State v. Vick, No. W2005-00467-CCA-R3-CD (TN 3/22/2006), W2005-00467-CCA-R3-CD.
| Decision Date | 22 March 2006 |
| Docket Number | No. W2005-00467-CCA-R3-CD.,W2005-00467-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. JASPER L. VICK. |
| Court | Tennessee Supreme Court |
Robert L. Parris, Memphis, Tennessee, for the appellant, Jasper L. Vick.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; Lee Coffee, Assistant District Attorney General; and Christopher Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.
Following a jury trial, Defendant was convicted of one count of especially aggravated kidnapping, a Class A felony, two counts of aggravated kidnapping, a Class B felony, and one count of sexual battery, a Class E felony. The trial court merged Defendant's two convictions for aggravated kidnapping into his conviction for especially aggravating kidnapping. The trial court sentenced Defendant as a Range II, multiple offender, to thirty-six years for his especially aggravated kidnapping conviction and four years for his sexual battery conviction. The trial court ordered the sentences to be served consecutively, for an effective sentence of forty years. Defendant does not challenge the imposition of consecutive sentencing. In his appeal, Defendant argues (1) that the evidence is insufficient to support his convictions; (2) that the trial court erred in denying Defendant's motion for a continuance; (3) that the trial court erred in classifying Defendant as a Range II multiple offender; and (4) that the trial erred in its application of enhancement factors. After a thorough review, we affirm Defendant's convictions of especially aggravated kidnapping and sexual battery. However, we remand the case to the trial court for resentencing in accordance with this opinion.
Earline Holt testified that Defendant began living with her in her apartment in December 1999. At the time of the offenses, Ms. Holt was seven and one-half months pregnant with Defendant's child. Ms. Holt said that Defendant took her to work on February 14, 2001, between 5:15 a.m. and 5:30 a.m., in Ms. Holt's red, 1989 Oldsmobile Cutlass. Ms. Holt's mother arrived at her place of employment around 8:15 a.m., and told Ms. Holt that she needed to go home. When Ms. Holt arrived, the police were at her apartment.
Ms. Holt identified the comforter that was on the bed of her daughter, the victim in this case. Ms. Holt said that she never used the comforter after Defendant began living with her. Ms. Holt said that she and Defendant had sexual intercourse about a week before the offenses, but not on her daughter's bed.
On cross-examination, Ms. Holt said she had a "nice relationship" with Defendant. She acknowledged, however, that she called the police in July 2000, when Defendant got upset and struck his daughter who was visiting them. Ms. Holt said that Defendant never took the victim to school, because the school was located across the street from their apartment. Ms. Holt said that sometimes her brother and his girlfriend spent the night in the victim's bedroom. She denied that her sister and her boyfriend had sexual intercourse in the victim's bedroom.
Ms. Holt acknowledged that her daughter did not suffer any physical injuries during the incident, and Ms. Holt did not take her daughter to Child Advocacy until the day after the offenses.
The victim testified that she was fourteen years old at the time of the offenses. She said that Defendant took her mother to work on February 14, 2001, while she was still asleep. When Defendant returned, he came into her bedroom and showed her a "crack pipe" fashioned like a sex toy. The victim said that she told Defendant to leave her alone, and he told her it was time to get up for school. The victim got up and went into the bathroom. Defendant was still sitting on her bed when she returned. The victim said that Defendant did not have a shirt on, but that was not unusual. Defendant told the victim to turn off the light and close the bedroom door. She refused. Defendant stood up, and the victim saw that he was naked. The victim asked him what he was doing, and Defendant told her that he was going to "have sex" with her because her mother would not. The victim kept telling Defendant, "no."
The victim could not remember how her clothes were removed. The victim refused Defendant's advances, and Defendant started choking her. Defendant then rubbed his "private on [her] private." Defendant continued touching her for about ten to fifteen minutes, and then he told the victim to go take a shower. The victim said she showered and got dressed. Defendant would not let her answer the telephone which had been ringing on and off that morning. The victim said it was her cousin, Shameka Fifer, calling because the young women always walked to school together.
The victim said she and Defendant left the house. Defendant was carrying a kitchen knife with a black handle and told the victim not to "act stupid." The victim interpreted this to mean that she was not to run or scream. The victim said she was afraid that Defendant was driving her somewhere to kill her. Defendant and the victim left the apartment complex in Ms. Holt's car. Defendant placed the knife in the cup holder in the front seat armrest while he drove on the interstate. The victim said she kept talking, trying to calm Defendant down because he was acting "agitated, real easy to get mad."
After awhile, Defendant turned the car around and drove the victim to Shameka Fifer's second floor apartment. Defendant stood at the bottom of the staircase, and watched as the victim ran up to her cousin's apartment. The victim said Ms. Fifer was waiting for her at the top of the stairs, and the two young women went inside the apartment. The victim was crying. Shameka Fifer's mother, Stephanie Fifer, asked the victim what was wrong, and the victim said she could not tell her. Stephanie Fifer asked the victim if Defendant had done something to her, and the victim nodded. Stephanie Fifer called the victim's grandmother. The victim identified the comforter which was introduced as an exhibit at trial as the comforter which was on her bed when Defendant accosted her.
On cross-examination, the victim acknowledged that she did not have any bruising on her neck after Defendant choked her. She said that Defendant never touched her with the knife's blade, but he kept the knife pointed in her direction. The victim agreed that the comforter was on her bed when her uncle and his girlfriend spent the night.
Shameka Fifer testified that the victim usually called her in the morning when she was ready to leave for school. Ms. Fifer said that when the victim did not call her on February 14, 2001, Ms. Fifer started calling the victim's apartment. Ms. Fifer said she was just starting to go over to the victim's apartment when Defendant and the victim arrived. Ms. Fifer said that Defendant waited at the bottom of the stairs until the victim reached the top landing.
Michael Redd testified that he was the groundskeeper for the victim's apartment building and lived on the premises. Mr. Redd said that he was friendly with Defendant. He saw Defendant leave the apartment complex at approximately 8:00 a.m. in Ms. Holt's Oldsmobile on February 14, 2001, but Defendant did not speak to him. Defendant drove toward Interstate 240.
Rachel Copeland, a forensic nurse examiner with the Memphis Sexual Assault Resource Center, testified that she attempted to take a blood sample from Defendant for DNA sampling. Defendant told her she would need a court order. A court order was obtained, and Defendant again refused to cooperate. The trial court conducted a hearing and again ordered Defendant to give a blood sample. When he continued to resist, Defendant was sedated and a blood sample drawn.
Officer Carl Martin with the Memphis Police Department interviewed the victim on February 14, 2001. Officer Martin said the victim had been crying and was sometimes unresponsive to his questioning. The victim told him, however, that Defendant accosted her when she got up to get ready for school. The victim told Officer Martin that Defendant rubbed his penis on her vagina. Defendant made the victim take a shower and then get into the car. Officer Martin said the victim told him that Defendant drove around for awhile, and then returned to the apartment complex.
Special Agent Donna Nelson, a forensic scientist with the TBI, cut seven swatches of material from the victim's comforter. The first four swatches showed the presence of semen from two unidentified individuals. The semen sample from the last three swatches matched Defendant's DNA. On cross-examination, Agent Nelson testified that it was impossible to date the semen stains.
Defendant called Alice Faye Robinson as a witness. Ms. Robinson said that she lived in Cotton Plank, Arkansas, which was about sixty miles from Memphis. Ms. Robinson had known Defendant for about twenty-five years. Ms. Robinson testified that Defendant spent the night with her on February 13, 2001. The following morning, Ms. Robinson said that she, Defendant, and Ms. Robinson's granddaughter shopped for most of the day. Defendant gave Ms. Robinson a wrist watch for Valentine's Day.
Defendant testified that he was in Cotton Plank, Arkansas on February 13 and February 14, 2001. He said that he and Ms. Holt had an argument about Ms. Holt's cocaine use on the morning of February 13, and he drove to Arkansas around 4:00 p.m. to avoid further arguing. Defen...
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