State of Tennessee v. Charles Roy Cole

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 7, 2001

STATE OF TENNESSEE v. CHARLES ROY COLE

Direct Appeal from the Circuit Court for Madison County

No. 99-174 Roy B. Morgan, Jr., Judge

No. W2000-01129-CCA-R3-CD - Filed May 9, 2001

The defendant, Charles Roy Cole, was charged with aggravated assault and rape of a child. He was

acquitted on the first charge and convicted on the second. The trial court imposed a sentence of 20

years. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that

the trial court erred in its jury instructions regarding admissions against interest. The judgment is

affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA

MCGEE OGLE , JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Charles Roy Cole.

Paul G. Summers, Attorney General & Reporter; Laura E. McMullen, Assistant Attorney General;

and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The victim, who was approximately 17 years old at the time of trial, lived with her mother,

Paulette Cole, and the defendant, her stepfather. She and her mother had resided with the defendant

since she was five months old. The victim had two half-sisters, ages 14 and 15, and a half-brother,

age 12. When the victim was 15 years of age, she developed a relationship with Mike Patrick, age

26.

Because the victim admitted to skipping school and using illegal drugs and because they

suspected that Patrick was a drug dealer, the victim's mother and stepfather ordered the victim to

terminate the relationship. Afterward, the victim became distraught and threatened suicide. On

October 6, 1998, she wrote a letter containing the following statements:

I cry so hard. I cry when I'm alone because I love somebody and they took it away

. . . . So I'm going to take away from them what they took from me.

On October 26, 1998, almost three weeks after writing the letter, the victim returned home

from school and refused to eat. That night, Mr. and Mrs. Cole admitted her to the Pathways Hospital

for drug testing. While there, the victim told Jeff Gray, a crisis counselor, that the defendant had

raped her some years before.

At trial, the victim provided the details of the incident. She testified that the defendant came

to her room on the night of November 13, 1993, her eleventh birthday. She stated that the defendant

woke her, directed her to the living room, and then told her to take off her clothes. She testified that

the defendant then forced her to have sexual intercourse and, afterwards, threatened to kill her if she

told anyone. The victim also testified that the defendant held a knife to her throat and threatened her

when he learned that she skipped school to be with another young man.

The victim testified that she had never revealed the incident before talking to Gray. She

explained that she was afraid of how her stepfather would react. After talking with Gray, the victim

returned to her mother and stepfather. She claimed that her mother overheard the conversation

between her, her stepfather, and Gray concerning the rape.

The victim also explained that her parents learned about her relationship with Patrick when

she "skipped school one day . . . went over to his house, and . . . didn't come back home until . . . that

next morning. . . ." She contended that she went to Pathways to have a drug screen to demonstrate

to her mother that she was not using illegal drugs anymore.

During cross-examination, the victim was asked why she had said nothing about the incidents

until Mr. and Mrs. Cole had learned of her truancy and directed that her relationship with Patrick be

terminated. At that point, the victim answered "No, he hurted me. He had sex with me. He came

in my room. When I was five years old, he took me out of my room." There was no

contemporaneous objection. During a bench conference, however, defense counsel later inquired

whether the victim's answer had been responsive to the question and objected to the state's efforts

to examine the victim further. The trial court prohibited further reference, concluding the likely

prejudice outweighed any probative value.

Gray testified that he met with the victim and her mother on October 26. He recalled that the

victim reported that she had been raped by her stepfather on one occasion and that he had held a

knife to her throat on another. Gray stated that he then had a conversation with the defendant in the

waiting room in the presence of the victim concerning the victim's accusation of rape. Gray testified

that he asked the defendant if it was true, to which the defendant answered, "Yes, I need some help."

Gray recalled that he denied ever holding a knife to the victim's throat. Gray then testified that he

asked the defendant about the rape on more than one occasion and that each time the defendant

answered affirmatively.

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Officer Alan Randolph of the Jackson Police Department was dispatched to the hospital to

"basically keep an eye" on the defendant. Officer Randolph recalled that the defendant, who

appeared distraught, approached him and said, "Hello," "I'm sorry," and "I need some help." The

officer recalled that the victim's mother was nearby and was in a position to hear the conversation.

Sergeant Randall Blankenship, who was with Officer Randolph, also testified that the defendant

made the statement, "I need help."

Rene Pullen, an investigator with Child Protective Services for over a year, also testified for

the state. Ms. Pullen, who had a bachelor's degree and some training within the department, opined

without objection that sexually abused children often do not report abuse due to fears that they will

not be believed, that they will be blamed for the event, or that they will be harmed. She stated that

skipping school, running away, and abusing drugs and alcohol "can indicate sexual abuse or any kind

of abuse . . . [with the victim] unintentionally hoping that somebody will find out what's really going

on." Ms. Pullen stated that it was her opinion that victims of sexual abuse also seek out older people

in their relationships. On cross-examination, Pullen was asked if she ever followed up on the

victim's claim that she had told her maternal grandmother about the sexual abuse. She

acknowledged that she had not because "with everything else we had, [it] wasn't a big issue at that

point."

Tabitha Cole, the victim's sister, testified for the defense. She maintained that the victim

never informed her of any sexual misconduct on the part of the defendant. Tabitha also testified that

after the defendant was charged, the victim claimed that she did not say "all them things that was in

the paper and . . . wish[ed] she could take it back." She also stated that the victim was acting "crazy"

and "cursing my momma and my daddy a lot" on the night she was taken to the hospital.

Paulette Cole, the victim's mother, testified that the victim had been "acting strange," "mad,"

and "ready to fight and stuff" just before she was taken to the hospital. Ms. Cole recalled that the

victim went to her room and refused to eat. When the victim continued to misbehave, Ms. Cole

decided to take her to the emergency room to have her tested for illegal drugs. She testified that a

few weeks earlier, the victim had stayed out all night with Patrick and later admitted to "drinking,

smoking, and having sex. . . ." She testified that the victim reacted angrily when told that the

relationship must be terminated.

Ms. Cole acknowledged that during the examination at the hospital on October 26, 1998, she

overheard the allegations made by the victim against the defendant. She stated that the victim had

never complained about sexual abuse and that she did not hear noises coming from the living room

on November 13, 1993. Ms. Cole testified that just before the hospital visit, the victim began to act

strangely. She stated that she searched the victim's room for any clues to explain her behavior, but

never found any note or letter wherein the victim had accused the defendant of sexual impropriety.

Ms. Cole contended that if there had been indications of misconduct on the part of the defendant,

she would have called the police and had him arrested. She stated that she was present when

counselor Gray talked to the defendant and that he never stated "Yes, I need help," in response to any

inquiry. Ms. Cole conceded, however, that she was not present when Officer Randolph and Sergeant

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Blankenship talked with the defendant. She also acknowledged that a day or so after she had taken

the victim to the hospital, she found a diary in the victim's room. She stated there was nothing in the

diary about the defendant's sexual impropriety.

The defendant denied that he raped and assaulted the victim. He stated that several weeks

before his arrest, he told Patrick to leave the victim alone; after that, the victim "just went berserk."

He recalled that just prior to taking her to the hospital, the victim looked "high" and was "acting like

she . . . wasn't there." He testified that he took the victim to the hospital because he suspected that

she was on drugs and later discovered that she had skipped three classes. He stated that the victim

was already "in trouble" with the school's truancy board and had missed 14 days of school that fall.

The defendant explained that he took the victim to the hospital to determine whether she was

"smoking dope" or "hooked on crack cocaine."

While the defendant acknowledged that counselor Gray asked if he had ever engaged in sex

with the victim, he denied answering in the affirmative. He also denied having any discussions with

Officer Randolph. The defendant testified that he had never had sex with the victim and had never

threatened her with a knife. He stated that the victim often threatened suicide when she did not get

what she wanted. The defendant acknowledged that he did give the victim extra money, but only

because she was in a higher grade than the rest of his children. The defendant, a Vietnam veteran

and Sunday School teacher with no prior criminal record, explained on cross-examination that

counselor Gray informed him of the victim's statement and was asked if he understood. The

defendant contended that he answered, "Yes, I understand. . . ." The defendant also maintained that

counselor Gray had taken his words out of context or had misunderstood his statement. The

defendant admitted that he said he was sorry but denied that it was in response to the victim's rape

and assault allegations. Finally, he denied ever having said, "I need help."

The jury returned a verdict of guilt on the charge of rape of a child. It acquitted the defendant

on the aggravated assault charge.

I

Initially, the defendant claims that the evidence was insufficient to support a conviction for

rape of a child. He argues that the victim was motivated to lie by her own anger after he and his wife

attempted to discipline her for her misbehavior with Patrick. He also contends that he never

admitted to raping the victim and that counselor Gray misunderstood his statement. He argues that

the statement, "I need help," was not an admission of guilt and had no probative value.

On appeal, the state is entitled to the strongest legitimate view of the evidence and all

reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.

State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light most favorable

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to the state, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). A

guilty verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and

resolves all conflicts in the proof in favor of the state's theory. State v. Hatchett, 560 S.W.2d 627,

630 (Tenn. 1978).

Rape of a child is defined as follows:

(a) Rape of a child is the unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if such victim is less than thirteen (13) years

of age.

(b) Rape of a child is a Class A felony.

(c) When imposing sentence under the provisions of title 40, chapter 35, for

a conviction under this section, the court shall consider as an enhancement factor that

the defendant caused the victim to be mentally incapacitated or physically helpless

by use of a controlled substance.

Tenn. Code Ann. § 39-13-522 (1997).

The victim testified that she was raped by the defendant on her eleventh birthday. The

defendant contested the claim, contending that the victim, who waited five years to allege any

impropriety, had been motivated to lie by anger over the disciplinary measures imposed upon her.

Counselor Gray testified that the defendant answered in the affirmative when asked whether he had

had sexual contact with the victim. Gray also testified that the defendant said, "I need some help,"

when confronted by the allegations of impropriety. Two officers corroborated that the defendant had

made such a statement. The testimony offered by the state and that presented by the defense offered

a classic jury question.

A jury verdict of guilt, of course, accredits the witnesses for the state and resolves, for

appellate purposes, any conflicts in the evidence. In determining the sufficiency of the proof to

convict, this court may neither reweigh nor reevaluate the testimony. In this instance, there was

proof to support each element of the offense. While recognizing that there was evidence favorable

to the defense theory, it is our view that the jury acted within its prerogative in determining that the

defendant was guilty. This court may not second guess that conclusion.

II

The defendant did not object when counselor Gray, Officer Randolph, and Sergeant

Blankenship testified that he said, "I need help." While he did not present the issue in his motion

for new trial, the defendant now argues that the trial court erred when it instructed the jury as to an

admission against interest. See Tenn. R. Evid. 803. The instruction was as follows:

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Evidence has been introduced in this trial of a statement or statements made

by the defendant outside of trial. Such statements must be corroborated by other

independent evidence to warrant and support a conviction.

The court has permitted admission of this evidence, but it remains your duty

to decide if, in fact, such statement or statements were ever made. If you do not

believe it was ever made, you should not consider it. If you decide any such

statement was made, you must then judge the truth of the facts stated. In determining

whether the statement is true, you should consider the circumstances under which it

was made. You should also consider whether any of the evidence before you tends

to contradict the statement in whole or in part. You should not arbitrarily disregard

any part of the statement but should consider all of the statement you believe is true.

If you find the statement is true, you are the sole judge of the weight that

should be given it. You should consider it along with all of the other evidence in the

case in determining the defendant's guilt or innocence.

An admission against interest has been defined as "a statement by the defendant which

acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the

defendant or which tends to show the guilt of the defendant or is evidence of some material fact, but

not amounting to a confession." State v. Roger Morris Gardner, No. 03C01-9712-CR-00524 (Tenn.

Crim. App., at Knoxville, July 13, 1999). The instruction provided is virtually identical to the

instruction on admission against interest contained in the Tennessee Pattern Jury Instructions. See

T.P.I. - Crim. § 42.11(a) (4th ed. 1995). In Helton v. State, our supreme court defined an admission

against interest as "an acknowledgment by the accused of certain facts which tend together with other

facts, to establish his guilt; while a confession is an acknowledgment of guilt itself. An admission,

then, is something less than a confession and, unlike a confession, . . . an admission is not sufficient

in itself to support a conviction." 547 S.W.2d 564, 567; see also State v. Kyger, 787 S.W.2d 13, 23

n.2 (Tenn. Crim. App. 1989).

Gray testified that he asked the defendant whether he "did this" and in response, the

defendant either said, "Yes," or nodded in the affirmative and then said, "I need some help." Officer

Randolph testified that the defendant, on more than one occasion, said, "I'm sorry," and, "I need

some help." Sergeant Blankenship testified that he overheard the defendant, just before he was taken

into custody, say, "I need help." It was the responsibility of the jury to determine whether these

statements were made, whether they were truthful, and what weight the statements should have been

given in determining guilt or innocence. In our view, the instruction was proper. It allowed the jury

to consider the surrounding circumstances and determine, in proper context, if the defendant was

acknowledging culpability. That was the correct procedure.

In summary, it is our view that the evidence was properly admitted and that the trial court

provided appropriate instructions to the jury. Moreover, the defendant's failure to make a

contemporaneous objection to the testimony was a waiver on the issue of admissibility and his

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failure to challenge the instructions in his motion for new trial would ordinarily result in a waiver

of the issue on appeal. See Tenn. R. App. P. 36(a).

Accordingly, the judgment is affirmed.

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GARY R. WADE, PRESIDING JUDGE

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