State v. Adkins

• Decision Date: 05 March 1990
• Docket Number: No. 78,78
• Citation: 786 S.W.2d 642
• Parties: STATE of Tennessee, Appellee, v. Kenneth ADKINS, Appellant.
• Court: Tennessee Supreme Court

Page 642

786 S.W.2d 642

STATE of Tennessee, Appellee, v. Kenneth ADKINS, Appellant.

No. 78.

Supreme Court of Tennessee at Knoxville.

March 5, 1990.

R. Wayne Culbertson, Gilley & Culbertson, P.C., Kingsport, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Janice Bossing, Asst. Atty. Gen., Nashville, R. Jerry Beck, Asst. Dist. Atty. Gen., Blountville, for appellee.

O'BRIEN, Justice.

Defendant was convicted on two (2) counts of aggravated sexual battery in the Sullivan County Criminal Court. His conviction was affirmed by the Court of Criminal Appeals and an appeal to this Court was granted.

He has raised three (3) issues here by the first of which he questions the trial court's action in overruling a motion for acquittal in light of certain comments made by the judge that the proof did not support the findings of guilt beyond a reasonable doubt by the jury.

In support of his argument defendant has excerpted from the record certain remarks made by the trial judge at the conclusion of the sentencing hearing. The judge suggested that he might have a reasonable doubt about the credibility of defendant's step-daughter who had made the charges against him. The child was about nine years of age when the incident purportedly occurred which led to Mr. Adkin's conviction. She was about eleven years old at the time of trial. The marriage between her mother and step-father had been stormy. They were in the midst of a bitterly contested divorce proceeding about the time the charges were preferred against defendant. The trial judge speculated that the mother was capable of using the child, although the child said the defendant had done the things she described. His comments consumed eight (8) pages of the record at the sentencing hearing and included his reflections on what action he might take if he were sitting as a thirteenth juror.

The comments of the trial judge seem to have been motivated by the possibility of someone having manipulated the child's testimony as well as the delay in reporting, and the timing of the charges, coinciding as it did with the filing of the divorce action. He found fault with the medical testimony on the issue of penetration and the fact that the child had cried while on the witness stand. He also expressed some concern about the prevalence of publicity about child molestation. He speculated about numerous things but concluded that a rational trier of fact could have found the defendant guilty upon the evidence if they accredited the testimony of the child. It is obvious that in his speculation he considered facts other than the credibility of the witness.

We have read this record carefully. The testimony of the child victim was straightforward and emphatic about the sexual acts committed by defendant. She described the events clearly and without hesitation after an early episode of emotional distress. There was no indication in her testimony that any part of it had been suggested to her by her mother or anyone else. A strong argument was made in reference to the child recanting the charges against defendant prior to trial and telling one or more people that they were not true. However, she explained these matters, evidently to the satisfaction of the jury, that she was either frightened or embarrassed when interviewed by these persons. Some moment was made of the fact that she did not tell her mother the sexual advances had occurred until eight or ten months after the event. However, on cross-examination she testified she had told her grandmother shortly after the incidents occurred. Her grandmother disbelieved her and did not inform her mother. This seems to us to be some corroboration of the truth of her statements.

We are satisfied that the evidence meets the requirements of the law as it exists in this State. When the suffic ency of the evidence is challenged, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Johnson, 762 S.W.2d 110, 116 (Tenn.1988); T.R.A.P. 13(e). The State is entitled not only to the strongest legitimate view of the evidence but to all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.1978).

We note that the Court of Criminal Appeals has cited an earlier decision of that court as authority for the statement that when a defendant chooses to offer proof after the denial of a motion for judgment of acquittal, there is a waiver. That of course is true. However, Tennessee Rule of Criminal Procedure 29(a) provides that if a defendant's motion for judgment of acquittal at the close of the evidence offered by the State is not granted, the defendant may offer evidence without having reserved the right. The defendant did so in this case and renewed his motion for judgment of acquittal at the close of all the evidence, as he had a right to do. Further, he made a motion for judgment of acquittal after the discharge of the jury in accordance with Tenn.R.Crim.P. 29(c) and it is the denial of this motion of which he complains. Nonetheless, we have found the foregoing issue without merit as we have stated heretofore.

Defendant submits he was entitled to a mistrial and a new trial because of the highly emotional and distraught testimony and conduct of the prosecuting witness.

Shortly after the young witness was placed on the stand she was asked to relate the circumstances of the offense and began to cry. In response to the District Attorney General's inquiries if she was okay, she said several times, "I can't" and continued to cry. A recess was requested and the jury was removed from the courtroom. After considerable discussion between court and counsel it was agreed it was between two to four minutes before the jury was sent out of the courtroom. The jury and the witness remained out of the courtroom during the course of this discussion. The court took a noon recess and reconvened at 1:15 p.m. We do not believe the behavior of the witness was so prejudicial that the defendant could not receive a fair trial. The trial court took immediate steps to remove the jury from the scene when it occurred. The granting of a mistrial is within the discretion of the trial court. A reviewing court will not disturb that action absent a finding of abuse of that discretion. State v. Freeman, 669 S.W.2d 688, 692 (Tenn.Cr.App.1983). The issue is without merit.

Defendant makes the inquiry here on whether the thirteenth juror rule should be reinstated and some guidelines established to assist the trial judge in determining whether a new trial should be granted rather than relying on the sufficiency of the evidence rule provided in T.R.A.P. 13(e).

This issue was not raised in the Court of Criminal Appeals. That court considered the matter sua sponte, strongly stating preference for the thirteenth juror rule while recognizing the duty to adhere to current case law promulgated by this Court, divesting trial courts from thirteenth juror responsibilities.

In 1978, the United States Supreme Court held in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), that principles of double jeopardy preclude a retrial of a defendant once a reviewing court has found the evidence to be legally insufficient to support his or her conviction. The holding in Burks was held to be applicable to State proceedings in Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

In response to Burks and Greene, this Court abandoned the thirteenth juror rule in criminal cases. See State v. Cabbage, supra; Overturf v. State, 571 S.W.2d 837 (Tenn.1978); Rule 13(e), T.R.A.P. In Cabbage, we indicated that the practice under the thirteenth juror rule whereby a trial judge could set aside a jury verdict upon grounds of preponderance alone and direct a retrial of the action, without entering judgment of acquittal, could no longer be followed in criminal cases. 571 S.W.2d at 836.

In State v. Johnson, 692 S.W.2d 412, 413 (Tenn.1985), this Court observed that subsequent to the decisions in Cabbage and Overturf, the United States Supreme Court clarified the holding of Burks in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211,...