STATE of Tennessee v. DeWayne COLLIER AKA Patrick Collier

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

May 1, 2013 Session Heard at Knoxville

STATE OF TENNESSEE v. DEWAYNE COLLIER aka PATRICK

COLLIER

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 0904165 John T. Fowlkes, Jr., Judge

No. W2010-01606-SC-R11-CD - Filed August 12, 2013

A Shelby County jury convicted the defendant of aggravated statutory rape, and the trial

court imposed a sentence of four years. On appeal, the defendant, who was forty-two years

old at the time of the offense, argued that the evidence was insufficient to support his

conviction because the testimony of the fourteen-year-old female victim, a consenting

accomplice in the crime, was not adequately corroborated by other proof. The Court of

Criminal Appeals found that the victim qualified as an accomplice to the crime but affirmed

the conviction, holding that her testimony was sufficiently corroborated by the evidence in

the record. This Court granted review to determine whether a victim of statutory rape

qualifies as an accomplice such that his or her testimony must be corroborated in order to

support a conviction. We hold that the testimony of a victim of statutory rape does not

require corroboration. Because the evidence is sufficient to sustain the conviction, the

judgment of the Court of Criminal Appeals is affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee, for the appellant, DeWayne

Collier.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Rachel E. Willis, Senior Counsel; Sophia S. Lee, Assistant Attorney General; William L.

Gibbons, District Attorney General; and Damon Griffin, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

On Friday, September 5, 2008, the victim, C.D.,1 was a fourteen-year-old student in

the ninth grade at a high school in a small town in Arkansas located less than thirty miles

from Memphis, Tennessee. At that time, she lived with her father, her mother, and her two

brothers. A member of the school marching band, the victim was scheduled to perform that

evening in the school’s first football game of the season.

Instead of attending the game, however, the victim left school, traveled to the

residence of a friend, and borrowed her friend’s mother’s cell phone to call DeWayne Collier

(the “Defendant”), whom the victim had known through his acquaintance with her father.

The purpose of her call was to ask the Defendant to take her to his house in Memphis so that

they could “spend time together.” During the conversation, the Defendant mentioned that

he was still at work but agreed to meet her at the YM Grocery Store, a convenience market

located within walking distance of the victim’s friend’s residence. The victim told her friend

that she intended to meet “her uncle” at the store and, after approximately fifteen minutes,

left the residence. On the way, she happened to see a former boyfriend, who walked with her

to the grocery. By the time they arrived at the grocery, the Defendant was waiting. The

victim entered his vehicle, and the Defendant drove away.

After teasing the victim about her former boyfriend, the Defendant drove some forty

minutes to his residence in Memphis, stopping on the way at a liquor store to buy twelve

mini-bottles of margarita. Upon their arrival, the Defendant opened a bottle of margarita, the

Defendant and the victim undressed, and the two took a bath together. During this time, the

victim observed that the Defendant had a tattoo of a panther high on his chest near a scar and

also noticed scars on his back. The two stayed in the bathtub for about thirty minutes before

going into a bedroom. The victim put on her underwear and a tank top that the Defendant

had given her and drank a margarita. After some fifteen to twenty minutes, the two engaged

in sexual intercourse. Afterward, the Defendant ordered take-out food from a restaurant on

Beale Street. After eating and watching a movie on television, the Defendant and the victim

engaged in sexual intercourse a second time. They “washed up” and then slept together

throughout the night.

1

C.D. is identified by her initials because she was a minor during the events that gave rise to this

case.

-2-

After waking up at 7:00 a.m. on the following morning, a Saturday, the two engaged

in sexual intercourse a third time. The Defendant did not use a condom on this occasion,

whereas he had used a condom at least once the night before. Three or four hours later, the

Defendant’s brother knocked on the door. Neither the Defendant nor the victim answered,

and the victim quickly moved to an adjoining room. The Defendant’s brother also tapped

on the bedroom window, but when the Defendant did not respond, he left. Afterward, at

approximately 11:30 a.m., the Defendant and the victim engaged in sexual intercourse a

fourth time.

Later, the victim washed again, and the Defendant laundered her clothes. A fifth

sexual encounter apparently took place in the late afternoon on Saturday. The victim did not

shower, bathe, or douche afterward, and she wore the same underwear on both Friday and

Saturday.

After dark, at about 9:15 p.m., the Defendant drove the victim back to her residence

in Arkansas, a distance of fifteen to twenty miles. The Defendant dropped her off at the

entrance of the driveway in an effort to avoid any suspicion that he had been with the victim

during the time she was away. When the victim entered her residence, her mother, who was

crying, questioned her about where she had been. Fearing that the truth would get the

Defendant in trouble, she falsely claimed that she had spent the night at a friend’s house.

When the police arrived several minutes later in response to a prior call from the victim’s

mother, the victim changed her story, admitting that she had been with the Defendant and

providing details of what had actually transpired. The officer drove her to Crittenden

Regional Hospital in West Memphis, Arkansas, where she was examined for several hours.

She acknowledged to a nurse that she and the Defendant had engaged in sexual intercourse,

during which he had ejaculated in her vagina. The victim claimed to the police that she had

attempted to contact her mother by telephone, but was unable to do so because her mother

had blocked all calls from unknown numbers. She also stated that she chose to return to her

home after dark because her father worked outside during the day, implying that he would

have seen her with the Defendant had she returned earlier.

Ebertina Halfacre, a lieutenant in the sex crimes unit of the Memphis Police

Department, interviewed the victim on the following Monday. The victim identified the

Defendant from a photographic array, and afterward, Lieutenant Halfacre was able to

determine that the Defendant was forty-two years of age. Lieutenant Halfacre acquired a

warrant and conducted a search of the Defendant’s residence. Bed linens and towels were

taken for testing, and the police took several photographs of the interior of the residence. On

the day following the search, a warrant was issued for the Defendant’s arrest. He was later

indicted by the Shelby County grand jury for aggravated statutory rape. See Tenn. Code

Ann. § 39-13-506(c) (Supp. 2008).

-3-

At trial, the victim offered testimony largely consistent with her statement to the

police. Lieutenant Halfacre testified that the victim had provided an accurate description of

the interior of the Defendant’s residence with only minor exceptions; for example, the victim

had told her that there were photographs of children on the wall, and she remembered where

the face towels were kept. According to Lieutenant Halfacre, the victim was also able to

describe the black shower curtain, the white bathroom floors, the floral comforter on the bed,

the television in the bedroom, the layout of the kitchen, and the color of the sofa.

The victim’s mother testified that when she did not hear from her daughter after

school on Friday, she went to the location of the football game. Unable to find her daughter

there, she returned to her residence at 6:30 or 7:00 p.m., thinking she had just missed her.

The victim’s mother further testified that she stayed up late waiting for the victim and, when

she did not return, assumed that the victim had spent the night with a girlfriend, which was

unusual because she had not asked permission to do so. She recalled that at 6:00 a.m. on

Saturday, she drove to the victim’s friend’s residence and was then directed to the residence

of another friend. At about 10:00 or 11:00 a.m., when the victim’s mother discovered that

neither of the victim’s friends had seen her, she contacted the police, who issued an AMBER

alert.2 The victim’s mother then showed a photograph of the victim to several of the young

people in the area in an effort to find her. At approximately 1:00 p.m., she went to the YM

Grocery Store. The owner confirmed that he had seen her, but had no knowledge as to her

whereabouts. When the victim returned on Saturday night, her mother contacted the police

and, as indicated, overheard much of the victim’s statement to the police before she was

taken to the local hospital for examination. The victim’s mother acknowledged that the

Defendant had been to her residence on prior occasions, explaining that her husband and the

Defendant had grown up together.

When the State rested its case, the Defendant moved for a judgment of acquittal,

asserting that the evidence offered by the State was insufficient as a matter of law to support

a conviction for aggravated statutory rape. The trial court denied the motion.

Although the Defendant did not testify at trial, he called several witnesses to testify

on his behalf. Tim Chandler, owner of Chandler Demolition Company, testified that the

Defendant had worked from 7:00 a.m. to 4:00 p.m. at the Levy Road landfill location on

2

The “AMBER alert” program, which stands for “America’s Missing: Broadcast Emergency

Response,” is a child abduction alert system established in several states, including Tennessee, following the

abduction and murder of nine-year-old Amber Hagerman in the Dallas/Fort Worth area. See Lisa Rodriguez,

A National Amber Alert Plan: Saving America’s Children, 28 Seton Hall Legis. J. 169, 176 (2003); Tenn.

Bureau of Investigation, AMBER Alert, Tn.gov, http://www.tbi.tn.gov/missing_children/amber_alert.shtml

(last visited Aug. 1, 2013).

-4-

Friday, September 5, 2008. Mr. Chandler estimated that he would have last seen the

Defendant at approximately 4:15 p.m., based upon the time of travel from the landfill to the

company office where the Defendant checked out. The business records of the company

established that the Defendant continued to work for Chandler Demolition until his arrest.

Willie Crump, also an employee of Chandler Demolition, testified that he and the

Defendant left work at 4:00 p.m. and that he accompanied the Defendant to a store across the

street from the job site so they could cash their paychecks. According to Mr. Crump, the

Defendant drove him to his residence, dropping him off there at 4:30 p.m. He did not recall

the Defendant taking any telephone calls during this period of time.

Qadriyyah Debnam, a forensic serologist with the Tennessee Bureau of Investigation,

was also called as a defense witness. Dr. Debnam, who had been provided with the sexual

assault kit by the police, examined a blood sample of the victim and her vaginal swabs, rectal

swabs, oral swabs, underwear, and clothing. She also received a saliva sample from the

Defendant for comparison purposes. According to Dr. Debnam, there was no semen present

in the oral swab of the victim or on her underwear. Although Dr. Debnam did find semen

in the crotch area of the victim’s jeans, she found no sperm. She could not determine when

the semen was deposited on the jeans. She testified that it was unusual not to find semen on

underwear which had been worn after sex, absent the use of a condom. In summary, the only

DNA Dr. Debnam found in her investigation was that of the victim.

At the conclusion of all proof, the Defendant again made a motion for judgment of

acquittal, which the trial court denied. The jury found the Defendant guilty of aggravated

statutory rape, a Class D felony. See Tenn. Code Ann. § 39-13-506(d)(3). The trial court

classified the Defendant as a Range II multiple offender and imposed a four-year sentence

with a release eligibility of 35%. See id. § 40-35-501(d) (2006).

On appeal to the Court of Criminal Appeals, the Defendant challenged the sufficiency

of the evidence, asserting that the trial court should have granted both of his motions for

judgment of acquittal because the victim qualified as an accomplice to the offense and the

State failed to present adequate corroborating evidence of her testimony, as is required by

law. The Court of Criminal Appeals affirmed the conviction, holding that the Defendant had

waived any error as to the denial of his first motion for judgment of acquittal and that the

proof sufficiently corroborated the victim’s testimony. State v. Collier, No. W2010-01606-

CCA-R3-CD, 2012 WL 2849495, at *5, *9 (Tenn. Crim. App. July 11, 2012). Judge Jerry

L. Smith, writing for the court, cited the common law rule that a consenting minor victim

thirteen years of age or older is considered an accomplice in a statutory rape, but criticized

the rationale for the rule, see id. at *7, as he had previously done several years ago in State

v. Pitts:

-5-

We are perplexed as to how a “victim” can be an “accomplice” under any

circumstance. The two terms are mutually exclusive under Tennessee law. A

“victim” is statutorily defined as “the person alleged to have been subjected to

criminal sexual conduct.” Tenn. Code Ann. § 39-13-501(8) (1991) (emphasis

added). However, an “accomplice” is one who “knowingly, voluntarily, and

with common intent unites with the principal offender in the commission of a

crime.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995)

(emphasis added). Furthermore, the “test” to determine if a person is an

accomplice to an offense is whether that person could be indicted for or

convicted of that offense[, and a victim does not qualify under that standard].

[Id.]; State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).

No. 01C01-9701-CC-00003, 1999 WL 144744, at *5 n.7 (Tenn. Crim. App. Mar. 18, 1999).

Despite this criticism, the Court of Criminal Appeals applied the rule requiring corroborative

evidence of the victim’s testimony and found that the State had met its burden of proof.

Collier, 2012 WL 2849495, at *9.

We granted the application for permission to appeal in order to examine the propriety

of the holdings in a series of cases beginning in 1895 which have developed a rule that a

minor victim between thirteen and seventeen years of age, who consents to a sexual act

involving an adult defendant, qualifies as an accomplice to the crime whose testimony must

be corroborated.3 If the victim of a statutory rape cannot be classified as an accomplice, then

no corroboration is necessary to uphold the Defendant’s conviction based upon the testimony

of the victim.

II. Analysis

A. Denial of Motion for Judgment of Acquittal

We first address the trial court’s denial of the Defendant’s motion for judgment of

acquittal at the conclusion of the State’s proof, a motion that the Defendant also made at the

conclusion of all of the proof at trial. As indicated, the Court of Criminal Appeals found that

the Defendant had waived the issue by offering evidence after the denial of his initial motion

for a judgment of acquittal.

Tennessee Rule of Criminal Procedure 29 provides in pertinent part as follows:

3

In 1991, the accomplice corroboration rule was modified by statute to provide that, regardless of

consent, children under the age of thirteen may not be considered an accomplice to sexual penetration or

sexual contact. See Tenn. Code Ann. § 40-17-121 (2006).

-6-

(a) Directed Verdict Abolished. Motions for directed verdict are abolished and

are replaced by motions for judgment of acquittal.

(b) Grounds for Judgment of Acquittal. On defendant’s motion or its own

initiative, the court shall order the entry of judgment of acquittal of one or

more offenses charged in the indictment, presentment, or information after the

evidence on either side is closed if the evidence is insufficient to sustain a

conviction of such offense or offenses.

(c) Proof After Denial of Motion. If—at the close of the state’s proof—the

court denies a defendant’s motion for judgment of acquittal, the defendant may

offer evidence without having reserved the right to do so.

(d) Reserving Decision on Motion at Close of Evidence. If a motion for

judgment of acquittal is made at the close of all the evidence, the court may

reserve decision on the motion, submit the case to the jury, and decide the

motion:

(1) before the jury returns a verdict;

(2) after it returns a verdict of guilty; or

(3) after it is discharged without having returned a verdict.

Tenn. R. Crim. P. 29.4

The Court of Criminal Appeals has consistently held that upon a motion for judgment

of acquittal, whether at the conclusion of the State’s proof or after all the proof at trial, “the

trial judge is concerned only with the legal sufficiency of the evidence and not with the

weight of the evidence.” State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983); see also

State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996); State v. Adams, 916 S.W.2d

471, 473 (Tenn. Crim. App. 1995). This Court has observed that “[t]his rule empowers the

trial judge to direct a judgment of acquittal when the evidence is insufficient to warrant a

4

Federal Rule of Criminal Procedure 29 is different than the state rule. The federal rule was

amended in 1994 to allow trial courts in the federal system to reserve ruling on a motion for judgment of

acquittal at the conclusion of the government’s proof. See Fed. R. Crim. P. 29(b). In such an event,

however, the trial court “must decide the motion on the basis of the evidence at the time the ruling was

reserved.” Id. The Advisory Committee Notes point out that federal appellate courts, in considering the

ruling of a trial court, are “similarly limited.”

-7-

conviction either at the time the state rests or at the conclusion of all the evidence.” State v.

James, 315 S.W.3d 440, 455 (Tenn. 2010) (citing Overturf v. State, 571 S.W.2d 837, 839 &

n.2 (Tenn. 1978)).

In Mathis v. State, this Court held that a defendant had waived his right to appeal from

the trial court’s denial of his motion for a judgment of acquittal at the end of the State’s proof

because, rather than “clos[ing] his case at the conclusion of the State’s proof,” he

“participat[ed] in the trial by the cross-examination of his co-defendant.” 590 S.W.2d 449,

453 (Tenn. 1979). More recently, in Finch v. State, this Court observed that trial courts must

rule immediately on a motion for judgment of acquittal made after the close of the State’s

proof. 226 S.W.3d 307, 313 n.3 (Tenn. 2007). Citing with approval the holding in Mathis,

this Court further observed that a defendant must stand on the motion rather than offering

proof or even cross-examining a co-defendant’s witness during the remainder of the trial or

else waive the issue. Id. at 316-17. In Finch, however, we found that the proof offered by

the State during its case-in-chief was legally sufficient at that point in the trial to sustain a

conviction, and, therefore, a post-conviction petitioner had no grounds for relief on a claim

that his counsel had been ineffective by continuing to participate in the trial after the motion

was denied. Id. at 320.5

In this instance, the trial court denied the motion and, thereafter, the Defendant chose

to call witnesses and present proof. For that reason, he did waive any claim of error for

failure to grant the motion for judgment of acquittal at the conclusion of the proof offered

by the State, as held by the Court of Criminal Appeals, but did not, of course, either waive

his right to appeal the denial of the motion made at the close of all of the proof or to

challenge the sufficiency of the convicting evidence.

B. Sufficiency of the Evidence

The Defendant contends that the trial court should have granted his motion for

judgment of acquittal at the close of all of the proof because the victim was an accomplice

to the crime, meaning that absent independent corroboration of her testimony, the evidence

was insufficient as a matter of law. The State first asserts that this Court should no longer

require corroboration of the testimony of a victim of statutory rape, and, second, submits that

if corroboration is required, the proof presented at trial is sufficient.

5

As this Court noted in Finch, see id. at 317, a majority of jurisdictions apply the waiver rule on the

theory that the “rule eliminates the bizarre result that could occur in its absence, namely, that a conviction

could be reversed for evidentiary insufficiency, despite evidence in the record sufficiently establishing guilt.”

State v. Perkins, 856 A.2d 917, 933 (Conn. 2004).

-8-

When a motion for a judgment of acquittal is made at the close of all of the evidence,

“the trial court must favor the opponent of the motion with the strongest legitimate view of

the evidence, including all reasonable inferences, and discard any countervailing evidence.”

James, 315 S.W.3d at 455 (citing Hill v. State, 470 S.W.2d 853, 858 (Tenn. Crim. App.

1971)). “The standard by which the trial court determines a motion for a judgment of

acquittal is, in essence, the same standard that applies on appeal in determining the

sufficiency of the evidence after a conviction.” State v. Little, No. E2009-01796-SC-R11-

CD, 2013 WL 1165376, at *8 (Tenn. Mar. 22, 2013) (citing State v. Ball, 973 S.W.2d 288,

292 (Tenn. Crim. App. 1998); State v. Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App.

1994)). That 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.” State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Tenn. R. App. P. 13(e) (providing

that a conviction will be upheld if the evidence presented at trial “support[s] the finding by

the trier of fact of guilt beyond a reasonable doubt”).

If solely based upon the uncorroborated testimony of one or more accomplices, the

longstanding rule is that the evidence is insufficient to sustain a conviction. Little, 2013 WL

1165376, at *8 (citing Sherrill v. State, 321 S.W.2d 811, 814-15 (Tenn. 1959); Prince v.

State, 529 S.W.2d 729, 732 (Tenn. Crim. App. 1975)). An accomplice has been traditionally

defined as one who knowingly, voluntarily, and with common intent with the principal unites

in the commission of a crime. State v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004); Clapp v.

State, 30 S.W. 214, 216 (Tenn. 1895). As indicated, in order to determine whether a witness

qualifies as an accomplice, the test generally used is “whether the alleged accomplice could

be indicted for the same offense charged against the defendant.” Monts v. State, 379 S.W.2d

34, 43 (Tenn. 1964); see also Bough, 152 S.W.3d at 464. When the facts concerning an

individual’s involvement in the events of a case are undisputed, as is the case here, the issue

of whether the individual qualifies as an accomplice is a question of law, which is subject to

de novo review without any presumption of correctness of the holdings of the trial court or

the Court of Criminal Appeals. State v. Robinson, 146 S.W.3d 469, 509 (Tenn. 2004); see

also Blair v. Brownson, 197 S.W.3d 681, 683 (Tenn. 2006).

As noted, the sole offense at issue is aggravated statutory rape, a Class D felony which

is defined as “the unlawful sexual penetration of a victim by the defendant, or of the

defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18)

years of age and the defendant is at least ten (10) years older than the victim.” Tenn. Code

Ann. § 39-13-506(c).6 “Sexual penetration,” as the term is used in the statutory rape law, is

6

Statutory rape, a Class E felony, involves sexual penetration where the victim is thirteen to fourteen

(continued...)

-9-

defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,

however slight, of any part of a person’s body or of any object into the genital or anal

openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen

is not required.” Id. § 39-13-501(7) (2006). Consent is not a defense to any form of statutory

rape. State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994), abrogated on other

grounds by State v. Williams, 977 S.W.2d 101 (Tenn. 1998).

Although the trend has been otherwise, Tennessee has remained among a small

minority of jurisdictions that have adhered to the rule classifying a victim of a statutory rape

as an accomplice and requiring corroborative evidence. See Vitauts M. Gulbis, Annotation,

Modern Status of Rule Regarding Necessity for Corroboration of Victim’s Testimony in

Prosecution for Sexual Offense, 31 A.L.R. 4th 120 § 4[c] (1984 & Supp. 2012); see also

Michelle J. Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration

Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U. L. Rev. 945,

958 n.66 (2004) (noting that by 1990, the majority of jurisdictions had abolished the

corroboration requirement in sex offense cases). A review of the development of this area

of our common law is helpful to our analysis.

The minority rule in Tennessee had its beginnings over one hundred years ago, arising

from a charge of incest, a crime for which each of the two individuals involved could have

been charged. Shelley v. State, 31 S.W. 492, 492-93 (Tenn. 1895). The defendant in Shelley

had been convicted based solely upon the testimony of the victim, the daughter of the

defendant’s half-sister. Id. at 493. This Court reversed the conviction, holding that a

consenting victim to incest qualified as an accomplice and that corroborative evidence was

essential to uphold the verdict. Id. Later, in Sherrill v. State, the defendant was charged with

a crime against nature, a felony offense. 321 S.W.2d at 812. The victims, ten and

eleven-year-old boys who had accepted pay in exchange for the performance of sexual acts,

provided uncorroborated testimony of the crime. Id. at 813. The Court set aside the

convictions, holding that the two boys, although minors, were accomplices, and further ruling

that a statement of one accomplice could not serve as corroboration for another. Id. at 814-

15. Deeming the corroboration requirement a “very salutary rule,” the Court indicated that

the testimony of minor sex offense victims “should be taken with great caution” and rejected

6

(...continued)

years of age and the defendant is at least four but less than ten years older, or where a victim is between

fifteen and seventeen years of age and the defendant is at least five but less than ten years older. Id. § 39-13-

506(b)(1)–(2), (d)(2). Mitigated statutory rape, also a Class E felony, is defined as sexual penetration where

the victim is fifteen to seventeen years of age and the defendant is at least four but not more than five years

older. Id. § 39-13-506(a), (d)(1).

-10-

a contention by the State that corroboration should not be required in the case of “children

of tender years [who] are incapable of consenting to [the crime charged].” Id.

In the following year, this Court heard an appeal by a defendant from a conviction for

carnal knowledge of his wife’s daughter from a prior marriage, which allegedly took place

over a two or three-year period when she was approximately fifteen to sixteen years of age.

Scott v. State, 338 S.W.2d 581, 582-83 (Tenn. 1960). Citing Sherrill, the Court held that the

corroboration requirement applied “in sex cases even where the accomplice is a child of such

tender years as to be incapable of consenting to such crime.” Id. at 583. Because the Court

concluded that a minor victim who voluntarily consented to sexual activity qualified as an

accomplice, the conviction was reversed for the lack of corroborating evidence. Id. at 583-

84.

Four years later, in Monts, this Court confirmed that the general test for identifying

an accomplice was “whether the alleged accomplice could be indicted for the same offense

charged against the defendant.” 379 S.W.2d at 43. Based on Sherrill and Scott, however,

the Court recognized an “exception” to the general test in those instances “where the

accomplice or participant in the defendant’s crime is a child of such tender years as to be

incapable of consenting to the crime in which he participates,” observing that

“[c]orroboration in such a case is required even though under the [general] test, the child

would not be considered an accomplice.”7 Id. The rule that has emerged from this line of

cases is that a minor, even though legally incapable of being charged with a sex crime

because of his or her age, may nevertheless qualify as an accomplice whose uncorroborated

testimony cannot support a conviction.8 See, e.g., Boulton v. State, 377 S.W.2d 936, 938

(Tenn. 1964) (reversing conviction of crime against nature because of inadequate

corroboration of testimony provided by fourteen-year-old victim); see also State v. Schimpf,

782 S.W.2d 186, 196 (Tenn. Crim. App. 1989), superseded by statute, Tenn. Code Ann.

§ 40-17-121, as recognized in Pitts, 1999 WL 144744, at *6; Bethany v. State, 565 S.W.2d

900, 903 (Tenn. Crim. App. 1978); Henley v. State, 489 S.W.2d 53, 55-56 (Tenn. Crim. App.

1976).

7

Of note, while the Court in Monts was the first to label this as an exception to the general test for

determining whether a witness is an accomplice, Monts itself was a murder case that did not involve a sex

crime, a minor victim, or a minor accomplice. See id. at 36-38, 42-43.

8

While following the general rule that minor victims of sex offenses may qualify as accomplices,

Tennessee courts have long held that both minor and adult victims of forcible or coercive sex offenses, such

as simple rape, do not qualify as accomplices and are not subject to any corroboration requirement. See

McKnight, 900 S.W.2d at 48 (citing Montgomery v. State, 556 S.W.2d 559, 560 (Tenn. Crim. App. 1977)).

-11-

In State v. Garner, the Court of Criminal Appeals applied this reasoning to statutory

rape, classifying a consenting victim as an accomplice to the crime, even though the minor

victim could not have been indicted for the crime.9 No. 03C01-9205-CR-00178, 1993 WL

3474, at *2-3 (Tenn. Crim. App. Jan. 11, 1993); accord State v. Anderson, No. M2008-

01377-CCA-R3-CD, 2009 WL 3103790, at *7 (Tenn. Crim. App. Sept. 28, 2009); State v.

Smith, No. M2004-01457-CCA-R3-CD, 2005 WL 1541874, at *10 (Tenn. Crim. App. June

29, 2005); State v. Rainey, No. M2001-01870-CCA-R3-CD, 2003 WL 21302993, at *10-11

(Tenn. Crim. App. June 6, 2003); State v. Ballinger, 93 S.W.3d 881, 887-88 (Tenn. Crim.

App. 2001); State v. Reeves, No. 01C01-9711-CR-00515, 1999 WL 155926, at *4 (Tenn.

Crim. App. Mar. 23, 1999); McKnight, 900 S.W.2d at 48-49. The Defendant asks this Court

to uphold the rule followed in each of these cases and to hold that the State failed to offer

proof adequately corroborating the testimony of the victim.

1. Legislative Argument

The Defendant first argues that we should require corroborative evidence in this

instance based on a statutory provision, enacted in 1991, which provides that

[i]f the alleged victim of a sexual penetration or sexual contact within the

meaning of § 39-13-501 is less than thirteen (13) years of age, the victim shall,

regardless of consent, not be considered to be an accomplice to sexual

penetration or sexual contact, and no corroboration of the alleged victim’s

testimony shall be required to secure a conviction if corroboration is necessary

solely because the alleged victim consented.

Act of Apr. 29, 1991, ch. 719, § 1, 1991 Tenn. Pub. Acts 430 (codified at Tenn. Code Ann.

§ 40-17-121). The Defendant asserts that because the General Assembly limited the scope

of this provision to apply to sex crime victims twelve years and younger that the testimony

of victims who are between thirteen to seventeen years old continues to require

corroboration. As further support for his claim, the Defendant points out that our General

Assembly at one time recognized as a defense to statutory rape that “the victim was . . . at

least fourteen (14) years of age and had, prior to the time of the alleged offense engaged

promiscuously in sexual penetration.” Tenn. Code Ann. § 39-13-506(b) (1991), repealed by

Act of Apr. 8, 1994, ch. 719, 1994 Tenn. Pub. Acts 410. While conceding that this statute

9

Garner appears to be the first appellate decision in this state applying the accomplice corroboration

rule to a victim of statutory rape. While earlier decisions had required corroboration of the testimony of

statutory rape victims, they did not classify the victims as accomplices, but rather required corroboration

based on a statute, no longer in effect, which required corroboration of a victim’s testimony to sustain a

charge of abuse of a female under the age of twenty-one. See, e.g., Bledsoe v. State, 185 S.W. 1073, 1073

(Tenn. 1916) (citing Act of Apr. 13, 1911, ch. 36, § 1, 1911 Tenn. Pub. Acts 70, 70).

-12-

was repealed in 1994, the Defendant maintains that the repeal “did not eradicate the

requirement that the testimony of an accuser who factually consented to the prohibited

conduct must be corroborated.”

Legislative inaction is ordinarily irrelevant to the interpretation of existing statutes.

See House v. Estate of Edmondson, 245 S.W.3d 372, 387 (Tenn. 2008). This Court has held

that “[s]ilence in a statute is not affirmative law” and “does not preclude application of the

common law.” Id.; Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 519

(Tenn. 2005); see also United States v. Craft, 535 U.S. 274, 287 (2002) (holding that

congressional inaction lacks persuasive significance for purposes of statutory interpretation);

Broad. Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762, 774 (6th Cir. 2005) (noting

that courts should not assume that any particular cause explains congressional inaction). As

is relevant here, the General Assembly has remained silent as to whether victims of sex

offenses who are minors from thirteen to seventeen years of age may be considered

accomplices whose testimony must be corroborated. That silence, in our assessment, does

not require that victims in that age grouping be considered accomplices. We decline,

therefore, to read either section 40-17-121 or the repeal of the statutory promiscuity defense

as the codification of a corroboration requirement for victims of statutory rape within that age

range. Moreover, because the enactment of section 40-17-121 predated the earliest judicial

application of the corroboration requirement to a victim of statutory rape, see Garner, 1993

WL 3474, at *2-3, it cannot be viewed as a legislative ratification of the corroboration

requirement for victims of that offense. In our view, therefore, the terms of Tennessee Code

Annotated section 40-17-121 and the repeal of the promiscuity defense to statutory rape do

not preclude our consideration of whether, as a matter of common law, the testimony of a

victim of statutory rape requires corroboration.

2. Common Law Argument

The Defendant next asks us to endorse the minority view, find that the victim of a

statutory rape should be classified as an accomplice, and hold that the State failed to provide

the requisite corroboration. Most state courts, however, have adopted what we now believe

to be a preferable course. The Texas Court of Appeals, for example, has ruled that a victim

of statutory rape is never considered an accomplice whose testimony must be corroborated.

Tyrone v. State, 854 S.W.2d 153, 156 (Tex. App. 1993). Tyrone was convicted of the

statutory rape of his fifteen-year-old step-granddaughter. Id. at 154-55. On appeal, he

challenged the sufficiency of the convicting evidence because the testimony of the victim

lacked independent corroboration. Id. Tyrone relied on Texas Rule of Criminal Procedure

38.14, which required the corroboration of an accomplice’s testimony, and an earlier opinion

of the Texas Court of Criminal Appeals holding that “a female who consents to or voluntarily

enters into an incestuous intercourse is an accomplice witness.” Brown v. State, 657 S.W.2d

117, 118 (Tex. Crim. App. 1983). The Texas court distinguished incest from statutory rape,

-13-

holding that a victim of statutory rape, always being a minor, “cannot legally consent and is

not an accomplice.” Tyrone, 854 S.W.2d at 156.

Many state courts, like the Texas Court of Appeals, have held that minor victims of

statutory rape should not be considered accomplices because the law does not grant them the

capacity to legally consent to prohibited sexual acts. See, e.g., Durham v. State, 250 So. 2d

693, 695 (Ala. Crim. App. 1969) (“[A] girl under sixteen years of age cannot give legal

assent. Therefore, she cannot be particeps criminis in statutory rape and, consequently, no

corroboration is necessary.”), abrogated on other grounds by Anonymous v. State, 507 So.

2d 972, 975 (Ala. 1987); State v. Pollock, 114 P.2d 249, 250 (Ariz. 1941) (holding that a

“conviction can be had upon the uncorroborated testimony of the prosecutrix unless her story

is physically impossible, or so incredible that no reasonable man could believe it”); People

v. Kemp, 34 P.2d 502, 504 (Cal. Dist. Ct. App. 1934) (holding that corroboration of a

victim’s testimony was not required because, as a minor, she could not consent to prohibited

sexual acts or be considered an accomplice).

Today, we join the vast majority of states that have addressed the issue 10 by rejecting

the application of the accomplice corroboration rule to victims of statutory rape. As a matter

of law, a minor is indeed incapable of consenting to a statutory rape. See McKnight, 900

S.W.2d at 48 (noting that consent is not a defense to statutory rape); see also Phillipson v.

State, 943 So. 2d 670, 672 (Miss. 2006) (“[A] minor that fits the criteria [for statutory rape]

does not have the legal power to consent.”). Moreover, as observed by our Court of Criminal

Appeals in this case, it is impossible for a victim of statutory rape to meet the traditional test

for determining accomplice status, which is whether the alleged accomplice could be indicted

for the same offense charged against the defendant. See Collier, 2012 WL 2849495, at *7

10

In addition to the states listed above, other jurisdictions that do not apply an accomplice

corroboration requirement to victims of statutory rape include Alaska, Arkansas, the District of Columbia,

Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Missouri, New Hampshire, North Dakota,

Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Washington, and Wisconsin. See Vitauts M. Gulbis,

Annotation, Modern Status of Rule Regarding Necessity for Corroboration of Victim’s Testimony in

Prosecution for Sexual Offense, 31 A.L.R. 4th 120 § 4[a] (1984 & Supp. 2012). Jurisdictions that maintain

some form of a corroboration requirement for victims of statutory rape include Georgia, Mississippi, and

New York. See Agan v. State, 737 S.E.2d 347, 348-49 (Ga. Ct. App. 2013) (citing Ga. Code Ann. § 16-6-

3(a)); Anderson v. State, 62 So. 3d 927, 943 (Miss. 2011) (requiring corroboration only if the victim’s

testimony has been discredited or contradicted by other credible evidence); People v. Novack, 622 N.Y.S.2d

783, 784 (N.Y. App. Div. 1995) (citing N.Y. Penal Law § 130.16) (requiring corroboration in sex offense

case involving intellectually disabled victim). But see People v. Lamphier, 754 N.Y.S.2d 482, 484 (N.Y.

App. Div. 2003) (“[T]here is no requirement of corroboration of the victim’s sworn testimony in the

prosecution of a sex act to which the victim is deemed incapable of consenting based on his or her age.”).

-14-

(citing Pitts, 1999 WL 144744, at *5 n.7). Applying this standard, a statutory rape victim can

never be charged in the same offense because all forms of statutory rape require the

defendant to be a specified number of years older than the minor victim. See Tenn. Code

Ann. § 39-13-506(a)–(c).

Courts in our state have required corroboration based on an exception to the general

accomplice rule, which applies “in sex cases even where the accomplice is a child of such

tender years as to be incapable of consenting to such crime.” Scott, 338 S.W.2d at 583. In

our view, no defensible reason exists to justify our continued recognition of this exception.

This Court suggested in Sherrill that the basis for the exception was that “children of tender

years have great imagination and do not appreciate the seriousness of their testimony and

thus it is easier for them to fabricate a tale.” 321 S.W.2d at 815. The Court in Sherrill also

cited Ball v. State, which included a lengthy discussion of how courts should evaluate the

testimony of young children. See 219 S.W.2d 166, 167-68 (Tenn. 1949). These

considerations no longer carry the day. First, as courts and commentators alike have noted,

“there is no evidence showing that sex crime charges are frequently falsified or that sexual

victims are an inherently unreliable class whose testimony should not be believed in the

absence of corroboration.” State v. Byers, 627 P.2d 788, 790 (Idaho 1981) (citing People v.

Rincon-Pineda, 538 P.2d 247, 257 (Cal. 1975); Note, The Rape Corroboration Requirement:

Repeal Not Reform, 81 Yale L.J. 1365, 1373-78 (1972)). Second, unlike Sherrill and Ball,

which involved the testimony of younger children, our holding in this case pertains

exclusively to victims of sex offenses who are thirteen to seventeen years of age, as the

corroboration requirement has been legislatively abolished for younger victims. Tenn. Code

Ann. § 40-17-121. Third, and finally, it has long been the rule in our state that the

uncorroborated testimony of a minor victim may be sufficient to sustain a conviction for

forcible or coercive sex offenses such as simple rape. See McKnight, 900 S.W.2d at 48

(citing Montgomery, 556 S.W.2d at 560). We find no reason to impose a more demanding

standard for other sex offenses, such as statutory rape, where minor victims are by definition

excluded from being charged. See Gary v. United States, 499 A.2d 815, 833 (D.C. 1985)

(“[T]here [is no] logical reason to raise barriers to the jury evaluation of the credibility of a

minor in a sex offense where we do not require it in other situations.”).

“The power of this Court to overrule former decisions ‘is very sparingly exercised and

only when the reason is compelling.’” In re Estate of McFarland, 167 S.W.3d 299, 306

(Tenn. 2005) (quoting Edingbourgh v. Sears, Roebuck & Co., 337 S.W.2d 13, 14 (Tenn.

1960)). In this instance, we find that there is no valid basis to uphold the minority view,

which needlessly and improperly frustrates the prosecution of sex offenses involving minor

victims. See United States v. Sheppard, 569 F.2d 114, 118 (D.C. Cir. 1977) (“The

corroboration requirement poses a potentially severe obstacle to legitimate convictions for

sex offenses. Operation of the rule serves to foreclose jury consideration of cases in which

-15-

a highly credible complainant prosecutes charges, on the basis of her testimony alone, against

a defendant whose account of the events is clearly less credible.” (footnote omitted)); Byers,

627 P.2d at 790 (observing that unnecessarily requiring corroboration of victims’ testimony

“prevents both the reporting and the successful prosecuting of sex crimes”). Accordingly,

we overrule all prior Tennessee decisions recognizing the exception that requires

corroboration of the testimony of a minor victim of a sex offense despite the fact that the

minor could not be charged with the offense. See, e.g., Monts, 379 S.W.2d at 43; Scott, 338

S.W.2d at 583; Sherrill, 321 S.W.2d at 815. Furthermore, because a victim of statutory rape

cannot be charged with that offense, and thus does not qualify as an accomplice under the

general accomplice rule, we specifically overrule all decisions of our Court of Criminal

Appeals requiring corroboration of the testimony of victims of statutory rape. See, e.g.,

Anderson, 2009 WL 3103790, at *7; Smith, 2005 WL 1541874, at *10; Rainey, 2003 WL

21302993, at *10-11; Ballinger, 93 S.W.3d at 887-88; Reeves, 1999 WL 155926, at *4;

McKnight, 900 S.W.2d at 48-49; Garner, 1993 WL 3474, at *2-3.

Finally, having determined that no corroboration of the victim’s testimony is required,

we conclude that the evidence presented at trial was sufficient for a rational trier of fact to

find the essential elements of aggravated statutory rape beyond a reasonable doubt. See

Davis, 354 S.W.3d at 729. The testimony of the victim, along with the other evidence

adduced at trial, demonstrated multiple incidents of sexual penetration between the fourteen-

year-old victim and the forty-two-year-old Defendant on September 5 and 6, 2008, which is

plainly sufficient to establish the elements of aggravated statutory rape. See Tenn. Code

Ann. § 39-13-506(c).

III. Conclusion

In summary, the Defendant has waived any issue as to the denial of his motion for a

judgment of acquittal made at the close of the State’s proof, and the evidence presented at

trial—including the testimony of the victim, which need not be corroborated—is sufficient

to sustain the Defendant’s conviction for aggravated statutory rape. The judgment of the

Court of Criminal Appeals is, therefore, affirmed. It appearing that the Defendant is

indigent, costs are adjudged against the State.

______________________________

GARY R. WADE, CHIEF JUSTICE

-16-