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January 11, 1993


Hamilton County. Hon. Joseph F. Di Risio, Judge

Crawford, Scott, Wade

The opinion of the court was delivered by: Crawford

Defendant, Robert Allen Garner, appeals as of right from judgments entered by the Hamilton County Criminal Court on jury verdicts convicting him on two counts of statutory rape. The trial court sentenced defendant to one year on each count to run consecutively subject to other conditions not material to this appeal.

At the jury trial on July 23, 1991, defendant offered no proof in his behalf and we will briefly review the testimony adduced.

Rebecca Jamison testified that she is seventeen years old and that when she was fourteen she started participating in gymnastics under the direction of her coach, the defendant Garner. In addition to her contact with defendant through gymnastics, she earned money by cleaning defendant's home and the gym.

When she was fifteen years old, she along with two other gymnasts and defendant's wife, went with defendant on a trip to Florida. They spent two evenings in the motel and Ms. Jamison testified that on each of the evenings, defendant placed his hands underneath her clothes and on her privates and she stated that the other two girls saw the defendant do this. She further testified that later she and some of the girls were at a "sleep over" at the defendant's house and the defendant took her for a walk to tell her of his feelings for her and he also attempted to kiss her. Later that evening, she was asleep on the couch watching television and she awoke with her head in his lap.

She further testified that on September 29, 1989, while she was at the defendant's house doing her cleaning work, she and the defendant engaged in sexual intercourse. She admitted that she developed feelings for the defendant and that she had written various letters and cards to defendant. Some of these were introduced into evidence and reflected her love and desire for defendant.

She also testified that as part of their gymnastic training, the girls would go jogging and on many occasions would do so from the defendant's home. On some of these occasions, Jamison would stay behind and they would engage in sex. Defendant always locked the door after the other girls left.

She testified that they had sex about three times a week over a period of approximately seven months and that they always used condoms. She further testified that they engaged in both vaginal sex and oral sex.

Teresa Jamison, Rebecca's mother, testified that in the summer of 1989, she noticed that her daughter was acting strangely, had stopped socializing with her friends, and was having trouble eating and sleeping. She was examined by a doctor and it was suggested that she had an athletic disorder stemming from too much exercise. Her parents cut back on her gymnastic training. In April of 1990, she and her husband suspected, after taping a conversation between the defendant and their daughter, that the relationship between the defendant and the daughter involved more than friendship. The tape was offered into evidence and over the objection of defendant, the court allowed the introduction of the tape. The taped conversation revealed that defendant told Rebecca Jamison that he loved her but because of her age and the problem with her parents he did not expect a relationship with her until she reached eighteen years of age. Mrs. Jamison further testified that after the taped conversation, the Jamisons went to Gatlinburg on a family outing and while there, her daughter admitted that she and the defendant had a sexual relationship.

Upon notifying the police of this situation, the second taped conversation between the defendant and her daughter was arranged. Rebecca Jamison was recalled to the stand for the introduction of this tape and testified that she consented to the tape. Though the tape is rather long and involved, the general gist of the tape was Rebecca telling the defendant that she was afraid that she might be pregnant because her period was late. She asked the defendant what she should do. Generally, his response was asking if she was alright. She repeatedly stated that she was afraid there might have been some defect in the condoms that were used, but defendant made no comment concerning these statements. When Rebecca asked the defendant if he thought she could be pregnant, he replied, "No, I don't think you could be."

The State also introduced the testimony of Tonya Carpenter, another gymnast who went on the Florida trip referred to in Rebecca's testimony. She denied that she knew anything about the occurrences on the Florida trip testified to by Rebecca. She also testified that as part of their training, the girls often went jogging from the defendant's house and sometimes Rebecca did not go. They were usually gone on the jogs approximately 30 to 35 minutes and on one occasion when Rebecca did not go the defendant's door was locked on their return.

The State also introduced the testimony of Lisa Savage, the owner and director of a gym in Knoxville who had referred Rebecca to the defendant's gym when the family moved to Chattanooga. She testified that she is defendant's friend and had spoken with defendant by telephone about his relationship with Rebecca. She testified that defendant admitted that he felt close to Rebecca and actually loved her.

At the Conclusion of the State's proof, defendant made a motion for acquittal on the grounds that Rebecca Jamison was an accomplice as a matter of law and that there was no corroboration of her testimony. The trial court overruled the motion and the jury returned guilty verdicts on both indictments.

Defendant's first and second issues for review are whether the trial court erred in not instructing the jury that the victim Rebecca Jamison was an accomplice as a matter of law and whether there was corroborating evidence.

The trial court instructed the jury on the definition of an accomplice and left it for the jury's determination as to whether Rebecca Jamison was in fact an accomplice. The jury was also instructed of the necessity of corroboration if in fact Rebecca Jamison was an accomplice.

An accomplice is one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime. Clapp v. State, 94 Tenn. 186, 30 S.W. 214 (1895); Prince v. State, 529 S.W.2d 729 (Tenn.Crim.App. 1975). A child, even though legally incapable of consenting to a crime, may, nevertheless, be an accomplice. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959); Henley v. State, 489 S.W.2d 53 (Tenn.Crim.App. 1972).

A defendant cannot be convicted upon the uncorroborated testimony of an accomplice. Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (1964).

In the case before us, it is clear that the victim, Rebecca Jamison, was a willing participant in the sexual liaison over a period of approximately seven months. Her letters to defendant could be considered as encouraging the relationship. It was only after her parents' suspicions were aroused that the liaison was revealed and her attitude changed. The uncontroverted proof in this record establishes that the victim was an accomplice as a matter of law. See Scott v. State, 207 Tenn. 151, 338 S.W.2d 581 (1960); Ballew v. State, 498 S.W.2d 918 (Tenn.Crim.App. 1973).

The State asserts that even if the trial court erred in not holding Rebecca an accomplice as matter of law, the error was harmless. We must respectfully disagree. Rather than unduly lengthening this opinion, suffice it to say that the jury, although contrary to the uncontroverted facts, could have based its decision on a finding that Rebecca Jamison was not an accomplice and that her testimony alone was sufficient for a conviction. The nature of the error requires a reversal of the convictions.

Defendant insists that there was no corroboration and defendant's conviction must be reversed and the indictment dismissed.

In Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (1964), our Supreme Court said:

The rule is well settled in this State that a defendant can not be convicted upon the uncorroborated testimony of an accomplice in the crime. The test of the legal sufficiency of corroboration has been variously phrased. A statement of the rule that has been widely approved in our cases is this:

"The rule is that, to sufficiently corroborate the testimony of the accomplice, there should be some fact testified to, entirely independent of the accomplice's evidence, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it" (Clapp v. State, 94 Tenn. 186, 195, 30 S.W. 214, 216). Robison v. State, 84 Tenn. 146, 148; Stanley v. State, 189 Tenn. 110, 115, 222 S.W.2d 384; Sherrill v. State, 204 Tenn. 427, 433 321 S.W.2d 811.

Another statement of the rule by 2nd Wharton's Criminal Evidence (12th Ed.), sec. 468, pp. 257-258, which is supported by cases from many states, including our own, is this:

"By judicial decision and by express statutory provision, the corroboration of an accomplice, when necessary, is not sufficient if it merely shows the commission of the offense, or the circumstances thereof, or that the accomplice and the defendant are acquainted or connected. There must be independent evidence supporting the testimony of the accomplice or tending to confirm him, which must be of a substantive character, and must tend to connect the defendant with the commission of the crime charged or to identify him as the guilty person, and which is inconsistent with his innocence."

Speaking for the English Court of Criminal Appeals in The King v. Baskerville [1916], 2 K.B. 658, 10 British Ruling Cases, 337, 346, Lord Reading, Chief Justice, stated the rule thus:

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it."

Evidence which merely casts a suspicion on the accused or only shows he had an opportunity to commit the crime, is legally insufficient to corroborate the testimony of the accomplice. (citations omitted).

377 S.W.2d at 938, 939.

Generally, the question of corroboration of an accomplice's testimony is for the jury to determine. Clapp v. State, 94 Tenn. 186, 30 S.W. 214 (1895). In Hawkins v. State, 4 Tenn. Crim. App. 121, 469 S.W.2d 515 (1971), the Court said:

The quantum of evidence sufficient to corroborate the testimony of an accomplice is for the determination of the jury. From the facts proved in evidence the jury is entitled to draw reasonable inferences, and this Court may not substitute its judgment or inferences for those of the jury. (citations omitted).

469 S.W.2d at 520.

The State contends that Ms. Jamison's testimony was corroborated in several ways. She testified that on some occasions when the other students would go jogging she would stay behind with defendant in his home and have sex with him. On these occasions, the defendant would always lock the door while the other students were gone. Tonya Carpenter testified that on one occasion when she returned from jogging to the defendant's home, she found the door locked. The State also asserts that the taped telephone conversations contained corroborating evidence. Particularly, as pointed out, in the second taped conversation between defendant and Ms. Jamison, the defendant's responses to questions from Ms. Jamison was sufficient to create an inference that they had been involved in an intimate relationship. Although the evidence relied upon by the State as corroborating proof is minimal, it is for the jury to determine whether the offered proof is corroborative evidence of the commission of the crime.

Since the case will be retried, we should consider defendant's last issue which is whether the trial court erred in admitting into evidence over defendant's objection the tape recording of April 4, 1990.

The tape recording in question was a tape recording of a telephone conversation which was initially started between Rebecca Jamison and the defendant. Teresa Jamison, Rebecca's mother, consented to the recording of the conversation but was not an initial party to the conversation. She later joined in the conversation as a party. Defendant objected to the introduction of the tape into evidence on the authority of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified as 18 U.S.C. §§ 2510 - 2520. The act makes it illegal for any person to willfully intercept any "wire or oral communication" and imposes criminal and civil sanctions for the violation. Consent recordings are exempted from the prohibitions of the act. 18 U.S.C. § 2511 (2)(c)(d). The evidentiary use of intercepted communication is provided for in 18 U.S.C. § 2515 which states:

2515. Prohibition of use as evidence of intercepted wire or oral communications.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from maybe received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

It is uncontroverted in this case that Rebecca Jamison, the initial party to the telephone conversation, did not consent to the recording and did not know that the conversation was being recorded. Except for the time that Mrs. Teresa Jamison, consenting party to the recording, was a party to the conversation, the tape was inadmissible under the terms of the statute.

The judgments of conviction on the jury verdicts are reversed and this case is remanded for a new trial consistent with this Opinion.






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