Kevin Batts' Weekly Court Report

THE COURT REPORT

February 5-9, 2007

Kevin Batts

HIGHLIGHTS: Where the appellant was indicted for failing to register as a sexual offender, but convicted for failing to report, the indicted offense impermissibly varied from the proof at trial, and the conviction is reversed and dismissed - State v. Jamie Roskom. Elements of the crime of aggravated child neglect have not been established in State v. Vernita Freeman, where the proof shows the Appellant's acts of abuse produced the child's serious bodily injury, not the Appellant's acts of neglect. In State v. Gregory N. York, the Court of Criminal Appeals declines to impose the ten-year limitation contained in the DUI statute to the implied consent statute to bar the use of any prior DUI conviction more than ten years old.

EVIDENCE/INDICTMENT

State v. Jamie Roskom - M2006-00764-CCA-R3-CD (Bedford County)

Appellant was convicted of violating the Sexual Offender Registration, Verification, and Tracking Act of 2004. On appeal, he argues that he was indicted for failing to "register" as a sexual offender, a violation of section 208 of the Act; however, he was convicted of failing to "report," a violation of section 204. As such, Appellant asserts that he was not given notice of the crime for which he was convicted, and there is "no proof that he committed the offense for which he was indicted." CCA concludes that the indicted offense of failing to "register" impermissibly varied from the proof at trial, which established the separate offense of failing to "report." Accordingly, Appellant's conviction for violation of the "sex offender registration act" is reversed and dismissed.

CONFESSION/EVIDENCE
State v. Vernita Freeman - W2005-02904-CCA-R3-CD (Shelby County)

Affirms first degree felony murder in the perpetration of aggravated child abuse and aggravated child abuse. Appellant's statement confessing her involvement in the death of the eleven-month-old victim was an act of free will and was properly admitted at trial. The proof at trial shows that at no time did any officer threaten, coerce or intimidate the Appellant in order to obtain a confession. Proof established that the Appellant knowingly inflicted, other than by accidental means, serious bodily injury upon the victim. Medical Examiner testified that the autopsy of the victim revealed multiple injuries, blunt trauma to the head, subdural hematoma, and retinal hemorrhage and bilateral perioccipital nerve hemorrhage. Medical Examiner opined that the injuries inflicted were consistent with a child being shaken and then being thrown and hitting a wall. He explained that it would take "an extreme amount of shaking over a prolonged period of time to cause these types of injuries." The term "a prolonged period of time" means "it's more than just a simple shake, or one, or two simple shakes. We're talking as hard as you can and continuously." The Medical Examiner concluded that the victim's injuries were not caused by an accident. The proof is legally sufficient to support the Appellant's conviction for aggravated child abuse, which resulted in the death of the victim. The proof is likewise legally sufficient to establish the Appellant's guilt for felony murder in the perpetration of aggravated child abuse. Conviction for aggravated child neglect is vacated and dismissed. It could be argued that the Appellant's failure to seek medical treatment for her child after inflicting the injuries could have adversely affected the child's health, at least temporarily. However, the proof does not demonstrate that it was the act of neglect which caused the serious bodily injury. Rather, the proof established that it was the Appellant's acts of abuse which produced the serious bodily injury to the minor victim. Thus, the elements of the crime have not been established. The record suggests that the State presented the indictments to the grand jury upon alternative theories of prosecution. At no time during the trial, at closing argument, or at the motion for new trial, did the prosecution attempt to distinguish the separate counts of child abuse and child neglect based upon spatial or factual differences. Moreover, on appeal, the State makes no attempt to defend the Appellant's conviction for aggravated child neglect. The proof at trial has failed to prove the existence of a requisite essential element of the crime; thus, the evidence is insufficient to support the conviction.

AUTOPSY PHOTOGRAPHS

State v. Kenneth D. Hoover - M2006-00139-CCA-R3-CD (Davidson County)

Affirms second degree murder, reckless endangerment, and possession of a weapon with the intent to employ it in the commission of a felony. Trial court did not err in admitting autopsy photographs of the victim. The photographs were relevant to show the angle of the bullet wounds and were neither unduly gruesome nor misleading. The medical examiner used the photographs in conjunction with showing on the defendant's body the paths of the wounds internally. The four photographs were all external views of the entrance and exit wounds on the victim's body. There was no depiction of any internal wounds or surgical openings. In terms of forensic photographs, the images are comparatively benign. The photographs assisted the medical examiner in his testimony concerning the trajectory of the wounds and ultimately explaining the cause of the victim's death. The evidence was probative of relevant issues and unlikely to inflame the passions of a jury.

EVIDENCE

State v. Andrew Soimis - M2005-02524-CCA-R3-CD (Putnam County)

Affirms second degree murder. Evidence sufficient. Defendant argues that witness's testimony was unworthy of belief because witness originally lied to authorities as to his knowledge of the killing. However, witness was thoroughly cross-examined about his statements and admitted the original lies. Witness justified his failure to be truthful by stating that he was afraid of the defendant. Witness saw defendant shoot the victim. His testimony also provided a motive for the defendant's actions, i.e., the defendant's belief that the victim had stolen cocaine from the defendant. Other witnesses also testified to the same motive. The jury heard and weighed the evidence.

IMPLIED CONSENT

State v. Gregory N. York - E2005-02642-CCA-R3-CD (Campbell County)

Defendant appeals from the suspension of his driver's license for two years as a result of violating the implied consent law. The trial court used defendant's prior DUI convictions that were over ten years old to enhance the suspension from one year to two years. Defendant urges CCA to impose the ten-year limitation contained in the DUI statute to the implied consent statute to bar the use of any prior DUI conviction more than ten years old. CCA declines to do so, and affirms.

PRETRIAL DIVERSION
State v. Frank Ray Ruth - E2006-01008-CCA-R10-CD (Hamilton County)

Defendant was indicted for thirty-seven counts of filing false sales tax returns and one count of Class C felony theft of property. The district attorney general denied the Defendant's application for pretrial diversion. The trial court reversed, concluding that the district attorney abused his discretion. The State obtained an interlocutory appeal from CCA. CCA reverses the judgment of the Hamilton County Criminal Court ordering the district attorney general to grant the Defendant diversion. The district attorney did not abuse his discretion by denying the Defendant's application for pretrial diversion. While he considered relevant factors in favor of diversion, such as the Defendant's lack of a prior criminal history and his good family and social history, he concluded that they were outweighed by the length of time and manner in which the Defendant defrauded the State, the need for deterrence in tax reporting, and the Defendant's poor amenability to correction. Such a decision was within his discretion.

EVIDENCE/PREMEDITATION
State v. Wiley Hawthorne - W2005-02320-CCA-R3-CD (Shelby County)

Affirms attempted first degree murder and felony reckless endangerment. Evidence sufficient. Appellant forcibly entered the apartment occupied by his wife and shot her in the right side of her head from a close distance. Appellant then knelt over his wife and shot himself in the head. Both appellant and victim survived their injuries. Also in the apartment that night were the victim's daughter and grandchild. A rational juror could conclude beyond a reasonable doubt that the appellant intended to kill the victim that night. After threatening to kill her earlier during the week of the shooting, appellant returned to her apartment complex with a handgun. He waited for his wife to return home, and when he was unable to enter through the front door, he climbed to the balcony and forced his way into the apartment, all the while carrying the gun in his hand. After he entered through a window, the appellant pointed the gun at his wife's head. After the two stopped struggling over the gun, the appellant raised the gun and fired one shot into the right side of his wife's head from about one inch away. A rational juror could clearly find that the appellant intended to kill the victim, and that the action was premeditated. Furthermore, the jury could conclude that by firing the gun into her head, the appellant acted with the intent to kill the victim. At the very least, the shooting was a substantial step toward the commission of the offense. Therefore, the evidence was sufficient to conclude that the appellant was guilty of attempted first degree murder. Evidence is also sufficient to conclude that appellant's actions placed his wife's daughter in imminent danger of death of serious bodily injury, and that he used a deadly weapon in commission of the offense. Because the appellant spoke with the daughter when he knocked on the front door, he knew that she was in the apartment when he climbed to the balcony and discharged his revolver through the back window and into the apartment. Appellant's action-firing a gun into the occupied apartment-was reckless; i.e., the appellant consciously disregarded a substantial and unjustifiable risk that his actions would place the daughter at imminent risk of death or serious bodily injury. Evidence was sufficient to conclude that the appellant was guilty of felony recklessly endangerment.

Kevin Batts
Deputy Executive Director
Tennessee District Public Defenders Conference
211 Seventh Avenue North, Suite 320
Nashville, TN 37219-1821
(615) 741-5562