State v. Schimpf

• Decision Date: 23 March 1989
• Citation: 782 S.W.2d 186
• Parties: STATE of Tennessee, Appellee, v. Fredrick SCHIMPF, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 186

782 S.W.2d 186

STATE of Tennessee, Appellee, v. Fredrick SCHIMPF, Appellant.

Court of Criminal Appeals of Tennessee At Knoxville.

March 23, 1989.

Permission to Appeal Denied by

Supreme Court Jan. 2, 1990.

Charles W. Burson, Atty. Gen., James W. Milam, Asst. Atty. Gen., Berkley Bell, Dist. Atty. Gen., and Sharon Selby, Asst. Dist. Atty. Gen., for appellee.

Robert W. Ritchie, Charles W.B. Fels, and David M. Eldridge, Knoxville, for appellant.

OPINION

BIRCH, Judge.

Fredrick Schimpf, the defendant, appeals by right from a conviction of aggravated sexual battery. He is serving a Range II twenty-year sentence.

Defendant's more significant issues include an attack upon the constitutionality of the statute under which he was convicted, and the insistence that the trial judge erroneously admitted certain expert testimony. In eight additional issues, the defendant contends that

1. The presentment fails to provide sufficient information for the preparation of a defense;

2. The presentment should have been dismissed for failure of the Department of Human Services to videotape an interview with the victim;

3. The trial judge should have allowed defendant to inspect a witness' investigative file;

4. The trial judge erroneously admitted certain statements as "fresh complaints";

5. The trial judge erroneously admitted evidence of certain other offenses;

6. The state's summation was improper and should have entitled him to a mistrial;

7. The trial judge should have instructed the jury of the necessity that the victim's testimony be corroborated;

and

8. The sentencing structure is unconstitutional as applied to him.

We have carefully considered each of the defendant's issues; we have determined that the issue concerning the admission of expert testimony is meritorious, with the result that the defendant must have a new trial. Because of this disposition, we will limit our discussion of remaining issues to those which we think are intrinsic or likely to reoccur upon retrial. As to matters involving discovery, the material remains available, and the trial judge will then have another opportunity to consider these discovery matters should request be made. We have also left the issues involving evidence of other offenses, fresh complaint, argument, and sentencing undiscussed because we think that they are not likely to reoccur.

THE FACTS

The defendant does not contest the sufficiency of the convicting evidence, except insofar as the sufficiency question inheres in his corroboration issue. It is, nevertheless, helpful that we summarize the facts as of record which we have found necessary for our proper review.

While the five-year-old victim, "T.," ¹ and his cousin, "G.," were playing hide-and-seek in their grandmother's basement, Schimpf entered the room, laid on the couch, and showed the victim his "private." Schimpf then took the victim behind the bar and performed fellatio upon him. Schimpf told him not to tell anyone what had occurred.

"G.," still playing hide-and-seek, was hiding under a table; defendant was unaware of his presence in the room.

"G." testified at trial that from where he was hiding, he could not see defendant and "T."; however, he heard them talking and heard "T." giggle.

After defendant left the room, "T." told "G." that Schimpf had "sucked my private" and not to tell anyone.

The victim's mother received a phone call from her sister-in-law informing her that the victim had said "something to his cousin ["L."] about kissing down there." When the mother asked the victim about the statement, he began crying and stated, "Mama, Rick [Schimpf] told me not to tell."

The victim's mother reported her suspicion that Schimpf had sexual contact with her son to the sheriff's department. A child protection investigative team was sent to the home, where they interviewed "T." outside of his mother's presence. The interview was taped with audio equipment. During this interview, "T." used anatomically-correct dolls to show what happened. After the interview, the team advised the mother to have the victim evaluated by a child psychologist. She took the victim to see Dr. Abraham Brietstein, whose testimony we will detail as we resolve the issue of its admissibility.

The victim related three incidents ² wherein the defendant had sexually abused him, first to his mother, and then to the members of the child protection team. At trial, he used anatomically-accurate dolls to explain his testimony.

The defendant denied under oath that he had sexually abused the victim. He presented witnesses who had been with the defendant and the victim together. They testified that they observed no conduct of a sexual nature. The defendant also presented proof of good character.

Ralph Charles Underwager, Ph.D., a clinical psychologist who has been involved in the study of child sexual abuse for many years, testified on defendant's behalf. He pointed out the fundamental disagreement which he said exists among those in the scientific community concerning Dr. Brietstein's courtroom application of the child sexual abuse syndrome.

UNCONSTITUTIONALITY OF THE AGGRAVATED SEXUAL BATTERY STATUTE

The defendant attacks the two statutes which together constitute the prohibition against aggravated sexual battery:

Tenn.Code Ann. § 39-2-606(a) defines aggravated sexual battery as unlawful sexual contact (emphasis supplied);

and

Tenn.Code Ann. § 39-2-602(10) defines sexual contact as intentional touching ... if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification (emphasis supplied).

The defendant insists that the statutes are constitutionally defective in two particulars: first, because the statute does not include definitions of the terms "unlawful" and "reasonably"; and second, because the statute fails to designate the intended recipient of the sexual arousal or gratification produced by the prohibited conduct. He asserts, therefore, that the definition of aggravated sexual battery is so vague and overbroad that it violates the due process clauses of our federal and state constitutions. See U.S. Const. amend. V; Tenn. Const. art. I, § 8.

Generally, in order for a statute to meet constitutional requirements, its provisions must be clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Penal statutes, however, are more closely scrutinized, and a penal statute must be sufficiently explicit and clear to inform those who are subject to it what conduct on their part will render them liable to its penalties. Roberts v. Clement, 252 F.Supp. 835, 843-44 (E.D.Tenn.1966) (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). Due process requires that the law give sufficient warning so that people may avoid conduct which is forbidden. Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). Absolute precision in drafting prohibitory legislation is not required since prosecution could then easily be evaded by schemes and devices. State v. Netto, 486 S.W.2d 725, 728 (Tenn.1972). Further, "[t]he use of common experience as a glossary is necessary to meet the practical demands of legislation." Id. at 729-30 (quoting Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932)).

Mr. Justice Cooper, in discussing constitutional vagueness, in the case of State v. Wilkins, 655 S.W.2d 914, 915 (Tenn.1983) (quoting Rose, 423 U.S. at 50, 96 S.Ct. at 244), stated that:

[t]he due process prohibition "does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for '[i]n most English words and phrases there lurk uncertainties.... Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what statutes may compel or forbid."

We think that acceptance of the defendant's contentions would pull us away from a natural and ordinary interpretation of the statutes and force us to accept one which is strained and limited. We need not cite authority for the undefined use of the words "unlawful" and "reasonably" throughout the law. Plainly, the statutes are clear without the inclusion of the definitions of "unlawful" and "reasonably."

Furthermore, with respect to vagueness, in our opinion, it makes no difference which person is intended to be aroused or gratified. Although the conduct may vary, the result is the same. Simply stated, we hold that under the facts of this case, unlawful sexual contact was complete upon the defendant's intentional touching of the victim, whether for sexual arousal or gratification of himself, or of the victim, or of both.

We hold, therefore, that the language complained of, read in the context of both statutes, provides clear warning of the prohibited conduct and sufficiently delineates boundaries so that a person may determine upon which side of the line his acts fall. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954); State v. Thomas, 635 S.W.2d 114, 116 (Tenn.1982); State v. Pender, 687 S.W.2d 714, 718 (Tenn.Crim.App.1984), p.t.a. denied March 4, 1985.

THE ADMISSIBILITY OF EXPERT TESTIMONY COMPARING CERTAIN

SYMPTOMS EXHIBITED BY THE VICTIM WITH A

COMBINATION OF SYMPTOMS THOUGHT TO BE

TYPICAL AMONG CHILD VICTIMS OF

SEXUAL ABUSE

Following a pre-trial offer of proof, the trial judge overruled defendant's objection to the testimony of Dr. Abraham Brietstein; he was permitted to testify at trial. Dr. Brietstein, who was awarded the Ph.D. degree from Florida Institute of Technology claims expertness in the evaluation and treatment of sexually-abused children. He first conducted a clinical interview with "T." and later administered the Children's Apperception Test and the House-Tree-Person test. In his...