State of Tennessee v. Tarrance Jershun Perry

04/06/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 2, 2021 Session

STATE OF TENNESSEE v. TARRANCE JERSHUN PERRY

Appeal from the Circuit Court for Madison County

No. 19-948 Donald H. Allen, Judge

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No. W2020-01464-CCA-R3-CD

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The Appellant, Tarrance Jershun Perry, was convicted in the Madison County Circuit Court

of rape, a Class B felony, and the trial court sentenced him to fifteen years to be served at

one hundred percent release eligibility. On appeal, the Appellant contends that a

constructive amendment of the indictment and a fatal variance occurred when the

indictment charged him with rape by force or coercion but the proof at trial showed rape

without consent and that the evidence is insufficient to support the conviction. Based upon

the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial

court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.

Kendall Stivers Jones, Assistant Public Defender-Appellate Division (on appeal), Franklin,

Tennessee, and Greg Gookin (at trial), Jackson, Tennessee, for the appellant, Tarrance

Jershun Perry.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In December 2019, the Madison County Grand Jury indicted the Appellant for rape

by force or coercion and violating the sex offender registry law. The trial court severed

the offenses, and the Appellant proceeded to trial for rape in July 2020.

At trial, the fifteen-year-old victim testified that in the fall of 2018, she was thirteen

years old and was living in a home on Lost Creek Road with her siblings, her mother, her

mother’s boyfriend, and the Appellant. The Appellant had been living with the victim’s

family for a couple of months.

The victim testified that one night in November, she was asleep on the floor in her

older brother’s upstairs bedroom. The victim’s older brother, Q.V., was not present, but

the victim’s two-year-old brother, J.J., was asleep in Q.V.’s bed.1 The victim’s mother was

at work, and the victim’s other siblings were asleep downstairs. The victim said that the

Appellant “shook” her to wake her, that he moved her shorts to the side, and that he started

to penetrate her vagina with his penis. The victim stated, “I told him to stop. He ain’t

stopped. I pushed him. He didn’t get off me.” The Appellant penetrated the victim. The

State asked if the victim wanted “that” to happen and if she gave the Appellant permission

to do “that.” The victim answered both questions in the negative. The Appellant did not

hit the victim, but the penetration was painful. The Appellant did not say anything to the

victim when he woke her, and J.J. remained asleep during the incident. The victim said

she did not scream because the Appellant “had the radio on.” After the incident, the victim

went into the bathroom and used the bathroom. When she wiped her vaginal area, she saw

blood.

The State asked why the victim did not tell anyone, and she testified that “he said

he was going to hurt [himself] and me, if I did.” However, in December or January, the

victim’s mother took her to a hospital, and the victim told nurses and her mother what had

happened. The victim also drew a picture for law enforcement, showing the layout of the

bedroom in which the incident had occurred. The State showed a drawing to the victim,

and she identified it as the one she made after she revealed the abuse. At the close of the

victim’s direct examination, the following colloquy occurred:

Q And did you give him permission to do that?

A No.

Q Was that with your consent?

A No.

Q Was it against your will that he did that?

A Yes.

1

In order to protect the victim’s identity, we will refer to her siblings and her mother by their

initials.

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Q You need me to rephrase the question? Did you want him to do that?

A No.

Q Did he have your permission to do it?

A No.

Q When I said earlier, “against your will,” that means you didn’t want

him to do it; is that correct?

A Yes.

On cross-examination, the victim testified that she had two older siblings and five

younger siblings. The Appellant usually slept in Q.V.’s bed with Q.V. On redirect-

examination, the State asked why the victim slept in Q.V.’s bedroom that night, and the

victim answered, “I don’t know. . . . [E]verybody sleep in each [other’s] rooms.”

T.C., the victim’s mother, testified that she had eight children ranging in age from

seven months to twenty-one years old. The victim was her third child. In November 2018,

T.C.’s family and T.C.’s boyfriend were living in a house on Lost Creek Road. They had

moved into the home in July or August. The house had four bedrooms, and Q.V.’s bedroom

was upstairs. T.C. said that the children had assigned bedrooms but that they slept “all

over the place.”

T.C. testified that the Appellant was her best friend’s brother. About one month

after T.C.’s family moved into the home on Lost Creek Road, the Appellant told T.C. that

he was “going through some things” and that he needed a place to stay. The Appellant

asked to live with T.C. and told her that he would “help out around the house, help out with

transportation, and help with the kids.” T.C. was working from 7:00 p.m. to 7:00 a.m. most

days, so she allowed the Appellant to move into her home.

T.C. testified that at some point, she told the Appellant that her children were

“feeling uncomfortable with him.” The Appellant argued with T.C., so she asked him to

leave, and he did so. In December or January, T.C. saw some text messages between the

Appellant and the victim. As a result of the messages, T.C. took the victim to a hospital

emergency room and learned that something had happened between the Appellant and the

victim.

On cross-examination, T.C. testified that the Appellant was unemployed and that he

slept in Q.V.’s bedroom or on the living room couch. T.C. said she did not remember a

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radio being in Q.V.’s bedroom. She acknowledged that the victim did not tell her about

the Appellant’s vaginally penetrating the victim.

Sergeant T.J. King of the Madison County Sheriff’s Office testified that on

December 29, 2018, the victim went to a hospital emergency room and disclosed that she

had been sexually assaulted in a home on Lost Creek Road. Sergeant King later met the

victim and her mother. On January 17, 2019, the victim had a forensic interview at the

Center for Child Abuse.

On cross-examination, Sergeant King testified that he was present in a separate

room during the victim’s forensic interview but that he could hear and see her. Although

Sergeant King met the victim and her mother, he did not speak with them about the incident

on Lost Creek Road.

At the conclusion of Sergeant King’s testimony, the State rested its case. The

Appellant did not present any proof, the parties gave their closing arguments, and the trial

court instructed the jury. During deliberations, the jury sent a note to the trial court, stating

that the jurors were unable to reach a unanimous decision. The trial court had the jury

brought into the courtroom and asked the foreperson if she thought further deliberations

would result in a unanimous verdict. She answered, “Probably.” However, she then

answered, “No, not really. . . . They said it wasn’t enough evidence.” The trial court

questioned some of the jurors, and one of them said he thought it was possible they could

reach a unanimous verdict. Another juror asked the trial court, “[W]e are required to accept

the statement that is given under oath as fact, correct?” The trial court responded, “[Y]ou

each judge the credibility or believability of the witness. That’s your role. That’s your job

to determine whether or not they’re telling the truth or not telling the truth. I mean, that’s

-- that’s your role. Understand?” The trial court sent the jury out of the courtroom to

continue deliberations. Subsequently, the jury returned to the courtroom and pronounced

the Appellant guilty of rape, a Class B felony. The trial court polled the jury, and each

juror confirmed the verdict. On September 8, 2020, the trial court held a sentencing hearing

and sentenced the Appellant to fifteen years to be served at one hundred percent.

II. Analysis

A. Fatal Variance

The Appellant contends that a constructive amendment of the indictment and a fatal

variance occurred when the indictment charged him with rape by force or coercion but the

proof at trial showed rape by lack of consent. In support of his argument, he notes that

during the victim’s direct examination, the State repeatedly questioned her as to whether

she consented to the penetration. He also notes that during the State’s closing argument,

the State “completely misstated the statutory elements” of the charged offense by telling

the jury that force or coercion meant without consent. The Appellant asserts that the State’s

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direct examination of the victim and improper closing argument “broadened the grounds

for conviction and changed the nature of the essential elements of the offense.” The State

argues that the Appellant has waived this issue for failing to object to the victim’s testimony

and the State’s closing argument at trial and for failing to raise the variance issue in his

motion for new trial. The State also argues that, absent waiver, this court has “[i]mpliedly

. . . considered force and consent to be [synonymous].” We disagree with the State on both

points. That said, we conclude that a constructive amendment of the indictment and a fatal

variance did not occur in this case.

As to the State’s waiver argument, the State is correct in that the Appellant did not

object to the victim’s testimony or the State’s closing argument. See Tenn. R. App. P.

36(a) (nothing in the rule shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error). The Appellant also did not raise the

variance issue in his motion for new trial. Ordinarily, we treat an issue not included in a

motion for new trial as waived pursuant to Tennessee Rule of Appellate Procedure 3(e),

which provides that “in all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence . . . unless the same was

specifically stated in a motion for a new trial.”

As noted by the Appellant, though, “When a variance occurs, the proof is

insufficient, as a matter of law to support the offense alleged in the charging instrument. .

. . Since the relief to be granted when a variance occurs is the dismissal of the prosecution,

the waiver provision contained in Rule 3(e) is not applicable.” State v. Keel, 882 S.W.2d

410, 417 (Tenn. Crim. App. 1994); see State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim.

App. 2001) (sufficiency of the evidence does not have to be raised in a motion for new trial

in order to be heard on appeal). Therefore, we will consider the Appellant’s variance issue.

Relevant to this case, rape is unlawful sexual penetration of a victim by the

defendant when (1) force or coercion is used to accomplish the act or (2) the sexual

penetration is accomplished without the victim’s consent and the defendant knows or has

reason to know at the time of the penetration that the victim did not consent. Tenn. Code

Ann. § 39-13-503(a)(1), (2). Here, the indictment alleged that the Appellant sexually

penetrated the victim “by use of force or coercion.” During the State’s direct examination

of the victim, the State asked several times if she consented to the penetration. Moreover,

during the State’s closing argument, the State said as follows:

She told him no, this is not what she wanted to happen. She told you

that. This is not what she wanted to happen. She was wearing a t-shirt and

shorts and that he pulled her shorts to the side, and inserted his penis into her

vagina. That’s penetration. She told you it was against her will. It was

without her consent.

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....

But, ladies and gentlemen, what you’re here about is -- is a terrible

crime, a terrible charge, but a fairly simple charge in that rape is the unlawful

sexual penetration of a person to another person by force or coercion, which

means basically without their will, without their consent. You just can’t

sexually penetrate somebody unless they consent to it.

[The victim] told you she did not consent to it, that he came in there

and woke [her up], trying to penetrate her. He was able then to actually do

that, to actually sexually penetrate her with his penis into her vagina, which

is rape. It was against her will, without her consent, and without her

permission. That is rape.

....

So, I ask you, ladies and gentlemen, take the -- the one piece of

evidence that you have, just so you can see the layout of the room. You’re

going to listen to the testimony and recall the testimony that you -- you’ve

heard today regarding what happened, what [the victim] told you, that this

was without her consent and against her will.

After closing arguments, the trial court instructed the jury that the essential elements

of rape were “(1) That the defendant had unlawful sexual penetration of the victim; and (2)

That force or coercion was used to accomplish the act; and (3) That the defendant acted

either intentionally, knowingly, or recklessly.” The trial court defined “force” as

“compulsion by the use of physical power or violence” and defined “coercion” as “the

threat of force or violence to be performed immediately or in the future.”

The Sixth and Fourteenth Amendments to the United States Constitution and article

I, section 9 of the Tennessee Constitution afford an accused the right to be informed of the

nature and cause of the accusation against him or her. See State v. Hill, 954 S.W.2d 725,

727 (Tenn. 1997). A valid indictment “must provide a defendant with notice of the offense

charged, provide the court with an adequate ground upon which a proper judgment may be

entered, and provide the defendant with protection against double jeopardy.” State v. Byrd,

820 S.W.2d 739, 741 (Tenn. 1991). “[N]ot only must the government prove the crime it

charges, it must charge the crime it proves.” State v. Goodson, 77 S.W.3d 240, 244 (Tenn.

Crim. App. 2001). Moreover, “after an indictment has been returned, its charge may not

be broadened or changed except by action of the grand jury.” Id.

As this court recently explained,

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A variance results when the evidence at trial does not correspond to

the elements of the offense alleged in the charging instrument. [Keel, 882

S.W.2d at 416]. In many such cases, the evidence establishes the

commission of an offense different from the offense alleged in the charging

instrument. See id. The variance rule is predicated upon the theory that an

accused cannot be charged with one offense and convicted of a completely

different offense. See id. A variance is not fatal unless it can be “deemed to

be material and prejudicial.” State v. Moss, 662 S.W.2d 590, 592 (Tenn.

1984). A variance will not be deemed material and prejudicial in cases where

“the allegations and proof substantially correspond, the variance is not of a

character which could have misled the defendant at trial and is not such as to

deprive the accused of his right to be protected against another prosecution

for the same offense.” Id. Related to a variance, a constructive amendment

of the indictment occurs “when the jury is permitted to convict the defendant

upon a factual basis that effectively modifies an essential element of the

offense charged.” [Goodson, 77 S.W.3d at 244]. When a constructive

amendment occurs, reversal is said to be “automatic, because the defendant

may have been convicted on a ground not charged in the indictment.” Id.

The logic is that a constructive amendment of the indictment, not consented

to by the defendant, does not accomplish the “overriding purpose of notice

to the accused” required of an indictment. See State v. Hammonds, 30

S.W.3d 294, 300 (Tenn. 2000).

State v. Jay W. Edwards, No. E2019-02176-CCA-R3-CD, 2021 WL 2554217, at *16

(Tenn. Crim. App. at Knoxville, June 22, 2021), perm. app. denied, (Tenn. Nov. 17, 2021).

In Goodson, the defendant was indicted for driving a motor vehicle on a revoked

license, but the proof at trial showed that he was driving on a suspended license. 77 S.W.3d

at 244-45. The statute at issue made it a crime to drive with a cancelled, suspended, or

revoked license. See Tenn. Code Ann. § 55-50-504(a)(1). This court found that driving

on a license that was cancelled, suspended, or revoked constituted three separate offenses.

Id. at 244. Additionally, this court found that while the words “suspended” and “revoked”

often were used interchangeably, they had different meanings pursuant to Tennessee Code

Annotated section 55-50-102(42), (47) (1998), which defined “[r]evocation” and

“[s]uspension” of a driver’s license. Id. at 245. Accordingly, this court concluded that a

constructive amendment of the indictment occurred and reversed the defendant’s

conviction of driving on a revoked license. Id.

The State contends that the words “force or coercion” and “consent” are related

concepts that prove the elements of rape. We agree. As this court has recognized, “In most

rape cases, the ‘lack of consent’ element is associated with the victim being forced or

coerced into the sexual acts.” State v. Raymond Mitchell, No. 1996-00008-CCA-R3-CD,

1999 WL 559930, at *6 (Tenn. Crim. App. at Nashville, July 30, 1999). However, “[t]his

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Court presumes that the General Assembly used each word in a statute deliberately, and

that the use of each word conveys a specific purpose and meaning.” State v. Strode, 232

S.W.3d 1, 11 (Tenn. 2007). “Accordingly, we ‘must give effect to every word, phrase,

clause, and sentence in constructing a statute.’” Id. (quoting State v. Jennings, 130 S.W.3d

43, 46 (Tenn. 2004)). Our Code defines “force” as “compulsion by the use of physical

power or violence” and “coercion” as “threat of kidnapping, extortion, force or violence to

be performed immediately or in the future or the use of parental, custodial, or official

authority over a child less than fifteen (15) years of age.” Tenn. Code Ann. §§ 39-11-

106(a)(12), -13-501(1). “All of the sexual assault crimes contemplate the lack of effective

consent by the victim.” State v. Ealey, 959 S.W.2d 605, 611 (Tenn. Crim. App. 1997).

“Effective consent” means “assent in fact, whether express or apparent, including assent

by one legally authorized to act for another. Consent is not effective when [it is] [i]nduced

by deception or coercion.” Tenn. Code Ann. § 39-11-106(a)(9).

In this case, the State charged the Appellant with rape by force or coercion, not rape

by lack of consent, but referred to the two theories of rape interchangeably. Unlike the

State in Goodson, though, the State in this case introduced evidence of rape by force as

alleged in the indictment. The victim testified that she told the Appellant to stop, that she

pushed him, and that he would not get off of her. Moreover, after the proof and closing

arguments, the trial court properly instructed the jury on rape by force or coercion; the trial

court did not instruct the jury on rape by lack of consent or define “consent.” We note that

the trial court also instructed the jury that “[s]tatements, arguments, and remarks of counsel

are intended to help you in understanding the evidence and applying the law, but they are

not evidence.” Generally, we presume that a jury has followed the trial court’s instructions.

See State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). Therefore, we conclude

that a constructive amendment of the indictment and a fatal variance did not occur in this

case and that the Appellant is not entitled to relief.

B. Sufficiency of the Evidence

In a related argument, the Appellant contends that the evidence is “devoid of any

proof” that he used force or coercion to accomplish the penetration. The State argues that

the proof shows both force and coercion. We conclude that the evidence is sufficient to

support the conviction.

When an appellant challenges the sufficiency of the convicting evidence, the

standard for review by an appellate court 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 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate

view of the evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning

the credibility of witnesses and the weight and value to be afforded the evidence, as well

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as all factual issues raised by the evidence, are resolved by the trier of fact. State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence,

nor will this court substitute its inferences drawn from the circumstantial evidence for those

inferences drawn by the jury. Id. Because a jury conviction removes the presumption of

innocence with which a defendant is initially cloaked at trial and replaces it on appeal with

one of guilt, a convicted defendant has the burden of demonstrating to this court that the

evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140

(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and

‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances

are consistent with guilt and inconsistent with innocence, are questions primarily for the

jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313

S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘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 State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

As stated previously, rape as charged in this case is unlawful sexual penetration of

a victim by the defendant when force or coercion is used to accomplish the act. Tenn. Code

Ann. § 39-13-503(a)(1). “‘[F]orce’ means compulsion by the use of physical power or

violence and shall be broadly construed to accomplish the purposes of this title.” Tenn.

Code Ann. § 39-11-106(a)(12). “‘[C]oercion’ means threat of kidnapping, extortion, force

or violence to be performed immediately or in the future or the use of parental, custodial,

or official authority over a child less than fifteen (15) years of age.” Tenn. Code Ann. §

39-13-501(1).

First, the Appellant contends that while there was substantive proof that he

penetrated the victim, there was no substantive proof that he used physical force to do so.

However, the victim, a thirteen-year-old female, testified that the Appellant was on top of

her, that she told him to stop, and that she tried to push him away. The Appellant, a grown

man, refused to get off of the victim and penetrated her.2 The victim said that the

penetration hurt and that she bled afterward. Taken in the light most favorable to the State,

the evidence shows that the victim resisted the Appellant. Therefore, we have no hesitation

in concluding that the Appellant used force to accomplish the penetration.

The Appellant also contends that the proof fails to show coercion because his threat

to harm himself and the victim occurred after the penetration was completed. The State

2

According to the Appellant’s presentence report, which was prepared in September 2020, the

Appellant was forty years old and weighed one hundred seventy-five pounds. Although the State did not

present evidence of the Appellant’s age and weight at trial, the jury was able to view him in the courtroom.

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argues that because the victim never said when the threat occurred, a reasonable jury could

infer that he made the threat for the purpose of accomplishing the rape.

The rape statute provides that the coercion must be used “to accomplish the act,”

and it was the State’s burden to prove coercion beyond a reasonable doubt. The victim

testified that the Appellant woke her by shaking her. The State asked if he said anything

to her when he woke her, and she said no. The victim did not say that the Appellant made

any threat to her before or during the penetration. The State later asked her why she did

not tell anyone about the rape, and she said the Appellant threatened to harm himself or

her. Therefore, we think that it was reasonable for the jury to infer that the threat occurred

after the act, not to accomplish the act. In any event, the evidence is sufficient to support

his conviction of rape by force.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

judgment of the trial court.

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NORMA MCGEE OGLE, JUDGE

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