# FILED
August 6, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF T ENNESSEE AT JACKSON DECEMBER 1998 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9708- CR-00319 Appellee, ) ) Shelby County 96-11229 V. ) ) Honorable Arthur T. Ben nett, Judge ) ANTONIO M. KENDRICK, ) (Aggravated Rape) ) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE: PAMELA J. DREWERY JOHN KNOX WALKUP 416 E. Lafayette Attorney General & Reporter Jackson, TN 38303 (on appeal) MARVIN E. CLEMENTS, JR. Assistant Attorney General JOSEPH S. OZMENT 425 Fifth Avenue North 217 Exchange Avenue Nashville, TN 37243 Memphis, TN 38105 (at trial) WILLIAM L. GIBBONS District Attorney Gener al PERRY HAYES Assistant District A

ttorney General Criminal Justice Center, Third Floor 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: ___________________ AFFIRMED
JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The defendant, Antonio M. Kendric k, was convicted of aggrava ted rape following a jury tri al in the Shelby County Cr iminal Court. He was

sentenced as a Range I offender to twenty year s in the Tennessee Department of Correction, to be served consecutively to a sentence for a prior unr elated rape conviction. The defendant now appeals, challenging the suf ficiency of the evidence, certain jury instructions, the composition of his jury , and his sentence. We AFFI RM the judgment of the trial cour t.

BACKGROUND On May 15, 1995, the defendant approache d the victim, Marcelita Hester, and, brandishing an object that s he thought to be a wrench, forced her to get into his car. The defendant drove with Hester in the car for several minutes. While he drove, the defendant asked Hester whether she remembered him. He told her to “take a good look” and said that she had cursed him at a grocery store earlier. Hester said

that she did carefully obs erve the defendant but remembered neither him nor or any such incident.

The defendant continued to drive f or some time. Hester testified that she focused on his voice and features during this time so that she could iden tify him later. She also observed num erous details of the defendant’s car. The defendant stopped and demanded that she per form oral sex, threateni ng to “bash [her] head” if she di d not. Hester complied. While she did, the defendant resumed driving for another five to ten minutes. He then stopped again , forcibly removed Hester’s clot hes, and forcibly engaged in v aginal sex with her. He then drove Hester to her aunt’s home and released her. He bac ked down the street, preventing Hester from o bserving his license pl ate.-3- Hester immediately c

alled the police and reported the rape. She subsequently identified a per son from a photo lineup as her assailant. After investigation, however, pol ice concluded that this ident ified person could not have committed the crim e.
Three or four days after t he rape, Hester saw the defendant driving near her home. Recognizing both t he car and the defendant, Hester f ollowed him and obtained his license plate num ber. She then supplied this i nformation to the police, and the defendant was arr ested and indicted for aggravat ed rape.

JURY INSTRUCTIONS The defendant alleges two err ors in the trial court’ s instructions to the jur y. First, he argues that the trial court erred in failing to charge criminal attempt as a lesser included offense. A recent Supreme Court deci sion compels our concluding that this omission, even if in error, was harmless.
Clearly, criminal

attempt is a lesser inc luded offense and must be charged when supported by the evidence. See State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996). However, “[a] trial judge . . . need onl y instruct on lesser off

enses in circumstances in w

hich evidence in the recor d would support a convicti on for the lesser offenses.” Id. at 310, 311 & n.5. The defense theor y at trial was mistaken identity and alibi, not that the victim was not raped. The defenda nt did not suggest that the offense was i ncomplete. The state therefor e argues that the attempt need not have been charged bec ause evidence did not support att empt.
In theory, the jury might have credited evidence that w ould support an attempted rape conviction but declined to credit the vic tim’s testimony that penetration occurred, even in the absence of any sugg estion that penetration did not occur. In addition, the at tempt statute clearly st ates, “It is no defense to prosecution for criminal attempt that the offense attempted was actu ally-4- committed.” Tenn. Code A nn. § 39-12-101. Nevertheles s, we need not decide whether an attempt instruction was required. Even assuming that the trial court erred, any error was clearly harmless.

In State v. Williams , 977 S.W.2d 101 (Tenn. 1998), t he Tennessee Supreme Court held that a tr ial court’s failure t

o instruct the jury as t

o a lesser offense was harmless err or when the jury was ins tructed as to another lesser offense but convicted the defendant of the greatest charged offense. I n the present case, the trial co urt instructed the jury on aggravated rape, rape, sexual battery, aggravated assault, a nd assault. As in Williams , the jury in the instant case convicted the defendant of the greatest charged offense. Thus , following Williams , we find that omitting a charge of attempt as an additional lesser offense was harmless. This i ssue is without merit.
The defendant also argues that the “ reasonable doubt” charge was deficient in that it did not include the phrase “moral certainty.” This Co urt has repeatedly reviewed reasonable doubt instructions si milar to the instructi on in the instant case and concluded that t he lack of “moral cert ainty” language does not render the instruction cons titutionally deficient. See, e.g. , State v. Jose Holmes , No. 02C01-9505-CR-00154 (Tenn. Crim. App. filed Dec. 10, 1997, at Jackson).

SUFFICIENCY OF EVIDENCE The defendant asserts that the vi ctim’s identificati on of him was infirm and that, absent this identification, the evidence is insufficient to support the jury’s verdict. The defendant points out that Hester mistakenl y identified another person from a photo lineup as her assailant and mistak enly identified the defendant’s car as a Buick Skylark rather than a Buick LeSabre. Nevertheless, Hester identified the defendant in court and related numer ous details of the interior of the defendant’s v ehicle. The jury was entitled to credit this ev idence.-5- Hester also subsequently r ecognized the defendant and the vehicl e used in her assault as he drove down her street. This issue is without merit.

JURY COMPOSITION The defendant next argues that the service of a depu ty jailer, Gloria Nathaniel, as a juror in his case compromised the verdict. The defense questioned Nathaniel regardi ng her prior knowledge of t he defendant from the jail but declined to chall enge her, although the defense had not ex ercised all of its challenges. Here, the defendant argues that Nathan iel was not fully honest with the defense during the voi r dire when she “denied kno wing the appellant.” He also suggests, although adm itting “there is no dir ect proof,” that Nathaniel inappropriately influenced other jurors.
At a hearing on the defense’s m otion for a new trial, N athaniel testified that she did not know the defendant but that she knew of him; specifically, she said she knew that he had been housed at the jail. She stated that s he did not know what the defendant was accu sed of prior to trial, that she had never looked at the defendant’s record or “ rap sheet,” that none of her co- workers had ever discussed the defendant’s rec ord with her, that her vague knowledge of the defendant did not affect her vote on the verdict, and that she did not influence any of the other jurors wi th such information. The t rial judge specificall y found no indication of any bias or prejudice. The trail court did not abuse its discretion in denying the motion for a new t rial. This issue is without merit.

SENTENCING Finally, the defendant argues that the trial court err oneously applied certain enhancement factors and that his sentence is, ther efore, excessive. Appellate review of a challenge to the length or manner of service of a sente nce-6- is de novo on the record, “ with a presumption that the determinations made by the court from which the appeal is taken are correc t.” Tenn. Code Ann. § 40-35- 401(d). This presumpti on “is conditioned upon the affi rmative showing in the record that the trial cour t considered the sentencing pr inciples and all releva nt facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The appellant carries the b urden of showing that his sent ence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Cri m. App. 1996).

At the time of the instant offense, the defendan t had been recently convicted of another unrelated rape and was on bail pending appeal of that conviction to this Court

. See State v. Antonio Kendrick , No. 02C01-9604-CR00121 (Tenn. Crim. App. fi led Nov. 5, 1997, at Jackson) . Accordingly, the tri al court found applicable enhancem ent factors (1) and (13)--that the “defendant has a previous history of criminal convictions or criminal behavior

in addition to those necessary to establis h the appropriate range”; and th at the “felony was committed while on [appeal bond] from a prior felony conviction.” Tenn. Code Ann. § 40-35-114(1), (13).
The defendant argues that because hi s appeal had not been resolved at the time of the sentencing hear ing in the present case, his conviction was not “final” and could support neither enhancement. We dis agree. The defendant was on bail from a prio r felony conviction at the time of his present felony offense; potential reversal of his prior conviction does not alter this fact. Thus, enhancement factor (13) woul d apply even if his prior rape conviction had been ultimately overturned. We also find that the defendant’s prior trial court conviction, although still subject to appeal, was suffi cient to establish the applicability of enhancement factor (1). Moreover, although the def endant did not include his presentence report on this appeal, the record indica tes that his-7- criminal history may comprise additional behavior that would further support application of this enhanceme nt. This issue is without merit.

CONCLUSION The judgment of the trial court is AFFIRMED.

_____________________________ JOHN EVERETT WILLIAMS , Judge

CONCUR:

(See dissenting opinion) GARY R. WADE, Presidi ng Judge

_____________________________ THOMAS T. WOODALL, Judge