State of Tennessee v. Nancy Blue

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 5, 2008

STATE OF TENNESSEE v. NANCY BLUE

Appeal from the Circuit Court for Haywood County

No. 5797 Clayburn Peeples, Judge

No. W2008-00187-CCA-R3-CD - Filed April 23, 2009

The defendant, Nancy Blue, appeals as of right her jury convictions for two counts of rape of a child

and two counts of incest. She received sentences of twenty-five years for each rape of a child

conviction and six years for each incest conviction.1 The rape of a child sentences were ordered to

be served consecutively and the incest convictions were ordered to be served concurrently, for a total

effective sentence of fifty years. The defendant argues that the evidence is insufficient to support

her convictions and that the trial court imposed an excessive sentence both in length and manner of

service. Following our review, we affirm the convictions but remand for the entry of modified and

corrected judgments consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit are Affirmed in Part;

Reversed in Part; Case Remanded.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL , and

NORMA MCGEE OGLE , JJ., joined.

Tom W. Crider, District Public Defender; and J. Diane Blount, Assistant District Public Defender,

attorneys for appellant, Nancy Blue.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General;

Garry Brown, District Attorney General; Jerald Campbell and Hal Dorsey, Assistant District

Attorneys General, attorneys for appellee, State of Tennessee.

OPINION

1

We note that the judgment for Count Six erroneously reflects a sentence of five years but the transcript

clearly reflects that the trial court imposed sentences of six years for each count of incest. When a discrepancy exists

between an order in the technical record and the transcript, the transcript controls. State v. Moore, 814 S.W.2d 381, 383

(Tenn. Crim. App. 1991).

The defendant’s convictions arose from reports that she sexually abused L.R. and R.B., her

two oldest sons.2 The indictments allege a wide period of time during which the defendant

committed the rape of a child offenses – January 1, 1999 until April 4, 2005 for L.R. and January

1, 1999 until March 9, 2004 for R.B.. The State’s proof at trial consistently solely of the testimony

of the victims. The defendant presented no proof.

L.R., fifteen years old at the time of trial, testified that his mother began “sexually raping”

him at the age of seven with the last incident occurring sometime shortly after his thirteenth birthday

on April 5, 2005, but before the end of the school year. He stated that his mother would often

perform oral sex on him and force him to perform oral sex on her. He testified that he had penile

intercourse with his mother also. He recalled that his mother also raped his older brother, R.B., but

not as often. He testified that his mother raped him two to four times each month and that he had

lost count of how many times it had occurred. L.R. initially did not realize it was wrong; once when

he told the defendant he did not want to participate, she counted to three and threatened to whip him

if he did not obey her. He stated that he often saw his mother having sex with her boyfriends and

that she had watched pornographic videos with him and his brother. He admitted that he reported

the abuse to his grandmother on December 19, 2005, after his mother threatened to whip him about

some jewelry she accused him of stealing. However, L.R. explained that he wanted to move out of

the defendant’s house because “I didn’t like her. . . . Me and my brothers made a team and we cared

for our little brother and we stayed in the house most of the time, and I just got tired of it and I didn’t

want to live with her anymore. . . . After that whipping I kn[e]w that it was going to happen over and

over again and that she was going to rape me over and over again even if – even after I said I didn’t

want to do it.” L.R. also testified that he heard the defendant admit the abuse to his grandmother and

aunt.

R.B., sixteen years old at the time of trial, testified that he had penile intercourse with his

mother. He also stated that she performed oral sex on him and forced him to perform oral sex on

her. He recalled that the abuse began when he was nine or ten years old. He stated that they had sex

two or three times. The abuse stopped when he and his brother told their grandmother.

Based upon this evidence, the jury found the defendant guilty of rape of a child, rape, and

incest regarding offenses committed against L.R.. The jury also found the defendant guilty of rape

of a child and incest regarding offenses committed against R.B..

ANALYSIS

Sufficiency of the Evidence

The defendant argues that the evidence is insufficient to support her convictions for rape of

a child. Specifically, she argues that “[e]xcept for their testimony, there is no evidence in the record

to establish that the defendant had incestuous relations with these two boys who both testified that

they were unhappy with their home situation and wanted to move from their mother’s home.” The

2

L.R. testified that his birthdate is April 5, 1992. R.B. testified that his birthdate is March 10, 1991.

-2-

State argues that the proof establishes the defendant’s guilt for these offenses. Following our review,

we agree with the State.

An appellate court’s 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) (emphasis

in original). The appellate court does not reweigh the evidence; rather, it presumes 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 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and

the weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes the presumption of innocence and replaces

it with a presumption of guilt, and on appeal the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). This standard applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13

S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

Initially we note that the judgments reflect that the trial court merged the rape conviction into

the incest conviction with respect to the offenses committed against L.R.. However, because these

offenses are legally and factually distinct, we conclude that the trial court erroneously merged the

rape conviction into the incest conviction. State v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982);

William Hackworth v. State, M2003-02148-CCA-R3-PC, 2004WL1686610, at *3 (Tenn. Crim.

App. July 28, 2004) (incest is not a lesser included offense of rape; both convictions are

appropriate). Accordingly, upon remand the trial court shall enter a judgment reflecting the jury’s

verdict in Count Two convicting the defendant of rape, a Class B felony.

A conviction for rape of a child requires proof beyond a reasonable doubt that (1) the

defendant unlawfully sexually penetrated the victim, (2) who was less than thirteen years old, and

that (3) the defendant acted intentionally, knowingly, or recklessly. Tenn. Code Ann. § 39-13-522

(2003). Sexual penetration is defined, in relevant part, as an “sexual intercourse, cunnilingus, [or]

fellatio.” Tenn. Code Ann. § 39-13-501(7). Essentially, the defendant’s argument on appeal asks

this court to assess the credibility of the victims’ testimony and conclude that the offenses did not

occur. As stated previously, this is something we are precluded from doing. The jury chose to

accredit the victims’ testimony. The requisite elements of rape of a child are established by the

victims’ testimony. Likewise, the requisite elements of rape are established by L.R.’s testimony that

the last time that the defendant forced him to have sex was shortly after his thirteenth birthday before

the end of the school year. Additionally, since the defendant has not contested that she is the

biological mother of the victims, the requisite elements of incest are also established. Therefore, we

conclude that the evidence is sufficient to support the convictions.

Sentencing

-3-

The trial court increased the defendant’s sentences for rape of a child to the maximum

twenty-five years based upon its application of enhancement factors involving the victims’

particular vulnerability due to age and that the crime was committed to gratify the defendant’s desire

for pleasure or excitement. Tenn. Code Ann. § 40-35-114(4) and (7). The defendant argues that the

trial court erroneously applied these factors because they were not supported by the evidence. The

State asserts that the trial court appropriately applied the enhancement factors and that the maximum

sentence was warranted.

An appellate court’s review of sentencing is de novo on the record with a presumption that

the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2006). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the defendant

to show that the sentence is improper. This means that if the trial court followed the statutory

sentencing procedure, made findings of fact that are adequately supported in the record, and gave

due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate review,

[T]he trial court must place on the record its reasons for arriving at the final

sentencing decision, identify the mitigating and enhancement factors found,

state the specific facts supporting each enhancement factor found, and

articulate how the mitigating and enhancement factors have been evaluated

and balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann. § 40-35-

210(e) (2006).

In conducting its de novo review, the appellate court must consider (1) the evidence, if any,

received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of

sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the

criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the

defendant made on his own behalf, (7) the potential for rehabilitation or treatment, and (8) any

statistical data provided by the Administrative Office of the Courts regarding sentencing for similar

offenses in Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see also Ashby, 823

S.W.2d at 168; Moss, 727 S.W.2d at 236-37.

The defendant stands convicted of offenses that all occurred before the 2005 revision to the

Criminal Sentencing Reform Act. At the onset, we note that both parties failed to recognize that the

trial court’s increase of the defendant’s sentences beyond the presumptive minimum violated our

-4-

supreme court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) wherein the court held

that:

the [1989 Criminal Sentencing] Reform Act failed to satisfy the Sixth Amendment

insofar as it allowed a presumptive sentence to be enhanced based on judicially

determined facts. That is, to the extent the Reform Act permitted enhancement based

on judicially determined facts other than the fact of a prior conviction, it violated the

Sixth Amendment as interpreted by the Supreme Court in Apprendi [v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000)], Blakely [v. Washington, 542 U.S. 296, 125

S. Ct. 2531 (2004)] and Cunningham [v. California, 549 U.S. 270, 127 S. Ct. 856 (2007)].

Gomez, 239 S.W.3d at 740. Having concluded that the enhancement of the defendant’s sentences

beyond the presumptive minimum based upon judicially determined facts violated the defendant’s

Sixth Amendment rights, we need not address the propriety of the trial court’s application of

enhancement factors. Therefore, the defendant’s sentences for each count of rape of a child should

be modified to the presumptive minimum sentence of twenty years. We also note that the defendant

makes no argument regarding the application of enhancement factors to the defendant’s sentences

for incest. However, based upon our conclusion that the rape of a child sentences violated Gomez,

we similarly conclude that the sentences for each count of incest should be modified to the

presumptive minimum sentence of three years. Likewise, we instruct the trial court to be mindful

of Gomez in its determination of an appropriate sentence for the rape case, Count Two, that this

court has directed to be reinstated upon remand.

Consecutive Sentencing

The trial court ordered the defendant’s twenty-five year sentences for rape of a child to be

served consecutively to one another with the sentences for incest to be served concurrently to the

rape of a child sentences, resulting in an effective sentence of fifty years. The defendant argues that

the imposition of consecutive sentences was improper. We disagree.

Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which

states, in pertinent part, that the trial court may order sentences to run consecutively if it finds by a

preponderance of the evidence that “[t]he defendant is convicted of two or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating circumstances arising from

the relationship between the defendant and victim or victims, the time span of defendant’s

undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual,

physical and mental damage to the victim or victims.” Tenn. Code Ann. § 40-35-115(b)(5) (2006).

The trial court is required to “specifically recite the reasons” behind imposition of a consecutive

sentence. See Tenn. R. Crim. P. 32(c)(1); see, e.g., State v. Palmer, 10 S.W.3d 638, 647-48 (Tenn.

Crim. App. 1999) (noting the requirements of Rule 32(c)(1) for purposes of consecutive sentencing).

In imposing the consecutive sentences, the trial court stated that “it is the public’s desire through the

Legislature that in cases like this the sentences run consecutively and so I decree that they should do

that.” We conclude that, although the defendant was convicted of two offenses involving the sexual

abuse of minors, the trial court’s findings were insufficient regarding its consideration of the

-5-

circumstances listed in Tennessee Code Annotated section 40-35-115(b). However, the record in

this case reveals that the two victims, ages seven and nine when these offenses began, were raped

repeatedly by their mother for a period of over five years. The victim impact statements reflect that

the victims suffered significant mental stress due to the abuse, affecting their school work and

behavior. The scope of the sexual activity involving the defendant’s younger son, L.R., was

particularly extensive and prolific. Thus, the trial court’s imposition of consecutive sentences in this

case was proper.

However, our review of the record reveals that the judgments do not correctly reflect the trial

court’s imposition of consecutive sentences. When a discrepancy exists between an order in the

technical record and the transcript, the transcript controls. State v. Moore, 814 S.W.2d 381, 383

(Tenn. Crim. App. 1991). Upon remand, the judgments shall be corrected as follows:

Count One Rape of a Child 20 years concurrent with Count Three

consecutive to Counts Four and Six

Count Three Incest 3 years concurrent with Count One

consecutive to Counts Four and Six

Count Four Rape of a Child 20 years concurrent with Count Six

consecutive to Counts One and Three

Count Six Incest 3 years concurrent with Count Four

consecutive to Counts One and Three

CONCLUSION

In consideration of the record and arguments of counsel, the judgment of the trial court is

affirmed in part and reversed in part. We remand the case for the correction of judgments to reflect

sentences of twenty years for each rape of a child conviction (Counts One and Four) and three years

for each incest conviction (Counts Three and Six); we affirm the trial court’s imposition of

consecutive sentences but order correction of the judgments to reflect properly the sentences

imposed by the trial court as explained above; we reverse the trial court’s merger of the rape

conviction into the incest conviction and order that a judgment of conviction be entered reflecting

the jury’s verdict in Count Two for rape, a Class B felony; relative to the rape conviction in Count

Two, the case is remanded for the trial court to determine the appropriate sentence with consideration

of Blakely and Gomez and appropriate manner of service.

___________________________________

D. KELLY THOMAS, JR., JUDGE

-6-