State v. Walters, No. M2003-03019-CCA-R3-CD (TN 11/30/2004)

Decision Date30 November 2004
Docket NumberNo. M2003-03019-CCA-R3-CD.,M2003-03019-CCA-R3-CD.
PartiesSTATE OF TENNESSEE v. CHESTER WAYNE WALTERS.
CourtTennessee Supreme Court

Appeal from the Criminal Court for White County; No. CR599; Lillie Ann Sells, Judge.

Judgments of the Criminal Court Affirmed in Part, Modified in Part, Case Remanded.

David Neal Brady, District Public Defender, Joe L. Finley, Jr., and John Byers Nisbett, III, Assistant Public Defenders, for the appellant, Chester Wayne Walters.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William Edward Gibson, District Attorney General; and William M. Locke, Assistant District Attorney General, for the appellee, State of Tennessee.

Joseph M. Tipton, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., concurred.

OPINION

JOSEPH M. TIPTON, Judge.

A White County Criminal Court jury convicted the defendant, Chester Wayne Walters, of two counts of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him to concurrent sentences of twenty-five years for each rape conviction and twelve years for each aggravated sexual battery conviction. The defendant appeals, claiming that (1) the evidence is insufficient to support the convictions; (2) the trial court should have merged the aggravated sexual battery convictions into the child rape convictions; (3) the trial court improperly allowed an expert to give hearsay testimony; (4) the trial court erred by failing to charge any lesser included offenses; (5) the trial court gave erroneous jury instructions on the mens rea elements of the crimes; and (6) his sentences are excessive. We affirm the defendant's child rape convictions but hold that his convictions for aggravated sexual battery violate double jeopardy and must be merged into the child rape convictions. We also hold that the trial court improperly enhanced the defendant's sentences in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and we reduce the defendant's sentences to twenty-three years for each child rape conviction. We remand the case for the entry of appropriate judgments of conviction.

This case relates to the defendant's having sexual intercourse with his girlfriend's twelve-year-old daughter. The victim testified that in 1997, she lived in a trailer with her mother, older brother, younger sister, and the defendant. She said that on February 10, 1997, she did not go to school because it was her twelfth birthday and that she was at home alone with the defendant. She said that she went into the bathroom about 4:00 p.m. to take a shower and that she got undressed. She said that the defendant came in the bathroom, got "ahold" of her, and that they ended up on the floor. She said that the defendant was touching her breasts and genital area and that he put his private in her private and began moving back and forth. She said that it felt like "it was ripping my intestines out," that the defendant ejaculated on her, and that she bled afterward. She said that the defendant told her it would feel better if she would be quiet and wait and that she "would want it more often." She said he also threatened to hurt his young son if she told anyone. She said she took a shower and did not tell her mother about the incident because her mother was in love with the defendant and because she was afraid her mother would hate her.

The victim testified that on Friday, September 12, 1997, her mother, brother, and sister went to the store and that she was at home alone with the defendant. She said that she was sitting on the living room couch and that the defendant walked over to her and began kissing her and taking off her clothes. She said that the defendant rubbed her private parts and had sexual intercourse with her, that he ejaculated, and that she bled. She said that right after the incident, her father's car pulled up to the trailer and her father blew the horn. She said the defendant went to the door in his underwear and told her father that everyone had gone to the store. She said that her father left and that she did not tell her mother about the incident when her mother got home. She said that she went to live with her father in order to get away from the defendant and that her father got custody of her and her brother. She said that in September 1999, the Department of Human Services (DHS) began investigating her relationship with Aaron Trobaugh, a jail inmate. She said that she and Mr. Trobaugh were friends and had been exchanging letters. She said Tonya Scott from the DHS questioned her about the letters and began pressuring her. She said she became upset and told her stepmother and stepsister about having sex with the defendant. She said that she later told Ms. Scott about the abuse and that a doctor examined her. She said that she was telling the truth and that she had no reason to lie against the defendant.

On cross-examination, the victim testified that Mr. Trobaugh had known her mother for a long time, that he and her mother had grown up together, and that Ms. Scott questioned her about whether she had had sex with him. She said that she had never had sex with Mr. Trobaugh, that she loved him in a friendly way because he had done a lot for her family, and that they had exchanged friendship letters. She denied that they discussed marriage and sex in their letters but acknowledged that she told Ms. Scott she had kissed Mr. Trobaugh on the cheek. She said that she did not remember telling Ms. Scott she had kissed Mr. Trobaugh on the lips and that she had no reason to protect him.

Arthur Young, the victim's father, testified that after he divorced the victim's mother, the victim's mother had custody of the victim and her brother for about ten years. He said that he remarried, visited the children every weekend, and would pick them up on Friday afternoons. He said that in 1997, the victim and her brother were living in a trailer with their mother and the defendant and that on September 12, he went to the trailer to pick up the children for the weekend. He said that he blew the horn and that the defendant came to the door wearing only his underwear. He said that he asked the defendant where the victim's mother was and that the defendant told him everyone was at the store. He said that he went to the store and that his son told him the victim was at the trailer. He said that when the victim's mother came outside, he fussed at her for leaving the victim alone with the defendant. He said the victim's mother got upset and told him that the defendant would not hurt the victim. He said that he drove into town to speak with an attorney, that he filed for custody of his children immediately, and that a temporary custody hearing was held on September 15.

On cross-examination, Mr. Young testified that seeing the defendant in his underwear and learning that the victim was alone with the defendant concerned him very much. He said, though, that he did not go back to the trailer to get the victim because his ex-wife was upset and "would have stirred up all kinds of trouble." He said that after he got custody of his children, he did not ask the victim if anything was going on with the defendant and she did not tell him about the abuse. He acknowledged that in 1999, he confiscated romantic letters that the victim and Aaron Trobaugh had exchanged. He said that as soon as he learned about their relationship, he put a stop to it. He said that in September 1999, the DHS began investigating the victim's relationship with Mr. Trobaugh and that someone from the DHS interviewed the victim at school without his permission. He said that at first, the victim did not tell anyone from the DHS about the defendant's sexual abuse. He said the victim later told his wife and Tonya Scott about it.

Dr. Allen Drake testified that he examined the victim on October 4, 1999, for possible sexual abuse. He said that the victim had a difficult time telling him about the abuse because she was embarrassed and that he obtained most of his information from the victim's stepmother. He said that according to the victim's stepmother, the victim had stated that the defendant forced the victim to have sex with him on several occasions when the victim was eleven or twelve years old. He said that he asked the victim if her stepmother's information was correct and that the victim said yes. He said that the victim's hymen had been broken but had completely healed and that he found no evidence of trauma, bleeding, or abrasions to the victim's external genitalia. He said that his examination of the victim was consistent with the stepmother's information and that the healed hymen indicated the abuse had occurred at least three weeks before he examined the victim. He acknowledged that something other than a penis could have penetrated the victim.

I. SUFFICIENCY OF THE EVIDENCE

The defendant claims that the evidence is insufficient to support the convictions because the two incidents happened seven months apart, the victim waited until 1999 to tell anyone, and the victim's father went to see a lawyer instead of returning to the trailer to get the victim. The state contends that the evidence is sufficient. We agree with the state.

Our standard of review when the defendant questions the sufficiency of the evidence on appeal is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676...

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