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11/30/89 STATE TENNESSEE v. NOLA MAE CARMLEY AND

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT KNOXVILLE


November 30, 1989

STATE OF TENNESSEE, APPELLEE,
v.
NOLA MAE CARMLEY AND HUGH RONALD CARMLEY, APPELLANT

From MONROE COUNTY, Honorable R. Steven Bebb, Judge. Aggravated Rape

Appeal Denied March 5, 1990 and

Lyle Reid, Judge, Jerry Scott, Judge, Joe B. Jones, Judge, Concur

The opinion of the court was delivered by: Reid

LYLE REID, JUDGE

This case presents appeals as of right by the appellants, Nola Mae Carmley and Hugh Ronald Carmley, from convictions of aggravated rape.

The appellant Nola Mae Carmley assigns for review the sufficiency of the evidence, and both appellants assign for review the admission of evidence, jury instructions, the refusal to grant new trials on the basis of newly discovered evidence and the sentences.

The record does not show reversible error.

SUFFICIENCY OF THE EVIDENCE

The 12 year old victim testified that several times each week over a period of several years her father committed acts which she described in detail and which constitute "sexual penetration" as provided in T.C.A. § 39-2-602(11). She testified that about twice each week her mother committed acts which she described in detail and which constitute "sexual contact," as provided in T.C.A. § 39-2-602(10). She further testified that the acts sometimes were committed by the appellants in the presence of each other and sometimes separately. The State introduced several books which graphically depict sexual acts between adults and children. The victim testified that the material, the joint property of the appellants, was shown or read to her prior to or during times when the sexual acts were committed. The appellants removed their and the victim's clothing when the acts were committed. A pediatrician described the condition of the victim's vagina and stated that his finding was consistent with frequent and recent penetration.

Defense witnesses testified that the acts described by the victim did not occur, that there was no physical contact between the victim and the appellants which could be deemed sexual and that the victim's testimony was completely fabricated.

There is evidence that the victim was less than 13 years of age, there was sexual penetration of the victim by the father while the mother was present, aiding and abetting.

On appeal a guilty verdict approved by the trial Judge accredits the testimony of the witnesses for the State; the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences therefrom; the verdict removes the presumption of innocence and raises a presumption of guilt; and the appellants have the burden of showing that the evidence preponderates against the verdict. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978); State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978); State v. Townsend, 525 S.W.2d 842 (Tenn. 1975); State v. Grace, 493 S.W.2d 474 (Tenn. 1973); and Anglin v. State, 553 S.W.2d 616 (Tenn. Crim. App. 1977).

For purposes of appellate review, the evidence is sufficient to support the jury's findings of guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Williams, 657 S.W.2d 405 (Tenn. 1983); and Rule 13(e), T.R.A.P.

ADMISSION OF EVIDENCE

The appellants contend the admission of the sexually explicit material was error.

The possession and use of sexually explicit material evidencing a substantial appeal to the prurient interest was relevant, under the circumstances of this case, to the offenses charged. The evidence was admissible. State v. Banks, 564 S.W.2d 947 (Tenn. 1978).

JURY INSTRUCTIONS

Nola Mae Carmley complains that the court charged aiding and abetting. The victim testified her father had intercourse with her while her mother was present and participating in sexual acts. That testimony was evidence that the mother was "present, aiding and abetting, or ready and consenting to aid and abet," in the offense, within the meaning of T.C.A. § 39-1-303. Hall v. State, 584 S.W.2d 819 (Tenn. Crim. App. 1979).

Nola Mae Carmley complains that the court refused to charge the jury with failure to report child abuse. The appellant was not charged with the failure to report child abuse, T.C.A. § 37-1-403, and that offense is not a lesser offense of aggravated rape.

Hugh Ronald Carmley complains that the court refused to charge aggravated sexual battery, assault with intent to commit rape and assault with intent to commit sexual battery.

The accused is entitled to appropriate instructions as to lesser offenses only if there is some evidence of such offenses. On the evidence in this case, the jury could only find the appellant guilty of aggravated rape or not guilty. The evidence does not permit an "inference of guilt as to such lesser included offenses." Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975).

NEWLY DISCOVERED EVIDENCE

In support of their motion for a new trial, the appellants submitted evidence that the victim told her 13 year old cousin that a boy her age had put his hands on intimate parts of her body and that the appellants knew of the statement prior to the trial.

In State v. Goswick, 656 S.W.2d 355, 358, (Tenn. 1983), the Supreme Court approved the rule stated in Taylor v. State, 171 S.W.2d 403 (Tenn. 1943):

In passing on a motion for a new trial for newly discovered evidence when (1) reasonable diligence has been shown, and (2) its materiality is evident and, therefore, likely, as here, to change the result, if produced and accepted by the jury, the granting of a new trial is a matter of right.

Since the victim's statement was reported to the appellants prior to trial and there is no reasonable explanation why the information was not given to their counsel, the record does not support their contention that they were diligent in the preparation of their defense with regard to this statement. The evidence would not contradict the proof that the victim was under 13 years of age or that she was subjected to unlawful sexual acts. If accepted by the jury, the testimony would not likely change the result of the trial. A new trial will not be granted on the basis of newly discovered evidence when it appears that the evidence would have no effect other than to discredit the testimony of a witness. State v. Arnold, 719 S.W.2d 543 (Tenn. Crim. App. 1986).

The court properly refused to grant a new trial.

SENTENCES

Nola Mae Carmley was given a sentence of 50 years for an especially aggravated offense. She does not contend that the Range II sentence is illegal, only "excessive in context of her involvement in the crime charged." The Range II sentence for aggravated rape is 40 years to life. T.C.A. § 39-2-603, T.C.A. § 40-35-109(b) (1988 Supp.).

Upon a de novo review of the record without a presumption of correctness and according to the principles and procedures set forth in the Criminal Sentencing Reform Act, as interpreted by the Supreme Court in State v. Moss, 727 S.W.2d 229 (Tenn. 1986), the sentence of 50 years is not excessive. T.C.A. § 40-35-402(d) (Supp. 1988).

Contrary to the appellants' insistence, the sentences in this case are not controlled by Chapter 591 of the Public Acts of 1989. T.C.A. § 40-35-117 (1989 Supp.).

The judgments of conviction and the sentences are affirmed.

19891130

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