Randolph v. State

• Decision Date: 09 March 1978
• Citation: 570 S.W.2d 869
• Parties: Eddie Lee RANDOLPH, Jr., Appellant, v. STATE of Tennessee, Appellee. 570 S.W.2d 869
• Court: Tennessee Court of Criminal Appeals

Page 869

570 S.W.2d 869

Eddie Lee RANDOLPH, Jr., Appellant, v. STATE of Tennessee, Appellee.

570 S.W.2d 869

Court of Criminal Appeals of Tennessee.

March 9, 1978.

Certiorari Denied by Supreme Court Sept. 18, 1978.

Edward G. Thompson, Public Defender, A. Kemp Stallings and Ural B. Adams, Jr., Asst. Public Defenders, Memphis, for appellant.

Brooks McLemore, Jr., Atty. Gen., Robert L. Tucker, Asst. Atty. Gen., Nashville, Alan E. Glenn and Kenneth R. Roach, Asst. Dist. Attys. Gen., Memphis, for appellee.

OPINION

TATUM, Judge.

The appellant, Eddie Lee Randolph, Jr., was convicted of assault and battery upon a female over 12 years of age with intent to rape, and his punishment was fixed at not less than three years nor more than seven years in the State Penitentiary. He was also convicted of an attempt to commit a felony (crime against nature), for which his punishment was fixed at not less than one nor more than three years in the State Penitentiary. The Trial Judge ordered the penitentiary sentences to run concurrently.

The appellant assigns error testing the sufficiency of the evidence and complaining of the admission of certain evidence. The assignments are without merit.

We will summarize the facts established by the accredited evidence. Shortly before dark on 19 May 1976, the 22-year old victim and a 14-year old companion, named Armenta, were on an errand near their home in Memphis. A van driven by the appellant drove past the two girls, then backed up and stopped. DeAutrey Brown, a companion of the appellant, opened the door of the van, stood up, and pulled the two girls into the van. Although the girls resisted and protested, the appellant drove them to McKellar Park and stopped the van.

After waiting until darkness, the appellant drug and pulled the victim toward McKellar Lake. He lowered her pants and panties and attempted to insert his penis into her vagina, but was unsuccessful because of her resistance. He then made an attempt to force the victim to perform an oral sex act, but failed in this endeavor because the victim bit his penis when he placed it in her mouth. The victim was then able to break away from the appellant and she ran to the van since her companion, Armenta, was there.

When the victim reached the van, Brown grabbed her by the arm. She saw a group of men in the area, broke loose from Brown, and ran to the men. The unknown men effected a rescue and recovered five dollars ($5.00) which the appellant had taken from the victim. They forced the appellant and Brown to lie down while the girls escaped and advised the girls to call a cab. They did not detain the appellant or Brown.

When the girls were approaching their residence in the taxicab, they observed the appellant's van parked outside of a lounge near their residence. The girls obtained assistance from their parents and police, then went to the nightclub, where the appellant was identified and arrested.

Evidence was admitted to prove that while the appellant and the victim were away from the van, the appellant's companion, Brown, raped the victim's companion, Armenta. The appellant did not testify and offered no evidence.

Under his assignment attacking the sufficiency of the evidence, the appellant argues that the State failed to prove that he had criminal intent to commit either crime for which he was convicted. The element of intent may be proved by circumstantial evidence. In fact, instances are rare indeed when intent can be proved by direct evidence; it must nearly always be shown by circumstantial evidence. State v. Scates, 524 S.W.2d 929 (Tenn. 1975); Hall v. State, 490 S.W.2d 495 (Tenn. 1973). The record contains much evidence of the use of force not detailed in the above summary of facts. The appellant has failed to establish that the evidence preponderates against the jury verdicts with respect to any necessary element of either offense. We must overrule this assignment. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The appellant assigns further error:

"The Court erred in allowing in unrelated evidence of the activities of another man in the van, out of the presence of the victim and the appellant, because there was no evidence that these two men were aiders and abettors, or conspirators, as to a specific criminal intent, once the two men became separated."

The Trial Court permitted the victim's companion, Armenta, to give testimony describing the events when she was raped by Brown, while the appellant and the victim were away from the van. The Trial Judge stated that this evidence was admissible because the State had established a conspiracy between Brown and the appellant.

Evidence of any act or declaration of a conspirator during the conspiracy, and in furtherance of it, is admissible as substantive evidence against any coconspirator on trial for the commission of the target crime. The act or declaration of one conspirator, or accomplice, in the prosecution of the criminal enterprise, is considered the act of all, and is evidence against all....