White v. State

• Decision Date: 13 November 1975
• Citation: 533 S.W.2d 735
• Parties: J. D. WHITE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 735

533 S.W.2d 735

J. D. WHITE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Nov. 13, 1975 Certiorari Denied by Supreme Court Dec. 30, 1976.

Robert I. Livingston, Memphis, for plaintiff-in-error.

R. A. Ashley, Jr., Atty. Gen., Richard Lodge, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Wayne Emmons, Asst. Dist. Atty. Gen., Memphis, for defendant-in-error.

OPINION

DUNCAN, Judge.

The plaintiff in error, J. D. White, hereinafter referred to as the defendant, brings this appeal contesting his convictions of rape, and robbery by the use of a deadly weapon, for which he received penitentiary sentences of fifty-seven (57) years and ten (10) years respectively.

In the defendant's first and second assignments, he attacks the sufficiency of the evidence, contending that the verdicts are contrary to the law and to the evidence.

We summarize the evidence as follows:

At about midnight on October 13--14, 1973, the victim in this case, Cynthia Little, left a friend's house in Memphis, picked up her daughter at a nursery and was on a street trying to catch a ride to her home. She was offered a ride by the defendant, which offer she accepted. The defendant thereafter threatened her with a knife, beat her with his fists and then raped her, all of which occurred in the presence of her young daughter. He then robbed her of her purse and fourteen ($14.00) dollars. During the beating, the defendant hit the victim in the mouth, loosening two (2) of her teeth, one of which she spit out into the car. The victim accurately described the defendant's vehicle to the police and the defendant was arrested in the same vehicle on October 22, 1973. After signing a 'Consent to Search' form, the defendant's vehicle was searched. The knife and the victim's tooth were found in the car. A dentist compared this tooth with the victim's remaining teeth and positively identified it as being her tooth. The victim identified the defendant in a lineup and at the trial.

Shortly after the rape, the victim related the facts and circumstances surrounding the rape to an occupant of a nearby house, James H. Taylor, and to her mother and a police officer, all of whom testified regarding the details of the victim's conversation with them.

A doctor examined the victim after the rape and testified that his tests indicated the presence of sperm in her vagina.

Evidence of two (2) prior rapes by the defendant was admitted at the trial for the purpose of showing identity and course of conduct. These two (2) offenses involved the rapes of Jane Marshall on August 8, 1973, and Patricia Ann Sharp on September 23, 1973. The evidence showed that the same Modus operandi used in the instant case was also used in the two (2) prior rapes. Each of these prior victims similarly described the vehicle used by the defendant, and this description was the same as described by the victim in the present rape. Each testified as to his mannerisms, conversations and emotional state, all of which were similar to the testimony of the victim in the present case. At the trial, each of the prior victims identified the defendant as their assailant. Moreover, Sharp's ring and some strands of Marshall's hair were found in the defendant's vehicle. The evidence showing the defendant's guilt in these two (2) prior rapes was clear and convincing.

The defendant presented an alibi defense, stating that he was at home on the three (3) occasions when these rapes had occurred. He sought to bolster his alibi through the testimony of other witnesses, some of whom stated that his automobile was at home and not in operating condition at the time of the Jane Marshall rape on August 8, 1973. Significantly, the defendant testified that his car was in operating condition on that date. Other defense witnesses sought to account for the defendant's vehicle being elsewhere on September 23, 1973 (date of the Sharp rape), and on October 13--14, 1973 (date of the instant offense), rather than at the scene of these offenses. Little and Sharp both had testified that the defendant had his hair braided at the times they were raped. The defendant testified that at the time of his arrest, his hair was in a 'bush' 'like a Afro' and that it was not 'plaited.' A picture of the defendant made at the time of his arrest showed that his hair was braided or plaited, as testified to by Little and Sharp. The defendant testified that after he was arrested, a 'secretary' at the police station plaited his hair. He denied all three (3) assaults and took a position that the police had framed all of the evidence against him. When asked why he thought Little had testified as she did, the defendant stated, 'Well, I could say it's coming from the detective.' In offering his explanation as to how Little's tooth got into his car, the defendant testified that the officers had said to him that they 'was going to try and hide me and this is a good way,' explaining that 'hiding' meant to put him in the penitentiary for a long time. The defendant further testified that the officers were 'God behind closed doors. They do what they want to do.'

The evidence is compelling against this defendant in our opinion. The victim identified the defendant and his automobile; the defendant's identity was further established by the testimony of the two (2) prior rape victims, who also identified his motor vehicle; he was arrested in the same vehicle; the knife and the present victim's tooth were found in the car; and bloodstains were found in the defendant's car. The defendant admitted to the officers that he owned the subject automobile; that no one else drove it, and that he had the only key to the car.

The jury accredited the State's witnesses and rejected the defendant White's defense of alibi. The defense of alibi presents an issue of fact determinable by the jury, as the exclusive judges of the credibility of the witnesses testifying in support of that defense and of the weight to be given their testimony. Green v. State, Tenn.Cr.App., 512 S.W.2d 641 (1974), and cases cited therein.

'Rape is the unlawful carnal knowledge of a woman, forcibly and against her will.' T.C.A. § 39--3701.

Cynthia Little was assaulted with a knife, beaten about the face, her teeth were broken and one tooth was knocked out. The record shows that the defendant had sexual intercourse with her, and that it was forcibly and against her will. She resisted to the extent necessary and reasonable under the circumstances. King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962).

Further, the robbery of Cynthia Little was 'accomplished by the use of a deadly weapon.' T.C.A. § 39--3901. The evidence showed that the defendant took the victim's purse and money after threatening her with a knife, and after brutally beating and raping her. The fact that the defendant did not threaten the victim with the knife at the actual moment of the robbery, nor that the victim could not see the knife at that exact time, are of no significance.

In Burgin v. State, 217 Tenn. 682, 687--88, 400 S.W.2d 539, 541 (1966), our Supreme Court, in quoting from 77 C.J.S. Robbery § 25 at 465, stated, in part, as follows:

'Further, the robber need not be armed at all times during the robbery in order to be guilty of robbery in the first degree; he is guilty of robbery in the first degree if he arms himself or becomes armed with a deadly weapon at any time during the progress of the taking or while the robbery is being perpetrated, and in this connection the crime of robbery is not completed the moment the stolen property is in the possession of the robbers, but may be deemed to continue during their attempt to escape.'

The evidence in this case shows that the defendant committed this assault by the use of a deadly weapon, and it remained in his possession, either on his person or in his automobile, throughout the commission of these offenses. The threat of death to the victim by the use of this weapon was ever present and ever real from the moment that the defendant pulled the knife on her until she was released from the vehicle.

The facts in this case, as well as the law pertaining thereto, supports the defendant's convictions of rape, and robbery by the use of a deadly weapon.

In considering and passing on assignments of error challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury in criminal cases, we are bound by the law that a guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State. Such a verdict removes the presumption of the innocence of the accused which stands as a witness for him until he is convicted, and raises a presumption of his guilt upon appeal, and he has the burden upon appeal of showing that the evidence preponderates against the verdict and in favor of his innocence. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186 (1966); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967); Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135 (1968).

The evidence does not preponderate against the verdicts in these cases and the assignments on the evidence are overruled.

In his final assignment of error the defendant contends that the trial court erred in allowing the State to introduce evidence of the two (2) prior rapes of Patricia Ann Sharp and Jane Marshall.

The State offered such evidence for the stated purpose of showing the defendant's identity and course of conduct. The judge allowed the evidence to be admitted but cautioned the jury at the time, as well as in his written charge, that such could only be considered by the jury for these stated purposes.

The similarities of the three (3) rape offenses are so great that there can be no question but that the defendant committed all three (3) rapes. In addition to the evidence heretofore covered under...