The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
April 30, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9804-CR-00192
Appellee, )
) SUMNER COUNTY
VS. )
) HON. JANE WHEATCRAFT,
MICHAEL D. KEEN, ) JUDGE
)
Appellant. ) (Incest)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
117 East Main Street
Gallatin, TN 37066-2801 ELIZABETH B. MARNEY
(On appeal) Assistant Attorney General
Cordell Hull Building, 2nd Floor
JOHN D. PELLEGRIN 425 Fifth Avenue North
113 West Main Street Nashville, TN 37243-0493
Gallatin, TN 37066-3231
(At trial) LAWRENCE RAY WHITLEY
District Attorney General
SALLIE W. BROWN
Assistant District Attorney General
113 West Main Street
Suite 300
Gallatin, TN 37066-2803
OPINION FILED:
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
JOE G. RILEY,
JUDGE
OPINION
A Sumner County jury convicted defendant, Michael D. Keen, of two counts
of incest, Class C felonies. The trial court sentenced him as a Range I standard
offender to six years incarceration for each conviction, consecutive. On this appeal
as of right, defendant raises the following issues:
1. whether the trial court erred in allowing testimony about
other sex crimes allegedly committed by him;
2. whether the trial court erred in allowing fresh complaint
testimony;
3. whether the trial court erred in allowing his psychiatrist
and psychiatric social worker to testify about
certain matters;
4. whether his trial counsel was ineffective; and
5. whether his sentence is excessive.
Upon our review of the record, we REVERSE AND REMAND for retrial one of
defendant's convictions, and AFFIRM the other conviction and sentence.
FACTS
The victim in this case is defendant's stepdaughter, H.K.1 She testified that
she initially consented to have sex with defendant during the spring of 1994 when
she was fourteen years old. She claimed that they had intercourse "[p]robably
anywhere from 10 to 15" times. She did not specify when the encounters occurred.
She testified that she also performed oral sex on defendant, but again did not
specify when these incidents occurred. H.K. also testified that, after she had sex
with defendant, he would give her and her siblings liquor and marijuana. Her
description on direct examination about the last time she and defendant had sex
was the following:
1
This Court's policy is to identify minor victims of sex crimes by their initials.
2
Q: Do you remember approximately when
was the last time you and Mr. Keen had
sex?
A: It was probably a month and a half before
I told, which was April 23rd of [1996].
Q: So sometime during March of that year?
A: Yes.
H.K. initially reported her allegations to her mother, Marilyn Wood, in April
1996. Wood took her children out of the house and when she returned, defendant
was gone. Wood testified that defendant called her the next day, "crying, telling me
he was a sick man, that he wanted me to stick by him and help him get help." She
further testified that defendant admitted to her in May 1996 that he "had sex with
[H.K.] for over a year."
On May 5, 1996, defendant was admitted into a hospital. Calvily Evonne
Allmon, the psychiatric social worker who interviewed him upon his admission,
testified that, "[a]ccording to [her] notes [defendant] admitted to sexual abuse with
his stepdaughter." Dr. Robert A. Jack, the psychiatrist who treated defendant at the
hospital, testified that part of the May 13, 1996, discharge plan was that he attend
treatment at a sexual perpetrators program.
H.K.'s allegations were not reported to the police until July 31, 1996, when
she told Detective Susan Morrow, "that her stepfather was having sexual
intercourse with her and she was performing oral sex on him." Morrow also testified
that H.K. had reported defendant giving her alcohol and marijuana after their sexual
encounters.
Defendant testified and admitted giving H.K. alcohol and marijuana. He also
admitted talking with H.K. about having sexual relations with her. He denied,
however, that he ever had sex with her. He further denied having told Allmon or Dr.
Jack that he had sexual relations with her. He testified that Wood told him she
wanted a divorce and that if he "messed this up for her . . . [she] will say that [he]
raped [her] daughter."
3
ELECTION OF OFFENSES
Although not raised by defendant on this appeal, it is our responsibility to
reverse his conviction for incest under Count One of the indictment because the
state failed to properly elect an offense, thereby violating defendant's right to jury
unanimity. See State v. Walton, 958 S.W.2d 724, 727-28 (Tenn. 1997). The state's
omission constitutes plain error. Id.; see Tenn. R. Crim. P. 52(b).
Count One of the indictment provides as follows: "[Defendant] heretofore on
or about the Spring of 1994, . . . did unlawfully, knowingly and feloniously engage
in sexual penetration with [H.K.], a person he knew to be his step-daughter." The
indictment thus covers a period of several months and further covers all acts of
sexual penetration, which include both sexual intercourse and oral sex. See Tenn.
Code Ann. § 39-13-501(7). H.K. testified that she began having sex with defendant
in the spring of 1994, that they had intercourse ten to fifteen times, and that they
also engaged in oral sex. No specific time frame was established for these multiple
sex acts.
During closing argument the prosecutor contended, "[t]his happened to her
. . . over a period of . . . two years, ending in March of 1996." The prosecutor further
stated to the jury, "it's been proven to you, beyond a reasonable doubt, that this
man, Michael D. Keen, had sexual intercourse with his stepdaughter [H.K.], on, at
least, two occasions, as in the indictment, beginning in the spring of 1994 and
ending in March of 1996" (emphasis added).
The evidence in this case suggests that defendant committed multiple sexual
offenses against H.K. during the time period covered in Count One of the
indictment. Accordingly, the trial court should have required the state to elect the
particular offense for which it was seeking a conviction in order to ensure that the
jury's verdict was unanimous. See Walton, 958 S.W.2d at 727. "This requirement
is 'fundamental, immediately touching the constitutional rights of an accused.'" Id.
(quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)).
4
With respect to Count One, it appears that the state was attempting to
convict defendant for the first time he had sex with H.K. However, the proof was not
so limited. Rather, it included testimony about multiple sex acts, of two different
types, with no specificity as to events. Thus, because the state was not required to
elect a specific offense for which it was seeking conviction, there is no assurance
that each juror relied upon the same evidence in convicting defendant. Accordingly,
defendant's conviction of incest under Count One of the indictment must be
reversed and remanded for a new trial.
Defendant's conviction under Count Two of the indictment does not suffer
from the same problem. That count provides: "[Defendant] heretofore on or about
March, 1996 . . . did unlawfully, knowingly and feloniously engage in sexual
penetration with [H.K.], a person he knew to be his step-daughter." The proof
specific to this count was H.K.'s testimony that the last time she had sex with
defendant was in March 1996. Thus, the jury did not have the same "brimming bag
of offenses," Tidwell v. State, 922 S.W .2d 497, 501 (Tenn. 1996), from which to
choose in deciding to convict defendant of this offense.
EVIDENTIARY ISSUES
A. Other Crimes
Defendant asserts that the trial court should not have allowed proof about
sex crimes other than those for which he was indicted. The state responds that this
issue is waived because trial counsel did not contemporaneously object. The state
is correct in this regard. See Tenn. R. App. P. 36(a).
Furthermore, we find this issue to be without merit. Defendant is correct that
there is no "sex crimes" exception to the general rule prohibiting proof of an
accused's other crimes. See State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994);
5
Tenn. R. Evid. 404(b). However, proof of other sex crimes is admissible if they
occurred during the time period covered by the indictment.2 Id. As set forth above,
the state elicited testimony from H.K. about multiple sex acts which were implied as
occurring during the several month period covered by Count One of the indictment.
Had the state elicited proof of sex acts occurring after the Spring of 1994 and
before the final episode, its admission might have been error. Id. The proof in this
case was not so specific. However, to the extent that the proof can be so
construed, we find its admission to have been harmless error with respect to
defendant's conviction under Count Two. See State v. Dutton, 896 S.W.2d 114,
117 (Tenn. 1995). H.K.'s testimony about her last sexual encounter with defendant
and her subsequent decision to tell her mother about what had been happening was
clear and unequivocal. It was corroborated by her mother's testimony. Defendant
admitted enough of H.K.'s allegations to justify the jury in concluding that H.K.'s
testimony was credible on the whole. Accordingly, any proof of sex acts that did not
fall within the indicted period did not "more probably than not" affect the judgment
of conviction on Count Two, and defendant is not entitled to reversal of his second
conviction on this ground. Id.; Tenn. R. App. P. 36(b).
B. Hearsay
Defendant next complains about the trial court's admission of "fresh
complaint" testimony. Specifically, defendant contends that Detective Morrow
should not have been allowed to testify about what H.K. told her.
Morrow was the state's first witness in its case-in-chief. She testified, inter
alia, that H.K. alleged "that her stepfather was having sexual intercourse with her
and she was performing oral sex on him;" that defendant was H.K.'s uncle because
he was her father's half or full brother; and that defendant would buy H.K. alcohol
and marijuana after having sex with him.
2
However, when such evidence is admitted, the state must elect the specific offense
for which it seeks conviction. Shelton, 851 S.W.2d at 137.
6
In State v. Kendricks, 891 S.W.2d 597, 606 (Tenn. 1994), the Court
overruled the longstanding rule announced in Phillips v. State, 28 Tenn. (1 Hum.)
246 (1848), which allowed both the fact and the details of a fresh complaint to be
admitted during the state's case-in-chief. In Kendricks, the Court held that, in cases
involving adult victims of sexual crimes, under the fresh complaint doctrine, "the fact
that a complaint was made is admissible in the state's case-in-chief to rebut the
possible negative inference created by the victim's silence." Kendricks, 891 S.W.2d
at 606. "Once the credibility of the victim has been attacked, the details of the
complaint are admissible to show that the victim related the same story soon after
the incident." Id. This testimony is admissible only as corroborative evidence, not
as substantive evidence. Kendricks, 891 S.W.2d at 606.
The complaint must be timely, but need not be contemporaneous with the
event. Kendricks, 891 S.W.2d at 606. This court must consider the
reasonableness of the delay in the complaint in light of all the circumstances,
including the reasons for the delay and the age and mental capacity of the victim.
Id.; State v. Lewis, 803 S.W.2d 260, 264 (Tenn Crim. App. 1990).
The Kendricks holding is limited to adult victims. Kendricks, 891 S.W.2d at
606. Fresh complaint evidence is not admissible in cases with a child victim. State
v. Livingston, 907 S.W.2d 392, 394-95 (Tenn. 1995).
In the context of sex crimes, a "child" is defined as under thirteen years old.
See Tenn. Code Ann. §§ 39-13-504(a)(4) and 39-13-522(a). H.K. testified that her
date of birth is February 11, 1980. The indictment covers the time period "Spring
of 1994" and "March, 1996." Therefore, H.K. was fourteen years old in the spring
of 1994, an "adult" for purposes of determining the admissibility of fresh complaint
testimony. See State v. Schuller, 975 S.W.2d 313, 321 (Tenn. Crim. App. 1997).
However, she did not make her statement to Morrow until July 31, 1996. This was
at least four months after the last alleged incident took place, more than three
months after H.K. told her mother. Under the circumstances of this case, we hold
that H.K.'s report to Morrow was not sufficiently timely to qualify as fresh complaint.
Accordingly, the trial court erred in admitting this evidence. However, given H.K.'s
7
testimony and the remaining proof in the record, we also hold that the error was
harmless. See State v. Speck, 944 S.W.2d 598, 602 (Tenn. 1997); Tenn. R. App.
P. 36(b). Therefore, this issue is without merit.
C. Psychiatric Privilege
In his next issue, defendant contends the trial court committed plain error in
admitting Dr. Jack's and Allmon's testimony about what he told them while at the
hospital. Defendant is correct that patient-psychiatrist communications are
privileged. See Tenn. Code Ann. § 24-1-207.3 However, he concedes that this
issue is waived because he did not raise this issue in his motion for new trial. See
Tenn. R. App. P. 3(e). Hence, his reliance is on "plain error."
An error which has affected the substantial right of a defendant may be
noticed at any time in the discretion of the appellate court where necessary to do
substantial justice. Tenn. R. Crim. P. 52(b). “Plain error” or “fundamental error” is
recognized under Tenn. R. Crim. P. 52(b). State v. Stephenson, 878 S.W.2d 530,
553-54 (Tenn. 1994); State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App.
1994). Plain error is an egregious error that strikes at the “fairness, integrity or
public reputation of judicial proceedings.” United States v. Rodriguez, 882 F.2d
1059, 1064 (6th Cir. 1989); State v. Adkisson, 899 S.W.2d at 639-40. Some errors
are so fundamental and pervasive that they require reversal without regard to the
facts or circumstances of the particular case. Delaware v. Van Arsdall, 475 U.S.
673 (1986).
In determining whether the admission of Dr. Jack's and Allmon's testimony
constitutes plain error, we must consider whether each of the following requirements
is met:
1. the record clearly establishes what happened in the trial
court;
3
“Communications between a patient and a licensed physician when practicing as a
psychiatrist in the course of and in connection with a therapeutic counseling relationship .
. . are privileged in proceedings before judicial . . . tribunals. Neither the psychiatrist nor any
member of the staff may testify or be compelled to testify as to such communications or
otherwise reveal them in such proceedings without consent of the patient except” under very
limited circumstances.
8
2. a clear and unequivocal rule of law was breached;
3. a substantial right of defendant's was adversely
affected;
4. defendant did not waive the issue for tactical reasons;
and
5. consideration of the error is 'necessary to do substantial
justice.’
Adkisson, 899 S.W.2d at 641-42 (citations omitted).
In this case, the record clearly establishes the admission of the privileged
communications. Moreover, a clear and unequivocal rule of law -- the patient-
psychiatrist privilege -- was breached.4 The state concedes that the issue was not
waived for tactical reasons. Thus, we must determine whether the error adversely
affected one of defendant's substantial rights and, if so, whether consideration of
the error is necessary to do substantial justice.
Dr. Jack's testimony included the following privileged communications:
1. defendant reported that "he had
propositioned one of his stepdaughters,
and she had reported this to her mother;"
and
2. part of defendant's discharge plan was
that he attend a sexual perpetrators
program.
Allmon’s testimony included the following privileged communications:
1. defendant reported "that his wife took the
children, two stepdaughters, ages 15 and
16, and their son, and left . . . . This
followed the oldest daughter telling her
mother that [he] had propositioned her;"
2. he "admitted to sexual abuse with his
stepdaughter;"
3. he informed her that he didn't know if he
was "evil or sick;" and
4. he was open to referral to the sexual
perpetrators program.
4
The privilege does not apply “to any situation involving known or suspected child
sexual abuse.” Tenn. Code Ann. § 37-1-614(1996). As set forth above, however, H.K. was
not a “child” at the time of the alleged offenses. We also note that the indictment in this case
does not allege child sexual abuse.
9
In light of defendant's own admissions on the stand about discussing with the victim
their having sexual relations, and in light of the remaining proof in the record, we
hold that the admission of this testimony, while error, does not rise to the level of
plain error requiring reversal. This issue is without merit.
In a related issue, defendant contends that the trial court erred in allowing
Allmon to testify that defendant told her he sexually abused his stepdaughter. He
argues it was not relevant or, alternatively, any relevance was substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury. See Tenn. R. Evid. 402, 403. Allmon was unable to clarify the time period
to which defendant referred, making the testimony questionable as proof of the
particular crimes with which he was charged. Moreover, the record establishes that
defendant had two stepdaughters. Allmon did not identify which girl defendant
allegedly abused. Finally, Allmon did not specify what conduct was meant by
"sexual abuse." Regardless, we find that its admission did not so prejudice
defendant as to require reversal. This issue is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In conjunction with the foregoing issues, defendant complains that his trial
counsel was ineffective. This Court reviews a claim of ineffective assistance of
counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Defendant has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104
S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State,
874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
Because we find that none of the errors complained of resulted in prejudice
which deprived defendant of a fair trial, this issue has no merit. Defendant's
10
contention that all of the trial court's errors, combined with trial counsel's alleged
mistakes, prejudiced the judicial process is likewise without merit. See Tenn. R.
App. P. 36(b).
SENTENCING
Finally, defendant contends that his sentence on each conviction is
excessive, and service of those sentences should not be consecutive. Defendant
was convicted of two Class C felonies. The range of sentence for these felonies for
a standard offender is three to six years. Tenn. Code Ann. § 40-35-112(a)(3). The
trial court enhanced each of defendant's sentences to the maximum of six years on
the basis of one enhancement factor: he had a previous history of criminal
convictions in addition to those necessary to establish the range. Tenn. Code Ann.
§ 40-35-114(1). The trial court made a specific finding of no mitigating factors.
Defendant contends that the court should have applied as mitigating factors that his
conduct neither caused nor threatened serious bodily injury, and that he
acknowledged his guilt and expressed remorse. Tenn. Code Ann. § 40-35-113 (1)
and (13). The State disagrees and further argues that the trial court erred in
refusing to apply two additional enhancement factors: the offenses were committed
to gratify his desire for pleasure and excitement; and he abused a position of private
trust. Tenn. Code Ann. § 40-35-114(7) and (15).
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
11
We turn first to the application of mitigating and enhancement factors. We
agree with the state that the enhancement factor for abuse of a private trust was
applicable in this case, and that the trial court erred in refusing to apply it.
Defendant was H.K.'s stepfather. Contrary to defendant's argument, abuse of a
private trust is not an essential element of the crime of incest. See State v. Robert
L. Miller, C.C.A. No. 03C01-9502-CR-00037, Blount County (Tenn. Crim. App. filed
September 25, 1997, at Knoxville).
We further agree with the state that the defendant committed these acts to
gratify his desire for pleasure and excitement. See Tenn. Code Ann. § 40-35-
114(7). Again, this is not an essential element of incest. See State v. Billy Joe
Pruitt, C.C.A. No. 01C01-9304-CR-00123, Wilson County (Tenn. Crim. App. filed
March 31, 1994, at Nashville). Accordingly, even if defendant is correct that the trial
court should have applied two mitigating factors, we find that the number and
severity of the applicable enhancement factors is sufficient to support the maximum
sentence within the range. This issue is without merit.
Because we have reversed defendant's conviction under Count One of the
indictment, he is entitled to a new trial on that charge and, if convicted, a new
sentencing hearing. The issue of consecutive sentences is, therefore, moot and we
decline to address it.
CONCLUSION
For the reasons set forth above, defendant's conviction of incest under
Count One of the indictment is reversed, and that charge is remanded for a new
trial. In all other respects, the judgment below is affirmed.
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____________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
DAVID H. WELLES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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