State v. Hoyt

• Decision Date: 13 December 1995
• Citation: 928 S.W.2d 935
• Parties: STATE of Tennessee, Appellee, v. Richard J. HOYT, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 935

928 S.W.2d 935

STATE of Tennessee, Appellee, v. Richard J. HOYT, Appellant.

Court of Criminal Appeals of Tennessee at Jackson.

Dec. 13, 1995.

No Permission to Appeal Applied

for to the Supreme Court.

Richard W. DeBerry, Asst. District Public Defender, Camden, for Appellant.

Charles W. Burson, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Criminal Justice Division, Nashville, G. Robert Radford, District Attorney General, John Overton, Asst. District Attorney General, Savannah, for Appellee.

OPINION

HAYES, Judge.

The appellant, Richard J. Hoyt, was convicted of two counts of aggravated rape and one count of aggravated sexual battery after a jury trial in the Circuit Court of Hardin County. ¹ The trial court sentenced the appellant to twenty-five years for each aggravated rape conviction and twelve years for the aggravated sexual battery conviction. The court ordered the sentences to run consecutively, resulting in an effective sentence of sixty-two years. In this appeal as of right, the appellant raises four issues for our review. First, the appellant challenges the sufficiency of the evidence to sustain any of the three convictions. Second, the appellant contends that the trial court erred in failing to sever the three counts of the indictment. Third, the appellant argues that the individual sentences were excessive and based upon improper enhancement factors. Finally, the appellant contends that the trial court erred in ordering consecutive sentences.

After a review of the record, we reverse the judgment of the trial court.

I. Factual Background

The offenses which give rise to the appellant's convictions are:

Count One, aggravated rape of AL ² during the period between November 1, 1992 and February 7, 1994;

Count Two, aggravated rape of RL during the period between November 1, 1992 and February 7, 1994; and

Count Three, aggravated sexual battery of KB during the period between July 1, 1993 and February 7, 1994.

On the dates these offenses occurred, the appellant was married to the victims' grandmother. All three of the victims were minors under the age of thirteen. Two of the victims, AL and RL, who are brother and sister and are the grandchildren of the appellant, lived with the appellant and his wife in Hardin County. The other victim, KB, the stepgrandchild of the appellant, lived with her mother in Lewis County.

The following facts were developed as to each of the three counts:

A. Count One

As to the first count of aggravated rape, AL, who was eight years old at the time of the trial, testified that she lived with her grandmother and the appellant in 1993. AL stated that on one occasion, while in the bathroom at the appellant's home, the appellant told her to "suck [her] brother's private" and told her brother to "suck [her] private." AL also testified that on at least one occasion the appellant forced her to "suck his private" and that he "licked [her] private." AL stated that the appellant told her that he would kill her mother if she told anyone.

B. Count Two

As to the second count of aggravated rape, RL, who was nine years of age at the time of the trial, testified that he also lived with his grandmother and the appellant during the 1993 school year. RL stated that the appellant made him "suck [the appellant's] private" at times when his grandmother was not at home, and that the appellant "sucked [his] private." RL testified that the appellant had been doing these things for several years.

C. Count Three

As to the charge of aggravated sexual battery, KB, who was eleven years old at the time of the trial, testified that in February 1993, she, her mother, and her younger sister visited the appellant and his wife to celebrate the appellant's birthday. KB and the appellant were sitting in her mother's van as KB, her mother, and her sister were getting ready to leave. KB testified that, as she sat in the van, the appellant put his hand to her breast area and "tickled" her, and "french kissed" her on the mouth. KB stated that on a prior occasion the appellant had "messed" with her breast while he was tickling her. KB's mother testified that on their way home that day, KB told her what had happened. The next day, KB's mother and KB's aunt (AL and RL's mother) took KB and the other children to the public welfare office, where they spoke with a lady about incidents of sexual abuse involving the appellant. Elaine Brown, an employee of the Department of Human Services, corroborated the mother's testimony.

KB's younger sister, who was eight years old at the time of the trial, testified that she was in the van during the incident and saw the appellant reach down KB's shirt. According to the younger sister, as the appellant reached down KB's shirt, he exclaimed, "[o]ops, you ain't got a bra on."

Lowel Morgan, a neighbor of the appellant, testified for the defense. Morgan testified that he had known the appellant for about ten months, and that he had given excess milk from his dairy cows to the appellant on several occasions. Morgan stated that he never saw anything out of the ordinary when he was at the appellant's home, and that the appellant's wife was usually there.

Maintaining his innocence, the appellant testified in his own defense. The appellant testified that the children were being "coached" by their parents and his ex-wife in order to obtain the appellant's money and property. The appellant added that KB's mother had "filed a lawsuit for $250,000" against him.

At the conclusion of the proof, the jury found the appellant guilty of all three counts. After conducting a sentencing hearing, the trial court sentenced the appellant as a Range I offender to the maximum sentences for each offense: twenty-five years for each aggravated rape conviction and twelve years for the aggravated sexual battery conviction. The trial court also ordered that the sentences be served consecutively. The appellant now appeals from the convictions and the sentences.

II. Sufficiency of the Evidence

The appellant first challenges the sufficiency of the evidence to sustain a conviction for any of the three offenses. The appellant's argument is threefold. First, the appellant contends that the victims were "coached to make the statements against him by his ex-wife and her daughters for financial reasons." Second, the appellant argues that inconsistencies in the testimony of KB and her sister "indicate[s] that they were inventing the testimony about the alleged incident." Finally, the appellant contends that the testimony of AL did not establish the element of penetration. These arguments are without merit.

A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). It is the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994); Tenn.R.App.P. 13(e).

A.

We first address the appellant's contentions that the victims were "coached," and that inconsistencies in the testimony of KB and her sister indicate that they were inventing their testimony. The jury is the primary instrument of justice to determine the weight and credibility to be given to the testimony of the witnesses. Cabbage, 571 S.W.2d at 835. A jury verdict, supported by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the State's theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). Thus by returning a verdict of guilty, the jury rejected the appellant's contentions regarding the untruthfulness of the victims. We can find no reason to interfere with the jury's finding.

B.

We next address the appellant's contention that the testimony of AL did not establish the element of penetration under Count One. The appellant argues that AL "testified that the defendant told her to do things to private parts, but she does (sic) not testify as to any penetration by the defendant."

Sexual penetration necessary to establish rape includes cunnilingus. Tenn.Code Ann. § 39-13-501(7) (1991). In the instant case, the trial court defined cunnilingus to the jury as "an act of sexual perversion committed by placing the mouth or tongue on or in the vagina of another." This definition is virtually identical to the definition of cunnilingus that has been approved by this court. See State v. Michael Warren Evans, No 02C01-9306-CC-00124, 1994 WL 59452 (Tenn.Crim.App. at Jackson, March 2, 1994), perm. to appeal denied, (Tenn.1994); State v. Karl E. Vanderbilt, No. 70, 1992 WL 69650 (Tenn.Crim.App. at Jackson, April 8, 1992), perm. to appeal denied, (Tenn.1992) (defining "cunnilingus" as "a sexual activity involving oral contact with the female genitals").

An examination of the record reveals the following testimony during the direct examination of AL:

Q. What is your private; what do you mean when you say that?

A. Between my legs.

Q. He had you and your brother, you say, lick each other's private?

A. He told my brother to suck mine and me to lick my brother's.

Q. Now, did he ever do anything to you with his private?

A. He told me to suck his private and he licked mine.

This testimony clearly...