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Crim v. State

Court of Criminal Appeals of Tennessee, Nashville

September 5, 2017

JOHN C. CRIM
v.
STATE OF TENNESSEE

          Assigned on Briefs February 15, 2017

         Appeal from the Criminal Court for Wilson County No. 08-CR-567 Brody N. Kane, Judge

         A jury convicted Petitioner, John C. Crim, of eight counts of rape of a child and six counts of aggravated sexual battery. Petitioner sought post-conviction relief, and his petition was denied after a hearing. On appeal, Petitioner asserts that his trial counsel were deficient in omitting an argument pertaining to the suppression of his confession; in failing to obtain the testimony of a witness; in failing to object to jury instructions regarding the mens rea required for aggravated sexual battery; and in failing to object to jury instructions regarding unanimous acquittal. After a thorough review of the record, we conclude that Petitioner has not established any grounds for relief, and we affirm the judgment of the post-conviction court.

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

          Eric L. Phillips, Lebanon, Tennessee, for the appellant, John C. Crim.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Thomas Swink, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Trial

         Petitioner was indicted for numerous sexual crimes that he committed against his daughter between 2004 and 2007, during the times he exercised his right of visitation in the summer months. The proof at trial included the victim's testimony regarding the crimes and Petitioner's interview with law enforcement, during which he acknowledged having repeated sexual contact with the child from the time she was seven years old. See State v. John C. Crim, No. 2010-01281-CCA-R3-CD, 2012 WL 76891, at *5 (Tenn. Crim. App. Jan 10, 2012), perm. app. denied (Tenn. Apr. 12, 2012).

         Prior to trial, Petitioner's two attorneys sought to have the recorded interview suppressed. We note here that the audio recording of the interview was not included in the record on direct appeal or in the post-conviction record. See id. at *7 ("Initially, we note that in ruling on the motion to suppress, the trial court heavily relied on Crim's tape recorded interview, which is not contained in the record on appeal."). The parties, prior to the post-conviction hearing, stipulated to the authenticity of certain trial transcripts, including the "Requested Excerpt from Court Proceedings" regarding the suppression hearing and a transcript recording the court's ruling on the issue. These transcripts were not included in the post-conviction record but are part of the direct appeal. We note that the transcript of the hearing is labeled an "excerpt" and that the transcript contains only the testimony of law enforcement. However, the hearing also included the testimony of Petitioner, and the court made a specific finding that Petitioner's testimony was not credible, in particular finding that he testified he was intimidated but that the audio recording demonstrated that he was at ease and laughing. A transcript of an excerpt from Petitioner's testimony was attached to Petitioner's pro se post-conviction petition but was not listed in an agreed order regarding the authenticity of certain transcripts and was not part of the record on direct appeal. It is unclear if other witnesses testified at the suppression hearing.

         In the written motion to suppress, trial counsel argued that Petitioner was "retained . . . for an unreasonable period of time while the detective made subtle threats, made promises, and exerted improper influence." The motion also detailed the alleged promises and cited Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187 (1897), for the proposition that a confession cannot be extracted by threats or promises. At the commencement of the hearing, the prosecutor stated, "just for clarification . . . I want to make sure we're here just on the narrow issue of whether Mr. Crim was in custody during this interview." The trial court replied that it believed that "it is that one single issue to determine whether or not he was" because the parties had stipulated that warnings regarding self-incrimination were not given prior to the interview. The defense did not respond.

         At the suppression hearing, Detective Brian Harbaugh testified that he was contacted by authorities in Pennsylvania regarding the victim, that he contacted Petitioner, and that the two arranged a mutually convenient time for Petitioner to come to the police station for an interview. Detective Harbaugh explained to Petitioner the reason he wanted to speak to him at the time they arranged the interview. Detective Harbaugh testified to the circumstances of the interview bearing on the question of custody, including that Petitioner was told he was free to leave and that his route of egress was open.

         During the hearing, trial counsel questioned Detective Harbaugh regarding statements he had made to Petitioner calculated to elicit a confession. Detective Harbaugh acknowledged that he repeatedly assured Petitioner that "what was said in that room would stay in that room." He also told Petitioner that he would "help" him and that he and his family could then "go back to whatever they do." Detective Harbaugh explained that incarceration would help Petitioner refrain from future crime and that "we obviously have different understandings of what help is, and I'm aware of that. I know obviously if I told him that my form of help is for him to be incarcerated, that wouldn't necessarily agree with him, so I don't get into details about it." He also acknowledged saying that he "just wanted to work things out in that room" and again explained that he meant he would incapacitate Petitioner through incarceration. He acknowledged bluffing and that he told Petitioner that a laboratory was examining DNA from the victim's clothing to imply that law enforcement knew more than they did. He denied promising Petitioner anything. Detective Harbaugh's testimony at trial was consistent with his testimony at the suppression hearing. He acknowledged assuring Petitioner that his statement would "stay in that room" and stated he may have told him that "the consequences for an honest person would be counseling and he and his group would get back to whatever it is they do." He acknowledged he was not completely honest with Petitioner.

         The trial court found that Petitioner was not in custody. The trial court noted that the tone of the interview remained "conversational, not confrontational, " that Petitioner was laughing throughout the interview, and that Petitioner gave long responses which volunteered information beyond that requested by law enforcement. The trial court further found that while Detective Harbaugh stated that police were testing the victim's clothing when they were not, Detective Harbaugh also noted to Petitioner that "[s]ometimes this stuff just doesn't pan out." The trial court found that Detective Harbaugh's representation that Petitioner's statement would "stay here" was not made in the context of not sharing the information with prosecutors but "strictly in the context of not sharing it with the other members of Mr. Crim's family. . . . It was regarding his family and for no other reason." This ruling was based on the audio recording and the context of the statement. The motion to suppress was denied, and the audio recording was admitted at trial.

         At trial, the jury was instructed that the State was required to prove each element of each offense beyond a reasonable doubt. The jury was also instructed:

If you unanimously find the Defendant guilty of the indicted offense beyond a reasonable doubt you do not consider any lesser included offense to that count of the indictment. If you unanimously have reasonable doubt as[] to the Defendant's guilt to the more serious indicted offense, then and only then, will you consider the Defendant's guilt or innocence of the lesser included offenses. (Emphasis added).

         The instruction regarding unanimous reasonable doubt was repeated for each offense.

         Regarding the aggravated sexual battery charges, the jury was instructed that the State must prove:

(1) The Defendant had unlawful sexual contact with the alleged victim in which the Defendant intentionally touched the alleged victim's intimate parts, or the clothing covering the immediate area ...

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