State v. Davidson

• Decision Date: 05 August 1991
• Docket Number: No. 01-S-01-9006-CC00049,01-S-01-9006-CC00049
• Parties: STATE of Tennessee, Appellee, v. James Carlos DAVIDSON, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 316

816 S.W.2d 316

STATE of Tennessee, Appellee, v. James Carlos DAVIDSON, Defendant-Appellant.

No. 01-S-01-9006-CC00049.

Supreme Court of Tennessee,

at Nashville.

Aug. 5, 1991.

Rehearing Denied Sept. 30, 1991.

William M. Leech, Jr., Joseph A. Woodruff, Waller, Lansden, Dortch & Davis, Nashville, Robert L. Littleton, Littleton, Smith & Wolf, Dickson, for defendant-appellant.

Daniel W. Cook, Asst. Dist. Atty. Gen., Charlotte, Charles W. Burson, Atty. Gen. and Reporter, Kathy M. Principe, Asst. Atty. Gen., Nashville, for State-appellee.

OPINION

WILLIAM S. RUSSELL, Special Justice.

The sole issue in this appeal is whether or not the statute of limitations applicable to a charge of sexual abuse of a minor may be tolled under the tolling provision applicable to concealment of the crime where it is alleged that the accused used his parental influence over the child to discourage her from telling anyone, threatened to whip and physically abuse her if she told anyone, coerced her not to tell by stating that it would be injurious to her mother's health, and where the victim was alleged to be legally blind and therefore extraordinarily dependent on her family and the defendant.

HISTORY OF THE CASE

This case has not been tried, but is before this court upon the pleadings. James Carlos Davidson is charged with repeatedly sodomizing and sexually abusing his legally blind daughter over a period of years. Presentments were returned against him on November 24, 1987, charging him with one count of aggravated rape, twenty-five counts of rape, thirty-eight counts of assault with intent to commit rape or sexual battery, forty-eight counts of statutory rape and seventy-six counts of crime against nature.

The alleged victim was stipulated to have attained the age of majority in June of 1983. The presentments were therefore returned more than four years after the alleged victim attained the age of majority. The latest offense charged was said to have occurred in June of 1981, more than six years prior to the return of the presentments.

Counsel for the defendant filed a motion to dismiss the presentments on the ground that the prosecutions were barred by the applicable statute of limitations, then found in T.C.A. Section 40-2-101(c). It provided that these prosecutions "shall be commenced no later than the date the child obtains the age of majority or within four years next after the commission of the offense, whichever occurs later * * * ".

Superseding presentments were obtained by the State, and each sought to avoid the facial lateness of the prosecutions by the addition of this exact language:

"The Statute of Limitations having been tolled by said defendant concealing said criminal activities, by using his parental influence to discourage her from telling anyone, by threatening to whip and physically abuse her, if she told anyone, and further by coercing her not to tell by stating it would be injurious to her mother's health, all of which threats and coercions was further intimidating to said victim due to the fact that she was legally blind and more dependent on her family and the defendant."

The motion to dismiss was sustained by the trial court. The State's argument that the allegation of threats and coercion amounted to concealment which tolled the running of the statute of limitations under the so-called concealment exception embodied in T.C.A. Section 40-2-103 was rejected by the trial court, on the expressed basis that a crime committed against a person in a case such as this cannot be concealed.

The State appealed the dismissals to the Court of Criminal Appeals. In an opinion filed on March 1, 1990, that court reversed the judgments of the trial court and remanded the cases for trial. The opinion of the Court of Criminal Appeals says that it "agrees with the sound logic expressed by the Court of Appeals of Minnesota in State v. Danielski, 348 N.W.2d 352, 357 (1984)"; and says further, "The Danielski court's decision * * * concluded by holding that where the same parental authority that is used to accomplish criminal sexual acts against a child is used to prevent the reporting of that act, the statute of limitation does not begin to run until the child is no longer subject to that authority."

The defendant petitioned this Court to be allowed a Rule 11 appeal here, and permission was granted.

STATEMENT OF THE ISSUES

The defendant states the question presented for review as being: "Whether the statute of limitations has run."

The State defines the issue presented for review as being: "Whether the defendant's threats and coercion to the child victim constitutes concealment under the tolling provision."

We define the dispositive issue as being whether or not the presentments in the instant case are good when tested against the rule that an indictment or presentment which shows on its face that more time than the statutory limitation period has transpired since the date on which the offense was allegedly committed must contain allegations of specific facts that toll the applicable statute of limitations for a sufficient period of time to render the prosecution timely.

In this case, since it is clear that all of the charges that are involved were brought four years and five months after the alleged victim reached her majority, we must look to the wording of the presentments to judge whether or not the wording as a matter of law tolled the running of the statute for four years and five months, since the applicable statute, T.C.A. Section 40-20-101(c), requires that the prosecutions be commenced no later than the date the child obtains the age of majority (if that is more than four years after the date of the offense).

APPLICABLE TENNESSEE CASE LAW

Where there is a statute of limitations that bars prosecution of the offense charged, there should be a sufficiently definite averment of time in the indictment to show that the offense was committed within the statutory limit. State v. Shaw, 113 Tenn. 536, 82 S.W. 480 (1904). Shaw was specifically followed in State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669 (1959), wherein the rule is stated to be that where the indictment is brought after the period of limitations has expired, it must be pleaded and proved that certain specific facts toll the statute of limitations. See also State v. House, 2 Shannon's Tennessee Cases 610 (1877).

The Court of Criminal Appeals dealt with a statute of limitations question in the case of State v. Thorpe, 614 S.W.2d 60 (Tenn.Crim.App.1980) in an opinion drafted by Judge, now Justice, Daughtrey. We quote from that opinion:

The trial court ruled, correctly we think, that because no allegation had been made by the State that any affirmative act by Thorpe had taken place within the limitations period, the first two counts of the presentment should be dismissed.

[2, 3] While it is true that the statute of limitations may be tolled when an offense is of a continuing nature, Nashville & Decatur R.R. v. State, 60 Tenn. 55, 56-60 (1873), the specific facts which toll the limitation period must be pleaded and proved. State v. House, 2 Shannon's Cases 610, 611 (1877); State v. Comstock, 205 Tenn. 389, 393, 326 S.W.2d 669 (1959); 2 Wharton's Criminal Procedure Section 274, at 86 (12th ed. 1974). Facts sufficient to toll the statute of limitations were not pleaded or proved here * * *.

The same rule of law was stated and followed in the case of State v. Hix, 696 S.W.2d 22 (Tenn.Crim.App.1984). We quote:

[5-8] When an indictment is brought after the period of limitations has expired, the specific facts which toll the statute of limitations must be pleaded and proved. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669 (1959); State v. Thorpe, 614 S.W.2d 60 (Tenn.Cr.App.1980). In the instant case, both indictment 1874 and indictment 1875 are completely devoid of any allegation which might be interpreted as tolling the statute. In the absence of specific pleadings or proof as to why the statute was tolled, the child abuse convictions were barred by the statute of limitations and are therefore void. * * *.

A case closely akin to the case at bar is State v. Tidwell, 775 S.W.2d 379 (Tenn.Crim.App.1989). Tidwell was charged with thirty-four counts of criminal sexual conduct with minor victims. He filed a pretrial motion to dismiss certain counts of the presentment on the ground the offenses charged in those counts were barred by the statute of limitations. The State contended that the statute of limitations had been tolled as to each offense due to the defendant's concealment of the respective offenses. The trial court permitted the State to amend all counts of the presentment by adding this language:

"Said crime having been concealed by the aforesaid defendant, Marshall Tidwell, from date of the commission of the offense until August 16, 1986."

The Court of Criminal Appeals held that the allegations of this amendment constituted sufficient facts which, if proved, would toll the statute of limitations. In that case the amendment flatly claimed concealment for a specific time period. The appellate court wrote:

* * * T.C.A. Section 40-2-103 provides that "[n]o period, during which the party charged conceals the fact of the crime ... is included in the period of limitation". However, the State failed to establish during the trial that the defendant concealed the offense. State v. Bentley, 239 Kan. 334, 721 P.2d 227 (1986). See Sears v. State, 356 S.E.2d 72 (Ga.App.1987).

The victims were aware of the acts which constitute the offenses of which the defendant stands convicted. While the defendant asked the victims not to tell anyone about the sexual contact, the victims had ample opportunity to tell their parents, siblings, relatives and friends about the acts which constituted the offenses. One victim apparently told his fellow students about what had occurred, and the information traveled rapidly throughout the school. The defendant talked to a...