Ruff v. State

Decision Date28 September 1998
Citation978 S.W.2d 95
PartiesGeorge A. RUFF, Appellant, v. STATE of Tennessee, Appellee. Billy Joe SMITH, Appellant, v. STATE of Tennessee, Appellee.
CourtTennessee Supreme Court

Chris Ralls, Maryville, for Appellant Huff.

Joseph Liddell Kirk, Knoxville, for Appellant Smith.

Timothy F. Behan, Asst. Attorney General, Michael L. Flynn, District Attorney General, Maryville, John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Marvin E. Clements, Jr., Asst. Attorney General, Nashville, David E. Crockett, District Attorney General, Johnson City, Lisa D. Nidiffer, Asst. District Attorney General, Erwin, Steven R. Finney, Asst. District Attorney General, Elizabethton, for Appellee.


BIRCH, Justice.

We granted the appellants, George Ruff and Billy Joe Smith, permission to appeal and consolidated their cases to address the validity of indictments that failed to charge a specific culpable mental state. For the reasons set forth herein, under the controlling case of State v. Hill, 954 S.W.2d 725 (Tenn.1997), we hold that the indictments are sufficient. Accordingly, the convictions resulting from these indictments are valid.

In addition to the above issue, each appellant raises a separate second issue. Ruff contends that the testimony of a Department of Human Services (DHS) investigator concerning certain statements made to her by the victim was inadmissible. We find that admission of these hearsay statements was error. However, in light of the strength of the State's proof, this error does not appear to have affirmatively affected the result of the trial.

Smith challenges the trial court's denial of a motion requesting an ex parte hearing to establish his particularized need for access to a psychiatric expert. We find no error. In consideration of our holdings on these respective issues, the judgments entered by the trial courts and sustained by the Court of Criminal Appeals are affirmed.


Because the issues before us are questions of law, our review is de novo. State v. Davis, 940 S.W.2d 558, 561 (Tenn.1997). First, Ruff contends that the conviction for aggravated sexual battery is void because the indictment failed to charge a culpable mental state. This issue was first raised by Ruff in his application for permission to appeal to the Court under Tenn. R. App. P. 11. Defenses based on defects in the indictment are usually foreclosed if not raised prior to trial; however, a court may notice at any time during the pendency of the proceedings the defense that the indictment fails to show jurisdiction or fails to charge an offense. Tenn. R.Crim. P. 12(b) and (f). Ruff asserts that the omission from the indictment of the culpable mental state deprived the trial court of "an essential jurisdictional element without which there can be no valid prosecution."

The indictment against Ruff states:

GEORGE ANTHONY RUFF, on the 27th day of March, 1991, in Blount County, Tennessee, and before the finding of this indictment, did unlawfully engage in sexual contact with [A.K.], 1 a person less than thirteen (13) years of age, in violation of Tennessee Code Annotated, Section 39-13-504, all of which is against the peace and dignity of the State of Tennessee.

The aggravated sexual battery statute, Tenn.Code Ann. § 39-13-504 (1991), does not describe a culpable mental state. It simply defines aggravated sexual battery as "unlawful sexual contact" accompanied by certain aggravating circumstances. However, the definition of "sexual contact" in Tenn.Code Ann. § 39-13-501(6) (1991) does describe the culpable mental state:

(6) "Sexual contact" includes the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification;....

Thus, to establish the offense of aggravated sexual battery, the perpetrator must have acted with intent.

In Hill, a defendant convicted of aggravated rape insisted that the omission of a culpable mental state from the indictment rendered his conviction invalid. We rejected Hill's argument and established the following rule:

for offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment which fails to allege such mental state will be sufficient to support prosecution and conviction for that offense so long as

(1) the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend, adequate basis for entry of a proper judgment, and protection from double jeopardy;

(2) the form of the indictment meets the requirements of Tenn.Code Ann. § 40-13-202; and

(3) the mental state can be logically inferred from the conduct alleged.

954 S.W.2d at 726-27.

Like the aggravated rape statute in Hill, the aggravated sexual battery statute in Ruff's case does not expressly require a culpable mental state. Rather, one must ascertain the requisite mental state by referring to the definitions in Tenn.Code Ann. § 39-13-501, found in the same chapter. The sole distinction in Hill is the fact that a different provision supplied the mental state. 2 This distinction is not pertinent here. Therefore, we find Hill completely analogous and applicable to the case under submission.

Applying the three prongs of Hill, we first find that the specific reference to the statute prohibiting aggravated sexual battery placed Ruff on sufficient notice of the offense with which he was charged. Likewise, the language of the indictment provided the trial court with ample information upon which to base a proper judgment and to protect Ruff from reprosecution for the same offense. Second, the language was clear and concise. It met the requirements of form outlined in Tenn.Code Ann. § 40-13-202 (1990). 3 Third, in Hill we determined that recklessness, knowledge, or intent may be inferred from the conduct alleged in that case--unlawful sexual penetration. Id. at 729. Similarly, we determine here that the intentional nature of aggravated sexual battery may be inferred from the conduct alleged in the indictment--unlawful sexual contact. Therefore, the indictment against Ruff clearly satisfies the requirements set forth in Hill, and the conviction based on it is valid.


Next, we address Ruff's contention that the admission of the victim's hearsay statements to the DHS investigator was plain error requiring a new trial. Juanita Flynn, an investigator for the DHS, testified as to the details of her interview with the victim on April 2, 1991. Referring to her notes, Flynn testified that the victim told her that the defendant had touched her on her private parts some twenty times. Flynn gave explicit details of some of the alleged incidents. Ruff's counsel objected twice to this testimony, first because Flynn was "testifying from her notes," and second because Flynn was describing alleged incidents of sexual abuse which had not been charged. The trial court overruled both objections.

In the Court of Criminal Appeals, Ruff challenged only the fact that Flynn used her notes to testify. A majority of the court ruled that Flynn properly referred to the notes, pursuant to Tenn. R. Evid. 803(5), in order to refresh her memory. Judge Wade dissented, finding that Flynn's testimony was inadmissible hearsay and that its admission was plainly erroneous under Tenn. R.Crim. P. 52(b). Ruff has now adopted Judge Wade's position.

In State v. Livingston, we held that "in cases where the victim is a child, neither the fact of the complaint nor the details of the complaint to a third party is admissible under the fresh-complaint doctrine." 907 S.W.2d 392, 395 (Tenn.1995). Moreover, because a prior complaint constitutes hearsay, it is not admissible as substantive evidence unless it satisfies some hearsay exception, and it is not admissible as corroborative evidence unless it satisfies the prior consistent statement rule. Id. at 395, 398. In this case, the DHS investigator related the victim's statements concerning sexual acts committed upon her by the defendant. This was hearsay not admissible under any hearsay exception. Therefore, the admission of Flynn's testimony was error.

The remaining question is whether admission of this testimony constitutes reversible error. In this case, the jury heard substantial testimony from both the victim and the victim's sister, who witnessed the specific incident for which Ruff was charged. The victim testified that in late March 1991, Ruff came into the bedroom where she was in bed with her twelve-year-old sister. He reached under the covers and touched her on her lower private parts and her breasts. When the victim's sister got out of bed and went into another room, he then got into bed with the victim and began touching her again. The victim's sister testified that she saw Ruff's hand moving under the covers on her sister. She knew his hand was underneath the victim's clothes because she could hear the panty elastic pop.

Considering this evidence and the entire record, we cannot find that the admission of the hearsay more probably than not affected the judgment or would result in prejudice to the judicial process. Tenn. R.App. P. 36(b). Nor can we find that the error affirmatively affected the result of the trial on the merits. Tenn. R.Crim. P. 52(a); Livingston, 907 S.W.2d at 399. Accordingly, in light of the strength of the State's case against Ruff, we affirm the judgment of the Court of Criminal Appeals upholding the conviction.


We move now to an analysis of the indictments against Billy Joe Smith charging aggravated kidnaping, two counts of aggravated rape, and the aiding and...

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