State v. Rhoden

• Citation: 739 S.W.2d 6
• Decision Date: 16 April 1987
• Docket Number: No. 86-263-III,86-263-III
• Parties: STATE of Tennessee, Appellee, v. Lawtis D. RHODEN, Appellant.
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 6

739 S.W.2d 6

STATE of Tennessee, Appellee, v. Lawtis D. RHODEN, Appellant.

No. 86-263-III.

Court of Criminal Appeals of Tennessee,

at Nashville.

April 16, 1987.

Rehearing Denied May 12, 1987.

Permission to Appeal Denied by

Supreme Court Oct. 5, 1987.

Dale Quillen, William C. Wilson, Nashville, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Robert Conley, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Cheryl Blackburn, Tom Thurman, Asst. Dist. Attys. Gen., Nashville, for appellee.

OPINION

JONES, Judge.

The appellant, Lawtis D. Rhoden, was convicted of rape and the use of a minor for an obscene purpose by a jury of his peers. The trial court sentenced the appellant to a term of twenty (20) years in the Department of Corrections in each case and ordered that the two sentences are to be served consecutively to each other as well as consecutively to a Florida sentence. The appellant appealed to this Court as of right after the trial court denied his motion for a new trial. Tenn.R.App.P. 3(b).

In this Court the appellant raises nineteen (19) issues. The appellant challenges (a) the sufficiency of the convicting evidence, (b) the constitutionality of T.C.A. § 39-6-1137, (c) the failure of the trial court to charge lesser included offenses, (d) the admission of evidence of other crimes, (e) the conduct of the assistant district attorney general during closing argument, (f) the ruling of the trial court limiting the cross-examination of the victim and a witness, (g) the denial of his right to confront a witness, (h) the ruling of the trial court prohibiting defense counsel from raising the issue of consent during voir dire examination and opening statement, (i) the admission of opinion evidence, (j) the competency of the child victim as a witness, (k) the admission of rebuttal evidence, (l) the admission of demonstrative evidence, (m) the failure of the trial court to preserve a record of tape recordings admitted into evidence, (n) the refusal of the office of the district attorney general to disclose the contents of taped interviews with the victim and a witness, (o) the instruction of the trial court regarding flight, (p) the failure of the trial court to provide meaningful psychiatric evaluations, and (q) the sentence imposed by the trial court.

SUFFICIENCY OF THE EVIDENCE

Since the appellant challenges the sufficiency of the convicting evidence, we will set forth the salient facts contained in the record.

The appellant instructed his girl friend, Cornelia "Connie" Widmann, to travel to Nashville, take custody of an automobile that was in storage there, and make arrangements to rent a furnished room in the Nashville area. After arriving in Nashville Ms. Widmann obtained the automobile and rented a room in the Wright household.

When the appellant discovered there was a thirteen-year-old child in the home with Ms. Widmann, he asked Ms. Widmann to inquire if the child, the victim, would be interested in being a model and having her picture taken by the appellant. The appellant talked to the victim by telephone about a photographic session. The victim was told that the pictures were to be taken for a photography class.

During the first week in December of 1984 the appellant went to Nashville, and met Ms. Widmann. They went to a local store where they purchased cameras, film and clothes to be worn by the victim. The following day Ms. Widmann went to the victim's school, obtained her release without the permission of her parents, and took the victim to a local motel where the appellant was residing. The victim took a shower, and Ms. Widmann assisted her with makeup and her hair. When the victim tried on some of the clothes purchased by the appellant, it was discovered the clothes did not fit. The appellant ordered Ms. Widmann to return to the store and exchange the clothes. She left the motel.

While Ms. Widmann was away from the room, the appellant first took pictures of the victim in her clothes. He also lifted her dress and took pictures of her. Subsequently, the appellant removed the victim's clothing except for her bra while she was on a bed. He performed cunnilingus on the victim, and attempted to insert his penis into her vagina on three separate occasions. The victim testified the appellant penetrated her on one occasion. He then took pictures while she laid on a bed and sat in a chair in an unclothed state. He placed her legs in various positions, including separating her legs so that her genitals were visible, as he took pictures. When he finished taking photographs, the victim dressed; and the appellant prepared to leave for the airport. He told the victim he would give her a computer and $500.00 if she would not tell her mother about what had transpired at the motel.

Ms. Widmann took the appellant to the airport while the victim waited in the motel room. The appellant told Ms. Widmann that he had a client who would pay a considerable sum of money to see a little girl in her underwear; and he agreed to give Ms. Widmann half of the proceeds from the sale of the photographs. Later that night the appellant called Ms. Widmann on two occasions, and he wanted to know if the victim had revealed what had occurred at the motel. He subsequently told Ms. Widmann the pictures he took of the victim constituted child pornography and it was a felony.

A medical examination of the victim revealed the presence of sperm. It also revealed recent trauma to the hymenal area inside the vagina and a hematoma. According to the doctor, there had to be some type of penetration of the labia to cause this trauma. The slides made by the doctor revealed the presence of a small amount of sperm.

When the appellant challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence adduced at trial is sufficient "to support the findings by the trier of fact of guilt beyond a reasonable doubt." Tenn.R.App.P. 13(e). In making this determination we do not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973). Braziel v. State, 529 S.W.2d 501, 505 (Tenn.Crim.App.1975). To the contrary, we are required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Cabbage, supra.

Questions concerning the credibility of witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. State v. Cabbage, supra; Braziel v. State, supra; State v. Grace, supra. In Grace our Supreme Court said: "A guilty verdict by the jury, approved by the trial judge, accredits the testimony for the State and resolves all conflicts in favor of the theory of the State." 493 S.W.2d at 476.

There is sufficient evidence contained in the record from which a rational trier of fact could conclude that the appellant is guilty of the offenses of rape and use of a minor for an obscene purpose beyond a reasonable doubt. Tenn.R.App.P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

CONSTITUTIONALITY OF STATUTE

The appellant challenges the constitutionality of the statute proscribing the use of minors for obscene purposes, T.C.A. § 39-6-1137. While the contentions of the appellant in this regard are not clear, it appears he predicates his argument on the ground the definition of "sexual conduct" is overbroad because it prohibits using a minor to pose or model in the nude.

Our review of the record reveals the appellant did not file a pre-trial motion attacking the indictment on the ground the statute was unconstitutional. The appellant raised this issue for the first time post-trial in his motion for a new trial.

In this jurisdiction "[d]efenses and objections based on defects in the indictment, presentment or information" must be raised prior to trial. Tenn.R.Crim.P. 12(b); State v. Farmer, 675 S.W.2d 212, 214 (Tenn.Crim.App.1984), [constitutionality of statute]. When an accused fails to comply with this mandate, he waives the issue. Tenn.R.Crim.P. 12(f). See State v. Farmer, supra, [constitutionality of statute]. State v. Hill, 623 S.W.2d 293 (Tenn.Crim.App.1981), [statute of limitations]. The waiver provision of Rule 12 applies to issues embracing the constitutionality of statutes as well as the constitutional rights of the accused. State v. Farmer, supra; State v. Foote, 631 S.W.2d 470, 472-473 (Tenn.Crim.App.1982), [identification issue]. Therefore, this issue is without merit.

FAILURE TO CHARGE LESSER INCLUDED OFFENSES

The appellant contends the trial court committed error of prejudicial dimensions because it failed to charge the lesser offenses included in the crime of using a minor for obscene purposes. The appellant insists the trial court should have charged the lesser included offenses of attempt to commit a felony and contributing to the delinquency of a minor. We disagree.

A court is not required to charge the jury on lesser included offenses when there is no evidence in the record to support a finding of guilt of the lesser offenses. State v. Mellons, 557 S.W.2d 497 (Tenn.1977); State v. Davis, 649 S.W.2d 12, 14 (Tenn.Crim.App.1982); State v. Lee, 618 S.W.2d 320, 323 (Tenn.Crim.App.1981). In this case "the proof clearly makes out the offense for which the defendant was convicted, and there was no credible view of the evidence under which the defendant could have been found guilty of a lesser offense." State v. Wright, 649 S.W.2d 22, 24 (Tenn.Crim.App.1983). This issue is without merit.

EVIDENCE OF OTHER CRIMES

Cornelia Widmann, the girl friend of the appellant, testified during redirect examination that the appellant forced her to have sexual intercourse with him following...