State v. Johnson

• Decision Date: 21 August 1998
• Citation: 980 S.W.2d 414
• Parties: STATE of Tennessee, Appellee, v. John Malcolm JOHNSON, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 414

980 S.W.2d 414

STATE of Tennessee, Appellee, v. John Malcolm JOHNSON, Appellant.

Court of Criminal Appeals of Tennessee,

at Jackson.

Aug. 21, 1998.

No Permission to Appeal

for to the Supreme Court.

Gary F. Antrican, District Public Defender (at Trial and on Appeal), David S. Stockton, Assistant Public Defender (at Trial and on Appeal), Somerville, Kemper B. Durand (Appeal Only), Memphis, for Appellant.

John Knox Walkup, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney General, Nashville, Elizabeth T. Rice, District Attorney General, J. Walter Freeland, Jr., Assistant District Attorney General, Somerville, for Appellee.

OPINION

RILEY, Judge.

The defendant, John Malcolm Johnson, was convicted by a Tipton County jury of one (1) count of rape of a child, and the trial court sentenced him to fifteen (15) years. On appeal, defendant presents the following issues for our review:

(1) whether the trial court erred in denying defendant's request for a continuance;

(2) whether the trial court erred in finding that the victim was competent to testify;

(3) whether defendant was denied his right to a fair trial due to the racial composition of the jury;

(4) whether the evidence was sufficient to support the jury's finding of guilt;

(5) whether defendant was denied his constitutional rights to due process of law and against double jeopardy; and

(6) whether the trial court erred in denying defendant's motion to suppress his statement given to law enforcement authorities.

After a thorough review of the record, we find no reversible error. Accordingly, the judgment of the trial court is affirmed.

FACTUAL BACKGROUND

The defendant was married to Janet Johnson, and they had three children. In the early morning hours of November 9, 1996, Janet awoke and noticed that her bedroom door was closed. Since she had not closed the door, she decided to check on her children. When she went into her daughters' bedroom, her eleven (11) year old daughter, J.J., ¹ was not there. Janet walked into the living room and turned on a light. She saw defendant lying on his back on the couch, and J.J. was sitting astride defendant. Defendant was totally nude, and his penis was partially erect. J.J. was wearing only a pajama top.

Janet took J.J. into a back bedroom, and defendant followed them. Defendant stated, "Janet, I'm sorry." He then apologized to J.J.

J.J. testified at trial that her father came into her bedroom during that particular night. He brought her into the living room and told her to take off her underwear. He was not wearing any clothes. Defendant then laid on the couch on his back and told her to lay on top of him. She further testified as follows:

Q. And do you know where your father's penis was?

A. It was in my vagina.

Q. Okay. Was it a little bit or a lot in your vagina?

A. A little bit.

....

Q. Did--When his penis was in your vagina, did it hurt you?

A. Yes, sir.

When her mother walked into the room, J.J. picked up her underwear and went back to her bedroom.

Investigator Linda Gamblin with the Covington Police Department testified that on November 11, she spoke with defendant concerning the incident. She read defendant his Miranda rights, and defendant signed a form waiving those rights. She testified that defendant did not appear to be under the influence of any intoxicant at the time of the interview. Defendant then gave a statement where he admitted that he took J.J. into the living room on the night in question, told J.J. to take off her underwear, and then told her to lay on top of him. However, in the statement, defendant denied penetrating J.J.

Defendant testified on his own behalf at trial. He stated that he had been smoking crack cocaine and drinking beer on the night of the incident. He testified that when he returned home from band practice that night, he fell asleep on the couch. He woke up, and Janet began accusing him of sexually assaulting his daughter. He testified that he could not recall what he told Investigator Gamblin on November 11 because he was under the influence of crack cocaine at the time. However, he denied penetrating his daughter, J.J. He also intimated that his wife fabricated this incident as a means to punish him for using drugs. He stated that she once told him, "[i]f I got back on crack, ... she'd make my life a living hell."

The jury returned a guilty verdict for rape of a child. Defendant now brings this appeal as of right.

UNTIMELY MOTION FOR NEW TRIAL

Initially, we must note, as the defendant concedes, that his motion for new trial was untimely filed. The judgment of conviction was entered on August 29, 1997, and the motion for new trial was filed on October 27, 1997. A motion for a new trial "shall be made ... within thirty days of the date the order of sentence is entered." Tenn. R.Crim. P. 33(b). This provision is mandatory, and the time for filing may not be extended. Tenn. R.Crim. P. 45(b); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn.Crim.App.1989). The thirty (30) day provision is jurisdictional, and an untimely motion is a nullity. State v. Martin, 940 S.W.2d at 569. Unlike the untimely filing of the notice of appeal, this Court does not have the authority to waive the untimely filing of a motion for new trial. See Tenn. R.App. P. 4(a). The defendant, therefore, relinquishes the right to argue on appeal any issues that were or should have been presented in the motion for new trial. Martin, 940 S.W.2d at 569. However, this Court, in its discretion, may also take notice of an error which affects a substantial right of the defendant where it may be necessary to do substantial justice. Tenn. R.Crim. P. 52(b); State v. Givhan, 616 S.W.2d 612, 613 (Tenn.Crim.App.1980).

A. Denial of Continuance

Defendant firstly contends that the trial court erred in denying defendant's request for a continuance due to the state's alleged discovery violations. However, this issue is waived by defendant's failure to timely file the motion for new trial. Martin, 940 S.W.2d at 569. Nevertheless, this Court has reviewed the record and concludes that the trial court did not abuse its discretion in denying defendant's request for a continuance. See State v. Hurley, 876 S.W.2d 57, 65 (Tenn.1993); State v. Goodwin, 909 S.W.2d 35, 44 (Tenn.Crim.App.1995).

B. Victim's Competency

Defendant also alleges that the trial court erred in finding that the victim, J.J., was competent to testify. This issue is also waived by the untimely motion for new trial. Martin, 940 S.W.2d at 569. Nevertheless, after a review of the victim's testimony, we find no abuse of discretion by the trial court in finding the victim competent to testify. ² See State v. Hallock, 875 S.W.2d 285, 293 (Tenn.Crim.App.1993).

C. Racial Composition of Jury

Defendant further asserts that he was denied his right to a fair trial due to the racial composition of the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This issue is waived for the failure to timely file the motion for new trial. Martin, 940 S.W.2d at 569. Furthermore, defendant concedes that no Batson challenges were made during jury selection, and the issue is also waived for this reason. See Tenn. R.App. P. 36(a).

SUFFICIENCY OF THE EVIDENCE

In his next issue, defendant challenges the sufficiency of the convicting evidence. ³ Defendant claims that there was no testimony that he penetrated the victim, save that of the victim, whom he alleges to be incompetent to testify. Therefore, he contends that no rational trier of fact could have convicted him of rape of a child.

A.

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). A jury verdict approved by the trial judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). On appeal, the state is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.Crim.App.1996). Accordingly, 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 offense beyond a reasonable doubt. Tenn. R.App. P. 13(e); 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).

B.

Rape of a child is defined as "the unlawful sexual penetration of a victim by the defendant ... if such victim is less than thirteen (13) years of age." Tenn.Code Ann. § 39-13-522(a). Sexual penetration means "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body ... into the genital or anal openings of the victim's ... body." Tenn.Code Ann. § 39-13-501(7).

C.

The eleven (11) year old victim testified that her father brought her into the living room and told her to take off her underwear. Defendant then reclined on the couch, totally nude, and told the victim to lay on top of him. He put his hands on her "behind" and then put his penis in her vagina. Furthermore, Janet Johnson's testimony corroborated the victim's testimony. She testified that she saw defendant lying nude on the couch with a partially erect penis. J.J. was sitting astride defendant and was wearing only a pajama top.

Although defendan...