The opinion
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
FOR PUBLICATION
STATE OF TENNESSEE, ) Filed: June 21, 1999
)
Plaintiff/Appellee, ) MCMINN COUNTY June 21, 1999
)
v. ) Hon. Carroll L. Ross,
) Judge
J. C. MEYER, )
Cecil Crowson, Jr.
) Supreme Court
Defendant/Appellant. ) No. 03-S01-9812-CR-00140
Appellate Court Clerk
FOR APPELLANT: FOR APPELLEE:
Charles M. Corn Michael E. Moore
District Public Defender Solicitor General
Cleveland, TN
Elizabeth B. Marney
Assistant Attorney General
Nashville, Tennessee
Jerry N. Estes
District Attorney General
Tenth Judicial District
Richard Newman
Assistant District Attorney
Athens, TN
OPINION
TRIAL COURT AND
COURT OF CRIMINAL APPEALS REVERSED;
CASE REMANDED TO TRIAL COURT. DROWOTA, J.
In this appeal, we consider whether erroneous instructions read to the jury
amounted to harmless error. The trial court correctly instructed the jury that if the
Defendant were convicted of rape of a child, his sentence would range from twenty-
five to forty years for each count. However, the trial court erroneously instructed the
jury that a person convicted of rape of a child would have to serve 5.73 years before
his or her earliest release eligibility date, when in fact a person so convicted must
serve the entire sentence undiminished by any sentence reduction credits. After he
was convicted of two counts of rape of a child, the Defendant appealed to the Court
of Criminal Appeals. The Court of Criminal Appeals found that, although the jury
instruction was incorrect, the error was harmless. On appeal to this Court, the State
now concedes that the trial court’s error was, in fact, harmful. We agree and remand
this case to the trial court for a new trial.
FACTS & PROCEDURAL HISTORY
In 1996, the Defendant was charged with four counts of rape of a child,
stemming from events occurring between January and May 1995, in which the
Defendant allegedly vaginally and orally raped his girlfriend’s eight-year-old child.
Two counts were later dismissed and the Defendant was tried in McMinn County in
October of 1996. Following closing arguments, the Defendant requested the trial
court to instruct the jury on possible penalties for the charged offense as well as
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lesser included offenses. See Tenn. Code Ann. §§ 40-35-201(b) (Supp. 1995). 1 The
jury was charged as follows:
We’re gonna talk now about the range of punishment of the
allegations here today. The jury will not attempt to fix any sentence.
However, you may weigh and consider the meaning of a sentence of
imprisonment, and set a fine in the amounts indicated below, if you
wish to do so. The range of punishment for the crimes involved herein
are as follows:
25 to 40 years in the state penitentiary for the crime of rape of
a child, and a fine of some amount not exceeding $50,000.
12 to 20 years in the state penitentiary for the crime of
aggravated sexual battery, and a fine in some amount not exceeding
$25,000.
You are further informed that the minimum number of years a
person sentenced to imprisonment for the offense of rape of a child
must serve before reaching the earliest release eligibility date is 5.73
years. You are further informed that the minimum number of years a
person sentenced to imprisonment for the offense of aggravated sexual
battery must serve before reaching the earliest release eligibility date
is 2.75 years. Whether a defendant is actually released from
incarceration on the date when first eligible for release is a
discretionary decision made by the Board of Parole for the State of
Tennessee and is based on many factors. The Board of Parole has
the authority to require a defendant to serve the entire sentence
imposed by the Court.
The jury convicted the Defendant of two counts of rape of a child, and the trial court
denied the Defendant’s motion for a new trial.
The Defendant raised several issues on appeal to the Court of Criminal
Appeals, including the argument that the trial court erred by instructing the jury that
1
This prov ision p rovid es th at for all non -cap ital crim inal ca ses , if requested, the trial court “sha ll
cha rge th e pos sible penalties for the offense charged and all lesser included offenses.” Tenn. Code
Ann. § 40-35-201(b)(1). This instruction “shall include an approximate calculation of the minimum
number of years a p erson s entenc ed to im prisonm ent . . . must serve befo re rea chin g suc h per son ’s
earliest relea se eligibility date.” Id. § 40-35-201(b)(2)(A)(i). This provision was recently repealed by
the General Assembly in 1998, so that for all non-capital criminal trials subsequent to May 19, 1998,
the “judge shall not instruct the jury, nor s hall the attorn eys be pe rmitted to comment at any time to the
jury, on possible penalties for the offense charged nor all lesser included offenses.” 1998 Tenn. Pub.
Acts ch. 1041, § 1; Tenn. C ode Ann. § 40-35-201 (Supp. 1998).
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the Defendant would be eligible for release following a conviction of child rape upon
serving 5.73 years of his sentence. Despite finding that the trial judge’s instruction
was incorrect, the Court of Criminal Appeals found the error to be harmless due to
“substantial” evidence in support of a conviction. Holding that the other issues raised
by the Defendant were without merit, the Court of Criminal Appeals affirmed the
judgment of the trial court. Subsequently, the Defendant appealed to this Court,
raising the sole contention that the trial court’s erroneous jury charge constituted
reversible error and, thus, the Defendant is entitled to a new trial.
DISCUSSION
It is beyond dispute that the trial court erred by instructing the jury that the
Defendant, if convicted of one count of rape of a child, would be eligible for release
after serving 5.73 years in prison. Tennessee Code Annotated §§ 40-35-501(i)(3)
(Supp. 1995) and 39-13-523(b) (Supp. 1995) provide that a defendant convicted of
child rape is not eligible for early release and, thus, must serve the entire sentence
imposed. Relying on our decision in State v. Cook, 816 S.W.2d 322 (Tenn. 1991),
the State now concedes that the trial court’s erroneous jury instruction constitutes
reversible error and that the defendant is entitled to a new trial. We agree.
In Cook, the defendant, charged with multiple counts of aggravated rape and
aggravated sexual battery, requested the trial judge to instruct the jury on possible
punishment for the charged offenses and lesser included offenses in accordance with
Tenn. Code Ann. § 40-35-201(b). The trial court erroneously instructed the jury with
regard to Range I sentences when, in fact, more severe Range II sentences were
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applicable. The defendant was convicted of several counts, the trial court imposed
a sentence in accordance with Range I, and both parties appealed. The Court of
Criminal Appeals affirmed the convictions but ordered a new sentencing hearing,
agreeing with the State that the trial judge should have sentenced the defendant as
a Range II offender. Cook appealed to this Court, contending that the CCA erred in
ordering that he be sentenced as a Range II offender, when the jury was only
instructed of his possible punishments as a Range I offender. 2 We agreed with the
defendant and ordered a new trial. In so holding, we recognized that no
constitutional error was involved, that a statutory right deprivation was the basis of
error, and that “actual deprivation would occur upon remand for resentencing, when,
under the Court of Criminal Appeals' judgment, the defendant would be sentenced
to punishment not known to or contemplated by the convicting jurors.” Cook, 816
S.W.2d at 326. Accordingly, we reversed Cook’s convictions and remanded for a
new trial, stating that “whatever rights or benefits the Legislature had in mind for the
defendant when it passed Tenn. Code Ann. § 40-35-201(b) would be lost if the
defendant were to be sentenced to punishments greater than what the jury finding
guilt was instructed would be imposed.” Id. at 327.
CONCLUSION
In light of our holding in Cook, we agree with the Defendant and the State that
the Defendant was prejudiced by the trial court’s erroneous instruction. It is
2
An amicus curiae party in Cook argued that “if the jury is mistakenly instructed that a
con viction will res ult in a sh orter sent enc e tha n in fa ct will be imposed, the likelihood of conviction of
the crime charged in the indictment increases and the chance that the jury will convict of a lesser
included offense decrease s comm ensurately.” Cook, 816 S.W .2d at 325 .
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conceivable that the Defendant would have been convicted of a lesser offense had
the jury known that the Defendant would not be eligible for early release.
Accordingly, we reverse the decision of the Court of Criminal Appeals which found
the trial court’s error to be harmless, see Tenn. R. App. P. 36(b), and remand this
case to the trial court for a new trial.
Costs on appeal are taxed to the State of Tennessee.
_____________________________________
FRANK F. DROWOTA, III,
JUSTICE
Concur:
Anderson, C.J.
Birch, Holder, Barker, JJ.
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