State of Tennessee v. Richard Lee Morris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 6, 2015

STATE OF TENNESSEE v. RICHARD LEE MORRIS

Appeal from the Circuit Court for Madison County

No. 14-123 Don H. Allen, Judge

No. W2015-00364-CCA-R3-CD - Filed January 27, 2016

The Defendant-Appellant, Richard Lee Morris, was indicted by a Madison County Grand

Jury for attempted rape and misdemeanor assault. Following a jury trial, he was

convicted of the lesser included offense of sexual battery and the charged offense of

assault. See T.C.A. §§ 39-13-505, -101(a)(1) (Supp. 2013). The trial court sentenced

Morris as a Range II, multiple offender to four years for the sexual battery conviction and

to eleven months and twenty-nine days for the assault conviction and ordered the

sentences served consecutively. On appeal, Morris argues that the evidence is

insufficient to sustain his assault conviction. Upon review, we affirm the judgment of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public

Defender, Jackson, Tennessee, for the Defendant-Appellant, Richard Lee Morris.

Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Trial. The victim, L.R.,1 testified that she and Morris dated for a couple of years

prior to the incident in this case. On November 1, 2013, Morris completed some odd jobs

1

It is the policy of this court to protect the victims of sexual offenses by identifying them by their

initials only.

at the victim‟s mother‟s home before arriving at the victim‟s house at approximately 8:00

p.m. The victim‟s twenty-three-year-old son allowed Morris into her home, and Morris

joined the victim in her bedroom. Shortly thereafter, the victim‟s son left the home.

The victim stated that Morris drank two forty-ounce beers while they watched

television. At the time, the victim was upset because her sister had passed away two

weeks before. The victim said Morris did not understand why she was still grieving,

which led to an argument. Morris asked the victim how long she was going to mourn her

sister‟s death because it had been two weeks since they had engaged in sexual relations.

In an attempt to get Morris to leave her home, the victim told him that she needed to go to

sleep because she had a doctor‟s appointment the next morning. Morris continued to

pressure her for sex, and the victim told him that she needed some time to herself

following her sister‟s death. When the victim told him that she did not want to finish her

wine cooler, Morris became angrier and looked like he was going to storm out of her

house. The victim, believing that Morris was about to leave, turned her attention back to

the television program, and Morris jumped on top of her on the bed.

At the time, the victim had on a long nightgown, which she had intentionally worn

to avoid attracting sexual attention from Morris, and Morris was wearing shorts and a

shirt. Morris pinned the victim down on the bed and attempted to remove her gown and

underwear. He then informed her, “I‟m going to rape you before I leave you alone.” The

victim heard Morris unbuckle his belt and heard his shorts fall to the floor. As the victim

struggled to escape, she felt Morris‟s penis between her thighs and on top of her vagina.

She said that although Morris was trying to penetrate her, she believed that he ejaculated

before he was able to penetrate her. During the struggle, Morris scratched the victim‟s

vagina with his fingernails. Morris knew that the victim had a device affixed to her back

to treat her degenerative disk disease, which was loosened during the attack. The victim

said that she experienced pain after this device was damaged.

The victim stated that she tried to use her taser gun on Morris, but he knocked it

out of her hand. The victim told Morris to get off of her and informed him that she was

calling the police. She grabbed her cellular phone, and despite Morris‟s attempts to

knock it out of her hand, she held onto it. When she screamed that she was calling the

police, Morris jumped off the bed, pulled up his pants, and fled. The victim then noticed

that she felt sticky and wet between her thighs. The victim stated that the attack lasted

approximately five minutes.

After Morris left her house, the victim called the police. She was still in a state of

shock when the police arrived. The victim was later taken by ambulance to a hospital

where she underwent a sexual assault examination. While there, a nurse collected

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evidence for the sexual assault kit, and an x-ray was taken of her back. The victim said

that on the day of his arrest, Morris called her from jail and apologized for the attack.

Daniel Long, an investigator with the major crimes unit of the Jackson Police

Department, testified that upon arriving at the crime scene, he saw that the bed in the

victim‟s bedroom was in disarray. He also noted that belongings had been scattered, and

there were large beer bottles in the kitchen. Investigator Long said that the victim, who

was wearing a nightgown, told him what had occurred. He later collected the victim‟s

nightgown, underwear, and bedspread as evidence. Investigator Long observed the

victim‟s taser gun lying on her bedroom floor.

Mary Cole, a sexual assault nurse examiner, testified that she interviewed and

examined the victim a few hours after the attack. She said the victim was crying as she

provided the details of the incident. Cole recalled that the victim had an implanted device

in her back for chronic pain that had been damaged in the struggle and that the victim

complained of pain in her lower back. She also noted that the victim‟s left lower forearm

was sore, and the victim had discomfort in her pubic area. Cole swabbed the victim‟s

lower abdomen and pubic area to collect DNA evidence.

Bobby Appleton, an investigator with the domestic violence unit of the Jackson

Police Department, testified that Morris gave a statement after being advised of his rights.

Morris admitted that he had gone to the victim‟s house, had drunk some beer, and had

pushed the victim onto the bed because he wanted to have sexual relations with her. He

said the victim informed him that she did not want to have sex and reached for her

cellular phone. Morris asserted that he never removed his pants during the incident and

that he fled the victim‟s home after she told him she was calling the police.

Danielle Jones, a sergeant with the special investigations unit of the Jackson

Police Department, testified that Morris consented to a buccal swab for DNA analysis

after his arrest. She stated that the DNA evidence from Morris was compared to the

evidence collected in the sexual assault kit.

Donna Nelson, a special agent forensic scientist with the Tennessee Bureau of

Investigation, was declared an expert in the fields of DNA identification and analysis.

She confirmed that the DNA from sperm collected from the victim‟s body matched the

DNA from Morris‟s buccal swab.

ANALYSIS

Morris argues that the evidence is insufficient to sustain his conviction for assault.

He claims that “[a]ny injury to [the victim‟s] back, while surely painful and

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uncomfortable, was inflicted as a result of the Sexual Battery[.]” While Morris admits

that he pinned the victim‟s arms during the commission of the sexual battery offense, he

claims he “never struck, slapped, kicked, or punched” the victim. He asserts that his

criminal conduct was limited to forcing himself upon the victim and that he never took

any separate action that would constitute an assault offense. We conclude that the

evidence is sufficient to support Morris‟s assault conviction.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

When evaluating the sufficiency of the evidence, the standard of review applied by this

court is “whether „any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In making this determination,

the State is entitled to the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729

(Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of

review for sufficiency of the evidence “„is the same whether the conviction is based upon

direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the

credibility of the witnesses, determine the weight given to witnesses‟ testimony, and

reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.

2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,

the jury determines the weight to be given to circumstantial evidence and the inferences

to be drawn from this evidence, and the extent to which the circumstances are consistent

with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes,

331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When

considering the sufficiency of the evidence, this court shall not substitute its inferences

for those drawn by the trier of fact. Id.

Here, Morris was charged with attempted rape, and the jury convicted him of the

lesser included offense of sexual battery. Morris argues that his criminal conduct was

limited to forcing himself upon the victim and that he never took any separate action that

would constitute the assault offense.

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As relevant in this case, sexual battery is defined as “unlawful sexual contact with

a victim by the defendant . . . accompanied by any of the following circumstances: (1)

[f]orce or coercion is used to accomplish the act” [or] (2) “[t]he sexual contact is

accomplished without the consent of the victim and the defendant knows or has reason to

know at the time of the contact that the victim did not consent[.]”2 T.C.A. § 39-13-

505(a)(1), (2) (Supp. 2013). “„Sexual contact‟ includes the intentional touching of the

victim‟s, the defendant‟s, or any other person‟s intimate parts, or the intentional touching

of the clothing covering the immediate area of the victim‟s, the defendant‟s, or any other

person‟s intimate parts, if that intentional touching can be reasonably construed as being

for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6) (Supp. 2013).

“„Intimate parts‟ includes semen, vaginal fluid, the primary genital area, groin, inner

thigh, buttock or breast of a human being.” Id. § 39-13-501(2) (Supp. 2013). As to the

assault offense that is the subject of this appeal, the State was required to show that

Morris “[i]ntentionally, knowingly or recklessly cause[d] bodily injury to another.” Id. §

39-13-101(a)(1) (Supp. 2013).

Morris committed the sexual battery offense by placing his penis between the

victim‟s thighs and on top of the victim‟s vagina and by ejaculating on her clothing. The

evidence shows that he was able to accomplish this unlawful sexual contact by force and

without the victim‟s consent. Morris committed the assault offense by intentionally,

knowingly, or recklessly causing bodily injury to the victim. The victim testified that

Morris scratched her vagina and damaged the device affixed to her back, which caused

her pain. Mary Cole, the sexual assault nurse, also testified that the victim‟s implanted

device had been damaged in the struggle, which caused the victim pain. In addition, Cole

stated that victim‟s forearm was sore from the struggle and that the victim experienced

discomfort in her pubic area from the attack. This evidence, when viewed in the light

most favorable to the State, was sufficient to support Morris‟s conviction for assault

under Code section 39-13-101(a)(1).

Although not specifically raised as an issue on appeal by Morris, we conclude that

the trial court did not err in refusing to merge the assault conviction with the sexual

battery conviction. Because the statutory elements of assault and sexual battery are not

the same and because neither offense as charged was a lesser included offense of the

other, Morris‟s convictions do not violate double jeopardy. See State v. Watkins, 362

S.W.3d 530, 557 (Tenn. 2012).

2

We note that the jury charge was not included in the appellate record.

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CONCLUSION

Based upon the aforementioned authorities and reasoning, the judgment of the trial

court is affirmed.

_________________________________

CAMILLE R. McMULLEN, JUDGE

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