State v. Milholen
| Decision Date | 03 August 1999 |
| Docket Number | 9810-CC-00316 |
| Parties | STATE OF TENNESSEE, Appellee, v. ISAAC MILHOLEN, Appellant. C.C.A.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON APRIL 1999 SESSION OPINION FILED: |
| Court | Tennessee Court of Criminal Appeals |
Chester County
(Rape of a Child, Incest)
The appellant, Isaac Milholen, referred herein as "the defendant," appeals as of right from the judgment of the Madison County Criminal Court. In November of 1997 a Madison County jury found the defendant guilty of rape of a child and incest. The trial court, at the conclusion of a sentencing hearing, imposed a sentence of twenty-three years for rape of child, and eight years, as a Range II multiple offender for incest. The sentences were to run concurrently in the Department of Correction. The defendant presents seven (7) appellate issues:
1.Whether the defendant was denied due process in violation of his Fifth Amendment right under the United States Constitution, Article 1, Section 8, in that no charge of range of punishment was provided to the jury and the jury lacked sufficient information that would have affected its verdict.
2.Whether the trial court committed error of prejudicial dimensions by failing to grant a mistrial regarding the improper testimony of the witness, Tuten, as to other occasions of sexual abuse.
3.Whether the trial court committed error of prejudicial dimensions by failing to grant a mistrial on its own motion when trial counsel brought out on cross-examination the victim had told her grandmother the defendant had raped her.
4.Whether the trial court committed error of prejudicial dimensions by admitting medical proof of Dr. Ramer because he was not sufficiently qualified as an expert on pelvic examinations of children.
5.Whether the trial court committed error of prejudicial dimensions by ignoring the jury's announcement of being unable to reach a verdict and also sua sponte asking the jury if further deliberations were warranted.
6.Whether the trial court committed error of prejudicial dimensions by failing to dismiss the defendant's convictions as the evidence is insufficient as a matter of law to sustain a conviction for the offenses of child rape and incest.
7.Whether the trial court committed error of prejudicial dimensions by failing to grant defendant's motion for a new trial.
After a review of the entire record, briefs of the parties, and the applicable law, we affirm the trial court's judgment.
PAUL G. SUMMERS, Attorney General & Reporter, R. STEPHEN JOBE, Assistant Attorney General, 425 Fifth Avenue North, Nashville, TN 37243-0493
JERRY G. WOODALL, District Attorney General, LAWRENCE E. NICOLA, Assistant District Attorney General, 225 Martin Luther King Drive, P. O. Box 2825, Jackson, TN 38302-2825
AFFIRMED
T.M.,1 age 11, testified, that in November 1996, she was 10 years old and lived with her father and stepmother in Miflin, Chester County, Tennessee. She attended East Chester Elementary School, but now lives in Henderson County with her grandmother. T.M. testified she was not in school on Friday, November 15, 1996, but played with her friend, Tina, most of the day. Her father, who worked in Jackson, called and told T.M. he was going to pick her up. When they got home, TM made some tea. Her father went into the bedroom and took a shower. TM returned to the living room and watched "Standby the Bell" on TV. While she was watching TV, her father came in the living room with a towel on. Her father put an x-rated movie in the VCR. TM went into the kitchen for more tea. When TM returned to the living room, her father came over to her while she was on the love seat. He sat down on the floor and told TM to get on the floor. When she did so, her father took her blue jeans, purple shirt, and underpants off. Her father took off the towel and got on top of TM. While on her back, her father put his privates in her vagina. He kept pushing it in and when he got off, her vagina was wet. When she got up, TM informed her father she was going to take a shower and her father wiped himself off with the towel. TM testified her father told her not to tell, or he would go to jail.
The next day, TM went to her grandmother's, Susan Daws's, home. That day TM played with her sister, Crystal. That night TM's mother, Jackie Smith, came by the house. TM testified she talked with her mother in the bedroom. TM was wearing a nightgown and told her mother what happened. TM showed her mother her vagina, and both began crying. TM returned to bed and fell asleep. That Sunday, TM did not feel like going to church, although her sister Crystal went. TM told her grandmother what happened and her grandmother called the police. That afternoon, TM, Crystal, and her grandmother went to the Sheriff's Department. There TM told a lady what had happened. On the following Monday, TM was examined by a doctor. TM acknowledged she is mad at her father, and he is the only one who had sex with her. During cross-examination, TM testified she spends every other weekend with her grandmother and denied she told her father that she wanted custody changed to her grandmother. TM did not recall attending a parent/teacher conference on the previous Friday with her father and stepmother, Serena. TM testified, that after her mother left, she did not tell her grandmother what happened, although her grandmother asked her why she was crying.
Jackie Smith, mother of TM, testified on November 16, 1996 (Saturday), she stopped by her mother's home. It was about 10:00 to 11:00 p.m.. Her daughter, TM, was crying, but refused to talk around her grandmother and others, so Ms. Smith took her daughter into the bedroom. TM raised up her nightgown and showed Ms. Smith her vagina, which was red. The next day, Ms. Smith saw the defendant, and he said "that she wasn't going to get away with this" (meaning that Ms. Smith's mother was not going to keep TM). During cross-examination, Ms. Smith testified her mother obtained custody of TM at age two, but at age eight, the defendant obtained custody. In this time span, Ms. Smith has seen TM only three times. Although she was upset, Ms. Smith testified she did not tell her mother about the conversation with TM, because she was not "thinking straight."
Jerry Tuten, Department of Children's Services, testified she interviewed TM on November 17, 1996, regarding a complaint of sexual abuse. Ms. Tuten testified she referred the case to Department of Children's Services Investigator, Bill Austin. During the interview with TM, Mrs. Susan Daws, TM's grandmother, assisted TM in making her statement by helping with dates and custody questions. Ms. Tuten testified that she was reluctant to send TM to the emergency room for an examination "due to a weekend doctor [who] may not be experienced or willing to document the abuse."
William S. Austin, Investigator for the Department of Children's Services, testified he interviewed TM on November 18, 1996. TM was referred to Dr. Warren Ramer, Jr., in Lexington, Tennessee, for an examination. Mr. Austin described TM as depressive and embarrassed.
Mrs. Susan Daws, TM's grandmother, testified she has had custody of TM since November 1996. Prior to that time, the defendant had custody. Mrs. Daws had visitation rights every other weekend. On Saturday, November 16, 1996, TM arrived and was to stay until Sunday. Mrs. Daws testified that her daughter, Jackie Smith, arrived Saturday night, while TM was in bed. TM came out of the bedroom, and both went back into the bedroom. The next morning Crystal went to Sunday School, but TM did not want to go, which was unusual. TM told her grandmother what had happened, and Mrs. Daws called the Sheriff's Department. Mrs. Daws took TM to the Sheriff's Department, where they talked to a lady. On Monday, she and TM talked to Bill Austin, and Mrs. Daws took TM to a doctor. During cross-examination, Mrs. Daws testified that when TM arrived that Saturday, she appeared normal. TM and Crystal played most of the day. Mrs. Daws denied she called her daughter, Jackie Smith, that Saturday night. Mrs. Daws testified that when she saw TM and her daughter crying, she knew something was wrong but did not question them, thinking it was personal.
Dr. Warren Ramer, Jr., family physician for twenty-seven years, testified that he had a lot of pediatric and obstetrics experience. On November 18, 1996, Dr. Ramer conducted a pelvic examination of TM at the request of the Department of Children's Services. Dr. Ramer, using an adult speculum, found TM's vaginal orifice very large, which is highly irregular in a 10-year-old. TM's hymen was dilated. Dr. Ramer believed TM had been sexually penetrated. During his examination, Dr. Ramer did not see any tears, bruises, or evidence of bleeding in the vaginal area.
On November 22, 1996, Mr. Jack Wilson, Criminal Investigator for the District Attorney General's Office, testified he interviewed the defendant at the request of the Department of Human Services. The defendant had agreed to come in and discuss the allegations. Investigator Wilson advised the defendant that he was not under arrest or in custody and under any obligation to answer any questions. Investigator Wilson advised the defendant that there might be a question about whether his daughter was pregnant. The defendant responded, "I hope she is pregnant because I had a vasectomy in 1988." The defendant denied he raped his daughter.
Mrs. Serena Milholen, wife of the defendant, testified that when she got home from work, TM wanted to go out to eat. TM was dressed to go out. Mrs. Milholen testified she and her husband, with TM, went to a parent/teacher conference, and...
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