 898 (Tenn.Crim.App.1978). E.g., Harris v. State, 189 Tenn. 635, 227 S.W.2d 8, 11 (1950).
The second category, “continuing plan or conspiracy,” involves not the similarity between the crimes, but the common goal or purpose at which they are directed. N. Cohen, Tennessee Law of Evidence, § 404.11 (2nd ed. 1990). In such circumstance, the proof sought is of a working plan, operating towards the future with such force as to make probable the crime for which the defendant is on trial. Id. (citing Wigmore on Evidence 249 (Chadbourn rev. 1979)). E.g., State v. Brown, 823 S.W.2d 576, 585 (Tenn.Crim.App.1991).
Finally, to qualify within the “same transaction category,” the crimes must occur within a single criminal episode.
Hallock,
875 S.W.2d at 290. This category allows proof of acts occurring before and after the offense at issue to be admitted to provide the trier of fact with “the full story.” N. Cohen,
Tennessee Law of Evidence,
§ 404.11 (2nd
The second prong of
Therefore, for purposes of severance under
Therefore, before two or more offenses may properly be joined under
A. Counts One and Two
In the first two counts of the indictment against the appellant, the appellant was charged with the rape of AL and RL. AL and RL are sister and brother and lived in the same household as the appellant at the time the offenses occurred. The circumstances surrounding the two offenses are similar. Both offenses involved oral penetration and occurred in the appellant’s home at times when the victims’ grandmother was not present and the appellant was the sole caretaker of the children. Both victims are around the same age.
The similarities between these offenses are sufficient to establish a distinctive design, i.e.
modus operandi,
thus establishing a common plan or scheme.
See e.g., McKnight,
900 S.W.2d at 52;
State v. Edwards,
868 S.W.2d 682 (Tenn.Crim.App.1993);
State v. Wooden,
658 S.W.2d 553 (Tenn.Crim.App.1983);
White v. State,
533 S.W.2d 735 (Tenn.Crim. App.1975). Although there are some differences between the two offenses, it is not necessary that the two crimes be identical in every detail.
Bunch v. State,
605 S.W.2d 227, 231 (Tenn.1980). Moreover, the similarities far outweigh these differences. Thus, the first prong of
In order to comply with the requirements of the second prong, the trial court
As we have previously determined, the evidence of the offense against AJL and the offense against RL involves a common plan or scheme. As such, the evidence of each offense addresses an issue relevant to the other offense and is therefore admissible in the trial of the other. However, in a matter of first impression, we hold that the joinder of these counts would unduly prejudice the appellant at trial. The “open dated” indictment (November 1992 to February 1994), in the present case, permits the State’s introduction of other unindicted sexual crimes or bad acts by the appellant in its case-in-chief. See State v. Rickman, 876 S.W.2d 824, 829 (Tenn.1994). Because there are two counts involving two different victims, evidence of multiple sexual offenses would be admissible under each count. Thus, the “taint” of such evidence introduced under one count would bolster the second joined offense and vice versa. Accordingly, we conclude that the probative value in the introduction of a common scheme is outweighed by the danger of unfair prejudice in the joinder of Counts One and Two. In so holding, we conclude that Counts One and Two must be severed under the facts presented. 6
B. Count Three
The final count of the indictment against the appellant was the aggravated sexual battery of KB. The circumstances surrounding this offense are dissimilar from the offenses in Counts One and Two. Unlike the other two victims, KB did not live in the same household as the appellant. KB was not under the “parental supervision” of the appellant as were the other two victims. Other adults were at the residence when this offense occurred. The record indicates that the dates on which the crimes against AL and RL were committed were never identified and could have occurred at any time during a sixteen month period. In contrast, the evidence establishes that the crime against KB occurred on the date of February 7, 1994. Thus, we are unable to conclude that this offense was closely connected in time to the offenses charged in Counts One and Two. Most importantly, the unlawful sexual contact alleged in Count Three consisted of the appellant fondling the breast of KB and kissing her, a pattern of sexual misconduct wholly different from that alleged in Counts One and Two.
In State v. Dies, 829 S.W.2d 706 (Tenn. Crim.App.1991), we were faced with a similar situation. In Dies, we held:
Although there are similarities in that both victims were near the same age, they were not both residing in the house; the acts occurred at least four months apart; and, the alleged sexual acts were not particularly similar. One victim related that the defendant had rubbed her “private parts” and on another occasion had “licked her panties.” The other victim testified that the defendant “started kissing her on her forehead and playing with her middle section. We do not agree that this constituted a common scheme or plan nor that the economies of the case would prohibit a severance.
In accordance with our holding in
Dies,
we conclude that the offense alleged in Count Three was not part of a common scheme or plan in conjunction with Counts One and Two. In complying with the requirements of 404(b), we also conclude that
IV. Plain Error
Before we consider the appellant’s sentencing issues, we are compelled, in the interest of judicial efficiency, to discuss issues resulting from the time frames set forth in the indictment and the proof offered at trial. The indictment charges that the appellant “during a period between November 1, 1992 and February 7,1994” committed the offense of aggravated rape against AL; that the appellant “during a period between November 1,1992 and February 7,1994” committed the offense of aggravated rape against RL; and that the appellant “during a period of time between July 1, 1993 and February 7, 1994” committed the offense of aggravated sexual battery against KB.
Moreover, the testimony offered at trial did not establish any particular date or event, but revealed that each of the offenses took place more than once within the indicted period of time. AL stated that, on most occasions, the appellant performed oral sex on her, and he made her perform oral sex on him. AL testified that “[o]ne time [the appellant] did it in my grandma’s bathroom. And the rest of the time he did it in my cousin’s room.” However, AL testified that on one occasion the appellant made her and RL perform oral sex on each other. This event occurred in the bathroom. RL testified that when his grandmother was not home, the appellant would “make me suck his private.” RL stated that these acts occurred “in the bathroom and in his bedroom.” Additionally, RL indicated that the appellant had committed these acts over a period of years. KB testified only as to one other incident involving the appellant. She stated that the touching “happened in February and then it happened one other time.” At trial, KB could not remember exactly when the other incident occurred, but she testified that both offenses involved “messing with her breast.” KB’s mother testified that KB stated, “Mom this ain’t the first time its happened.” 7
The general rule is that this court does not consider issues that are not raised in the trial court, however, plain error is a proper consideration for an appellate court whether properly assigned or not.
State v. Ogle,
666 S.W.2d 58, 60 (Tenn.1984);
see also State v. Clabo,
905 S.W.2d 197 (Tenn.Crim. App. at Knoxville, 1995). Moreover,
A Plain Error Review: Election of Offenses
The courts of this state have consistently held that when evidence suggests that a defendant has committed multiple sex crimes against a victim, and the crimes are charged in a single count, the court
must
require the State to elect the particular offense for which a conviction is sought.
State v. Shelton,
851 S.W.2d 134, 136 (Tenn.1993);
State v. Brown,
762 S.W.2d 135, 137 (Tenn. 1988);
Burlison v. State,
501 S.W.2d 801, 804
[f]irst, 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.
Burlison, 501 S.W.2d at 803.
In this ease, it is clear that although the indictment charged the appellant with one distinct sexual offense against each victim, the evidence suggested multiple offenses against each victim. At trial, each victim described numerous occasions on which the appellant committed unlawful acts. Under these circumstances, the court should have required the State to elect one of these incidents to rely upon for a conviction. The court’s failure to do so abridged the appellant’s constitutional right to a unanimous jury verdict, and therefore, also mandates a reversal of the appellant’s conviction.
B. Plain Error Review: 404(b): Prior Bad Acts
Tennessee recognizes a narrow rule relating to the admissibility of evidence of other sex crimes. This rule admits prior sex crimes into evidence when an indictment is not time specific, and when the evidence relates to sex crimes that allegedly occurred during the time charged in the indictment.
State v. Rickman,
876 S.W.2d 824, 829 (Tenn. 1994);
see also, State v. Shelton,
851 S.W.2d 134, 136 (Tenn.1993);
State v. Brown,
762 S.W.2d 135, 137 (Tenn.1988). Unlike evidence of prior crimes excluded by
The introduction of other incidents of sexual crimes occurring
within
the indicted period requires an election of offenses; likewise, the introduction of other sexual crimes
outside
the indicted period or in a “date specific” indictment requires compliance with
V. Sentencing Issues
Although we need not address the appellant’s sentencing issues as we have determined that this case must be reversed and remanded, we elect to address errors in the sentencing court’s application of enhancement factors for the purpose of retrial.
A. Application of Enhancement Factors
Review, by this court, of the length, range, or manner of service of a sentence is
de novo
with a presumption that the determination made by the trial court is correct.
At the sentencing hearing, the court sentenced the appellant to the maximum penalty for each offense, ordering all offenses to run consecutively. The sentencing court found no mitigating factors, but found five enhancement factors. The court found that the evidence established that: the appellant has a “prior history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range,”
It is a well established principle that an enhancement factor may not be used to increase a sentence within the appropriate range unless the factor is established by the evidence. State v. Melvin, 913 S.W.2d 195 (Tenn.Crim.App. at Nashville, 1995); see also State v. Raines, 882 S.W.2d 376, 385-85 (Tenn.Crim.App.1994); State v. Brown, 871 S.W.2d 492, 495 (Tenn.Crim.App.1993). In the ease before us, the record does not support the use of enhancement factors (3), (6), and (7).
There is little question that rape is a serious offense which is injurious to both the body and mind of the victim. Consequently, the legislature saw fit to enhance the punishment of the crime of rape when a child is involved.
State v. Embry,
915 S.W.2d 451 (Tenn.Crim.App. at Knoxville, 1995). As the legislature has already enhanced the punishment for such offenses, in order to apply enhancement factor (6) in aggravated rape cases, the State must show that the injuries sustained by the victims in this case were greater than those which ordinarily result from this serious offense.
Melvin,
913
The sentencing court also applied enhancement factor (7) providing for enhancement when the offense was committed to satisfy the defendant’s desire for pleasure.
When determining the length of a sentence, the court must presume that the minimum sentence within the range is applicable.
Due to the elimination of three enhancement factors and the weight afforded the remaining factors, we conclude that modification of the appellant’s sentences are necessary. Although academic at this point, but for purposes of retrial, we would impose sentences of twenty years for each of the aggravated rape convictions and a ten year sentence for the aggravated sexual battery conviction.
Additionally, the appellant contends that consecutive sentencing was not proper in this case. We disagree. The record reflects that the trial court properly applied consecutive sentences under
For the reasons stated herein, we reverse the appellant’s convictions and remand this case for retrials consistent with this opinion.
PEAY, and BARKER, JJ., concur.
Notes
. The appellant also pled guilty to driving under the influence and driving on a revoked license. These convictions are not at issue in this appeal.
. Consistent with the policy of this court, we will withhold the identity of young children involved in sexual abuse cases, identifying them only by their initials. See State v. Schimpf, 782 S.W.2d 186, note 1 (Tenn.Crim.App.1989).
. At the hearing on the appellant‘s motion for severance, the appellant argued that Counts One, Two, and Three involved three different victims, occurred at different times, and would be highly prejudicial to the appellant if presented in the same trial. The appellant also contended that the facts of one count would not be admissible in the trials of the others. The State responded that Counts One, Two, and Three all involved family members of the appellant, and that they involved “essentially the same period of time.” In summarily ordering the three counts to be tried jointly, the trial court offered no explanation for its ruling.
. See State v. McKnight, 900 S.W.2d 36, 51 (Tenn.Crim.App.1994) (“The distinctive design in the commission of a series of crimes may serve as the basis for either admitting evidence of other crimes or having consolidated trials.”). Cf. Hallock, 875 S.W.2d at 292 (“|T|he mere existence of a common scheme or plan is not a proper justification for admitting evidence of other crimes.”)
. Although a hearing was held as to the appellant‘s motion to sever, we find that the hearing complied, minimally at best, with
. We note that this holding does not reflect that the same result would necessarily occur in a “date specific” indictment.
. The trial court correctly admitted this statement as corroborative testimony pursuant to the “fresh complaint doctrine.” However, we find it necessary to note that, upon retrial, this statement will not be admissible as our supreme court recently abandoned the “fresh complaint doctrine” as to child victims. See State v. Livingston, 907 S.W.2d 392 (Tenn.1995). The supreme court in Livingston reasoned that “unlike the presumption regarding adult victims, juries do not necessarily presume that children fabricate, nor do they presume that a child will complain immediately,” therefore, “[t]he historic premises which supported our retention of the rule in adult victim cases simply do not support the application of the doctrine in child victim cases.” Id.
. We note that the record indicates that the appellant never objected at any time to the admissibility of such evidence.
. The record indicates that neither the State nor the appellant offered any evidence at the sentenc-mg hearing other than the trial record and the pre-sentence report.
. We note that at, the sentencing heating, the State did not request nor did they argue for application of enhancement factor (6).
.
a defendant is convicted of two or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circula-stances arising from the relationship between the defendant and the victim or victims . . .
In the present case, the fact that the appellant was the grandfather of the victims and the fact that the abuse occurred over an extended period of time serve as adequate aggravating factors to impose consecutive sentences.