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01/11/93 STATE TENNESSEE v. ROBERT ALLEN GARNER

January 11, 1993

STATE OF TENNESSEE, PLAINTIFF-APPELLEE,
v.
ROBERT ALLEN GARNER, DEFENDANT-APPELLANT



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 ...


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