State v. Banes

• Court: Tennessee Court of Criminal Appeals
• Writing for the Court: WHITE
• Citation: State v. Banes, 874 S.W.2d 73 (Tenn. Crim. App. 1993)
• Decision Date: 20 October 1993
• Parties: STATE of Tennessee, Appellee, v. Tyler Wayne BANES, Appellant.

Page 73

874 S.W.2d 73

STATE of Tennessee, Appellee, v. Tyler Wayne BANES, Appellant.

Court of Criminal Appeals of Tennessee at Jackson.

Oct. 20, 1993.

Permission to Appeal Denied by

Supreme Court Feb. 28, 1994.

Rayna Hardee Bomar, Hardee & Martin, P.A., Jackson, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Ellen H. Pollack, Counsel for the State, Nashville, Jerry Woodall, Dist. Atty. Gen., Don Allen, Asst. Dist. Atty., Jackson, for appellee.

OPINION

WHITE, Judge.

This appeal is as of right from a judgment entered by the Madison County Criminal Court finding the appellant guilty of aggravated rape and aggravated sexual battery. On appeal, the appellant challenges the sufficiency of the evidence, the introduction of a letter written by the appellant, and the separate convictions for aggravated sexual battery and aggravated rape. We affirm the aggravated rape conviction but modify to dismiss the aggravated sexual battery conviction.

The victim ¹, age eleven, was alone in her mother's home in August or September 1990 when the appellant, her mother's cousin, came to visit. The appellant was a frequent visitor in the home who the victim had known since about the third grade. When the appellant, age twenty-seven years, came to visit on this occasion, he asked the victim if she wanted to have sex with him. She agreed although she had not had sex with appellant previously. The appellant told the victim he had "nutted" in her and she should not tell anyone because he could go to jail. He also told her that if she had a problem to tell people that she had sex with a young boy.

In April 1991, the victim's mother took her to the doctor because her feet began to swell. The doctor examined her and found that she had venereal diseases and was seven months pregnant. The victim told her mother and the doctor that she had sexual relations with the appellant. ² After a brief investigation, appellant was arrested and charged.

After the victim delivered her baby in June 1991, the appellant called her from jail to suggest that she claim that someone else was the baby's father. The appellant told the victim that he wanted to get out of jail so that he could help with the baby. He suggested that if she married him "he would get out of jail." From July 1991 until the day before trial, the appellant's mother cared for and reared the baby. The victim wrote letters and birthday cards to the appellant professing her love for him after their sexual relations.

On cross-examination, the victim admitted that she had been untruthful about her sexual relations in her statements to the Department of Human Services, the detective in charge of the case, the doctor and nurse, and the appellant. In January 1992, when a blood test revealed that the appellant was not the father of the child, the victim told the investigators about her sexual relations with others. Even after her revelation, the appellant's mother continued to take care of the child.

The victim's mother and family physician testified and corroborated much of the victim's testimony. The state also offered the testimony of Richard Lee Grinalds, a former assistant district attorney in charge of prosecuting the appellant's case, who identified a letter he had received from the appellant. In the letter, the appellant confessed to having sex with the victim but requested that the assistant district attorney dismiss or modify the charges because of appellant's pre-existing sentence and his desire to take care of the baby. Appellant admitted writing the letter but claimed he was coerced by an inmate named James Carter. The warden and the former assistant district attorney acknowledged that James Carter might have been incarcerated at the penal farm with the appellant during the time that the letter was written. ³

At the close of the state's proof, the court dismissed count three of the indictment which charged the appellant with aggravated child abuse. The defense offered, by stipulation, the results of a blood test that excluded the appellant as the father of the child. Additionally, the appellant called Detective Golden who verified that the victim had been untruthful about her prior sexual activity during the investigation. The appellant testified, denied having sexual relations with the victim, and claimed to have learned of the accusation when questioned while incarcerated. On cross-examination, the appellant admitted numerous previous felony convictions.

Based on this evidence, the court denied the appellant's motion for judgment of acquittal and submitted counts one and two of the indictment to the jury for deliberation. Count one of the indictment charged that the appellant

on or about the ___ day of September, 1990, in Madison County, Tennessee, ... did unlawfully sexually penetrate *, a person less than thirteen years (13) years of age, in violation of T.C.A. 39-13-502.

Count two of the indictment charged that the appellant

on the ___ day of September, 1990, in Madison County, Tennessee, ... did unlawfully engage in sexual contact with *, a person less than thirteen (13) years of age, in violation of T.C.A. 39-13-504.

The judge instructed the jury on the essential elements of both aggravated rape and aggravated sexual battery. He did not give any jury instructions on lesser included offenses or instruct the jury as to the effect of a guilty verdict on the aggravated rape charge. Instead, he gave the following instructions:

The crime charged in each count of the Indictment is a separate and distinct offense. You must decide each charge separately on the evidence and the law applicable to it. The defendant may be convicted or he may be acquitted on any or all of the offenses charged. Your finding as to each crime must be stated in your verdict.

The judge then submitted to the jury a verdict form which required a finding on each of the offenses in the indictment. Neither attorney objected to the court's charge or verdict form.

After deliberations, the jury announced guilty verdicts on both charges. At sentencing, the state argued for separate concurrent sentences on the two offenses. The court thoroughly addressed each of the enhancement and mitigating factors raised by the state and defense and sentenced the appellant to concurrent sentences of twenty-two years on aggravated rape and ten years on aggravated sexual battery. In addition, the court made the following statement:

They are the same for the same incident, so they must be a concurrent sentence. They really should merge into one sentence. I'm not really sure how to handle this, so I'm going to let both convictions stand, but it is one offense, and the reason for that is--I run into this quite often when you have a situation like this. It's the same like when you've got a sale and delivery of cocaine, a two-count Indictment. You don't know where the case is going on appeal and if I were to dismiss one, the Appellate Court might turn around and say I dismissed the one that the State had a legal case on and let him stand convicted on the one that they didn't have a legal case on. So I'll let them both stand. Somewhere down the line, these ought to be merged into one offense, but I'm not going to do it now for the reason that I just stated. You don't know what route it's going to take on Appellate review, so both will stand. The sentences will be concurrent.

Subsequently, in the motion for new trial hearing, the appellant argued that the aggravated sexual battery conviction should have been dismissed since the testimony did not include evidence of any sexual contact other than the actual act of sexual intercourse. The court and the assistant district attorney had the following discussion:

THE COURT: I wonder about the merger of the aggravated--was it aggravated sexual battery?

. . . . .

THE COURT: Of course, I gave concurrent sentences; right?

MR. ALLEN: Yes, sir.

THE COURT: Refresh my memory. Were we just relying upon one incident?

MR. ALLEN: Your Honor, I believe this was just one incident. If I recall, I think the proof was pretty clear that he had asked her about having sex and she agreed to it--

THE COURT: She agreed to it, yeah.

MR. ALLEN: --and there was just one sexual act that actually took place. I believe the Court at sentencing made the statement about--well, the fact that the sexual battery took place and then thereafter the intercourse took place, that the Court was going to treat that as one incident and run these sentences concurrently--

THE COURT: Right.

MR. ALLEN: --but the Court felt that both convictions should stand because of the separate and distinct offenses. Of course, we didn't argue for consecutive sentences. I don't think that would be proper under the circumstances.

THE COURT: You know, this presents a problem that you run into in a situation like this. I never have quite known how to handle it. He was guilty of both.

MR. ALLEN: Yes, sir.

THE COURT: As a matter of fact, everybody that commits a rape is guilty of sexual battery; right?

MR. ALLEN: Yes, sir.

THE COURT: And suppose that it went up to the Appellate Court, and maybe not this case, probably not this case, but some other case, and they find that the evidence supported the aggravated sexual battery, but not the aggravated rape. There was not sufficient support for the penetration part; right?

MR. ALLEN: Right.

THE COURT: Well, if I just dismissed one case, suppose I dismissed the aggravated sexual battery, where would you be? No conviction. So it could present a problem if I go dismissing something and, you know, it's almost--of course, it could be a lessor [sic] included offense.

The other side of the coin is, I don't think it's fair to a person who has a record that it shows an aggravated rape and an aggravated sexual battery. It makes it two crimes. I mean, you know, if you got into an habitual criminal statute or something like that, it could work unfairly.

So I don't know what to do with it. I...