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04/29/92 STATE TENNESSEE v. JERRY DWAYNE CAMMUSE

April 29, 1992

STATE OF TENNESSEE, APPELLEE
v.
JERRY DWAYNE CAMMUSE, APPELLANT



Davidson County. Ann Lacy Johns, Judge. (Aggravated Rape and Aggravated Sexual Battery)

Jones, Birch, Jr., Summers

The opinion of the court was delivered by: Jones

The appellant, Jerry Dwayne Cammuse, was convicted of two counts of sexual battery, four counts of aggravated sexual battery, two counts of rape, and fourteen counts of aggravated rape by a jury of his peers. The trial court found that the appellant was a standard offender and imposed the following Range I sentences:

a.) Count 1, aggravated sexual battery, the victim being N.C., ten (10) years in the Department of Correction;

b.) Count 2, aggravated seal battery, the victim being N.C., ten (10) years in the Department of Correction;

c.) Count 3, aggravated sexual battery, the victim being N.C., ten (10) years in the Department of Correction;

d.) Count 4, aggravated sexual battery, the victim being N.C., ten (10) years in the Department of Correction;

e.) Count 5, sexual battery, the victim being N.C., two (2) years in the Department of Correction;

f.) Count 6, sexual battery, the victim being N.C., two (2) years in the Department of Correction;

g.) Count 7, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

h.) Count 9, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

i.) Count 10, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

j.) Count 11, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

k.) Count 12, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

l.) Count 13, rape, the victim being N.C, ten (10) years in the Department of Correction;

m.) Count 14, rape, the victim being N.C., ten (10) years in the Department of Correction;

n.) Count 15, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

o.) Count 16, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

p.) Count 17, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

q.) Count 18, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

r.) Count 19, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

s.) Count 20, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

t.) Count 21, aggravated rape, the victim being R.C., twenty (20) years in the Department of Correction;

u.) Count 22, aggravated rape, the victim being R.C., twenty (20) years in the Department of Correction; and

v.) Count 23, aggravated rape, the victim being R.C., twenty (20) years in the Department of Correction.

The trial court ordered that counts one and nine are to be served concurrently, counts two and ten are to be served concurrently, counts three and eleven are to be served concurrently, counts four and twelve are to be served concurrently, counts five and thirteen are to be served concurrently, counts six and fourteen are to be served concurrently, and counts fifteen and sixteen are to be served concurrently. However, these combinations of sentences are to be served consecutively to each other as well as consecutively to the remaining counts of the indictment, i.e. counts seven, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two and twenty-three. The effective sentence imposed is 280 years in the Department of Correction.

The appellant presents six (6) issues for review. He contends the evidence contained in the record will not support a finding by a rational trier of fact that he is guilty of the offenses of which he stands convicted beyond a reasonable doubt. He further contends that the trial court committed error of prejudicial dimensions in (a) denying his motion to suppress a tape recorded statement he made to law enforcement officers, (b) denying his motion to dismiss those counts of the indictment that simply alleged the year in which the offenses were supposed to have been committed, (c) denying his motion to dismiss those counts of the indictment alleging offenses occurring prior to 1990 on the ground the records of the Department of Human Services had disappeared, (d) permitting the State to introduce the testimony of a nurse practitioner pursuant to the medical diagnosis and treatment exception to the hearsay rule, and (e) imposing excessive sentences.

I.

The appellant was convicted of sexually abusing his three daughters, N.C., T.C., and R.C. He contends that the evidence introduced during the trial would not support a finding by a rational trier of fact that he was guilty of these offenses beyond a reasonable doubt. The appellant treats each child separately in his brief.

The appellant was convicted of two counts of sexual battery, four counts of aggravated sexual battery, two counts of rape, and five counts of aggravated rape. The victim in each count was his oldest daughter, N.C. The record reflects numerous instances of fondling, fellatio, digital penetration, anal penetration, and vaginal penetration of N.C. between 1983 and 1990. This victim testified that she was sexually abused practically every other day.

The appellant contends that he should not have been convicted of the offenses which occurred between 1982 and 1987, the period the appellant was living with the woman he married after divorcing the children's mother. The record clearly reflects that the appellant was sexually abusing N.C. during this period of time. Therefore, this contention is without merit.

The appellant contends that the State failed to establish that the appellant penetrated N.C. as alleged in count seven. The record reflects that the appellant digitally penetrated the victim on this occasion.

The appellant contends that the State failed to establish that the appellant penetrated N.C. as alleged in count fourteen. The record establishes that the appellant vaginally penetrated the victim with his reproductive organ on this occasion.

The appellant was convicted of six counts of penetrating his second oldest daughter, T.C. The record reflects numerous instances of fellatio, digital penetration, anal penetration, and vaginal penetration between 1986 and 1990. According to T.C., this occurred approximately four times a month during this period of time.

This Court is requested to reevaluate and reweigh T.C.'s testimony. Of course, this Court is not permitted to do this.

The appellant was convicted of penetrating his youngest daughter, R.C., on three separate occasions. Two counts involved anal intercourse. One count involved digital penetration of the child's vagina. In this Court the appellant contends that he could only be convicted of one count of anal intercourse because R.C. testified that this type of penetration occurred on only one occasion. R.C. testified that the appellant penetrated her anally on two separate occasions; and he digitally penetrated her on one occasion. Thus, the record supports all three convictions.

This Court finds that the evidence contained in the record is sufficient to support a finding by a rational trier of fact that the appellant was guilty of the offenses of which he stands convicted beyond a reasonable doubt. Tenn. R. App. P. 13(e).

II.

The appellant contends that the trial court committed error of prejudicial dimensions in denying his motion to suppress an audio-taped statement that he gave to police officers. He argues that the statement was involuntary because of the following question posed to him during the statement: "You don't want to put those kids through a court trial do you?" According to the appellant, this statement could have been interpreted to mean that "no trial would have taken place if the appellant gave the statement." Instead, the appellant and the children would receive psychological assistance from an appropriate health-care provider. This argument is predicated upon the following excerpt from the statement:

Q. Your three young daughters, think they are 10, 12 and 14, is that right?

A. Correct.

Q. They were up here earlier talking to the police department. . .talking to Officer West and they said that you had been sexually abusing them and uh. . .you. . . you. . .basically what they told Officer West was that you had been having sexual intercourse with them. You come up here and you tell us that you know you need psychological ...


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