### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ugus t 9, 200 5S es sio n

ST A TE OF TE N N ES SE E v

. HO M ER A LS ON M A D D IN , III

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2003-A- 393 Steve R . Dozier , Judge

No. M2004- 02298-CCA -R3-C D - F iled Novem ber 1, 2005

The a ppellant, Homer Alson Maddin, I I I
, was convicted by a jury of four counts of ag g ravated ra

pe in vio lati o n o f T e n n e s s e e Co d e A n n o tate d s e c ti o n 3 9

- 1 3

- 5 0 2

. A s a r e s u lt
, th e ap p e llant was
senten ce d t o an eff

ective se ntence of twenty -five y ear s at one hundre d perc ent. The a ppellant appea ls, arg uing tha t the trial court e rre d in instructing the jury on the mental state of rec kless, and that the trial court err ed in apply ing certain enhanc ement factors to determine his sentence . For the fo llo wi ng re a so ns , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Tr ial Co ur t A ffirm e d.

J ER R Y L. S MI TH , J ., delivere d the opinion of the court, in which, D AVI D G. H A Y ES and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

B. F. “J ack” L owery

and G. Jeff Cher

ry , L ebanon, T ennesse e, for the appe llant, Homer Alson M a d d i n , III

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B re nt C . Ch e rry , A ssi sta nt A tto rn e y Ge ne ra l; Victor S. J ohnson, District Attorney Gene ral; and A my

Eisenbec k, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Thoug h the appe llant does not challeng e the sufficienc y of t he evide nce on a ppeal, we fee l it necessa ry to rec ount the fac t s as t h ey have a bearing on the other issues ra ised on appe al. On Fe bruar y 28
, 2 0 0 3
, th e D a v id s o n Co u n ty G r a n d Ju r y in d ic te d th e ap p e ll a n t o n f o u r c o u n ts of ag g ravated ra

pe. At the jury

trial, the victi m an d the appe llant presente d two conflicting versions of the e vents that led up to the appe llant’s indictment for ag g ravated ra pe.-2-

The victim testified t hat s he was nineteen y ear s old at t he ti me t hat t he crime took place . She admitted that she had know n the appe llant since the eig hth g rade and that the two dated briefly at that time. Two day s prior to the crime, the appellant tele phoned the victim to g ive her his new telephone number.

Acc ording to the victim, on J uly 12, 2002, she and her boy friend, Mike For bes, ra n err ands and then r eturne d to his apartment to hang out with some friends . At some point, the victim took

sever al Xana x

. Eventually
, the vi ctim was ha ng ing out with B rittany Ba y less, drinking wine coole rs and “try ing to ha ve a g ood time.” Ms. Ba y less was upset ab o u t h er re cent br eak- up with her bo y frie nd . T he vic tim

de c ide d th a t sh e wo uldc a ll t he app e lla nt i n a n a tte mpt to g e t some mor e pil ls for he r fr iend to help her calm down. The appellant ag ree d that he would g et the pills and instructed
t h e v ictim and Ms. Ba y less to meet him at a loca l cinema. When they met, the appe llant told the

wo me n to fo llo w h im in the ir c ar to h is f a the r’ s h ou se wh e re he wo uldmake so me te le ph on e c a lls in an ef fort to find some pills.

At the appe llant’s fathe r’s house, the re we re nume rous people a nd a “lotta he avy drinking g oing on” at what a

ppear ed to be a

“big party .” T h e ap pellant and his fa ther’s g irlfriend ma de

se ve ra l ph on e c a lls , try ing to l ocate pi lls . H a vin g no su c c e ss, the vic tim , th e app e lla nt, a ndMs. B a y le ss l e ft

the pa rt y a ndwe nt t o th e ho me of

the app e lla nt’ s f

ri e nd . T he app e lla nt as ke d th e vic tim to give him a ride to g o buy some marijuana . The victim did not want marijuana
, s o s h e t o ok the

app e lla nt b a c k to his fathe r’ s r e sid e nc e . A t so me po int , th e app e lla nt a sk e d th e vic tim to take him to h is m oth e r’ s h ou se . T he vi cti m agreed. Whe n th e y arrive d, theapp e lla nt a sk e d th e vic tim to come inside for

a minute. Ms. Ba y less rema ined in the ca r.

Acc ording to the victim, once they enter ed the a

partment, the a

ppellant had a brief a

rg ument with his mot her, the n ushere d the victim into a bedroom and le ft her a lone. When the appe llant
returne d to the bedroom, he “close d the door and got ex tremely close,” trying to kiss her

and asking her to ha ve sex with him . The victim testified that she r efuse d and re minded the appe llant tha t she had a boy friend. The victim c laimed that she tried to le ave, and the appellant threw her on the bed, put a knife to h er t h roat a nd told her “not [to] make a ny noises” bec ause she did not “wanna g et hurt.”

The victim explained that the appe llant then remove d her shorts, “used his tong ue” on he r

“ pr ivate are a ” the n f

or c e d h e r t o “ ha ve sex wi th h im. ” Th e vic tim te sti fi e d th a t sh e wa s “ sil e ntl y crying the whole ti me” and beg g ed him to leave. When the a ppellant was f

inished, the victim put back on he r shorts and g ot rea dy to leave. The appellant then forc ed the victim to perform ora l sex

on him . A ft e r c omp ly ing fo r a fe w s e c on ds , th e app e lla nt the n p e ne tr a te d th e vic tim ’s va g ina wi th his finge rs and f

orce d her to “ have s ex with him aga in.” The vic tim testi fied that the a ppellant ejac ulated on both occ asions and that the a ppellant had a

knife in his hand the e ntire time.

T h e appe llant’s version of the fac ts differe d signific antly from that off

ere d by the victim. The appellant maintained that the victim tele phoned him looking for pills. The a ppellant proposed tha t they meet at a local cine ma so that the victim could follow him to his f ather ’s house. The victim and-3-

Ms. B a y le s s me t th e ap p e ll a n t a n d f o ll o w e d h im to h is f

a th e r ’ s h o u s e

. O n c e a t th e h o use, the appellant made sever al phone c alls, try ing to locate so m e p i l l s fo r the victim. Accor ding to the appellant, the vic tim offere d him sex in exchang e for pills. The thre e then lef t the party to go to the h o m e o f t h e ap p ell ant’s uncle to try to find drug s. Having no succe ss, the three went to another location, ag ain attempting to find pills or marijuana.

Th e app e lla nt t e sti fi e d th a t du ri ng the tim e the thr e e (3 ) we re se arc hin g fo r d ru g s, the vic tim

wa s “ hu g g ing ” on the app e lla nt a ndre pe a te dly of fe re d to hav e se x wi th him if he c ou ld g e t he r s ome pills. After visiting seve ral locations try ing to f ind p i l l s, the three (3) r eturne d to the appellant’ s fathe r’s house to make more phone calls. The a ppellant claims that, at that time, the victim asked his father for pills and also off

ere d him sex in exchang e for drug s. I n response to the actions of the victim, the appellant testified that his nie ce, J ulie Maddin, g ot into an arg ument with the victim and pushed her

down, causing the victim to bleed from the ne ck and e lbow.

Af ter the a lte rc a tio n, the app e lla nt s ta te d th a t he a sk e d th e vic tim to t a ke him

ba c k to his
mothe r’ s a

pa rt me nt. Whe n th e y arrive d, the app e lla nt c la ime d that the vic tim c a me int o th e ho us e with him and ag ain offe red to slee p with him if he could g et her some pills. Acco rdi ng to the appellant, the victim be g an “rubbing ” on his le g and then “wor ked her way down” an d “s t ar ted

ru bb ing ” on his pe nis . T he app e lla nt c la ime d th a t the vic tim un bu c kle d h is p a nts , r

ub be d h is p e nis

a ndtoo k o ff

he r c lothe s. Th e app e lla nt c la ime d th a t th e vic tim wa s n ot o nly

a wi lli ng pa

rt ic ipa nt, but also the ag g ressor during the encounte r. The a ppellant admitted that he a nd the vi ctim had sex and that he ej ac u l at ed on the bed, then the victim asked him to roll over so that she could “g et on top.” At that point, the appellant state d that he and the victim had s ex for a second time a nd he ejac ulated ag ain on the bed. T he appe llant claimed that the victim wante d to have se x for a third time, but t h e ap p el l an t told her she could g ive him a “blow job.” A ccor ding to the a ppellant, the victim willi ng ly

complied.

The appellant denied that there wer e any knives in the room. He stated that when he and the victim left the apa

rtment, they

wer e holding hands.

At the conc lusion of the jury trial, th e jury

convicted the appellant of all four c ounts of ag g ravated ra

pe. As a result, t he trial court sentenced the appellant to four concurr ent sentenc es of twenty -five ( 25) y ear s, to be serve d at one-hundred perce nt. The a ppellant filed a

motion for new
t ri al
, an am en d ed m o t i o n fo r n ew t ri al
, an d a s ec o n d am en d ed m o t i o n fo r n ew t ri al

. Af t era h ea ri n g, the trial court denied the motions. The appe llant filed a timely notice of appea l w ith this Court. O n appea l, the appellant arg ues that the trial court err ed in instructing the jury that they could find the appellant g uiltyof ag g ravated ra pe if his ac tions were done “re cklessly ,” and tha t the trial court e rre d in apply ing c erta in enhanc ement factors in violation of Blakely v. Washington, 542 U.S. 296 (2004).T hi s r ul e by i t s t erm s a l l o w s p l ai n e r r or r evi ew onl y wh er e t her e i s a fai l ur e t o al l ege er r or i n t he new t r i al 1

m o t i o n or where t he error i s no t r a ise d be f o re t he ap p el l at e co urt

. A d d i t i o nal l y , t he rul e has been i nt erpret ed by t he

a p p e llate c o u rts to a llo w a p p e llate re v ie w un d e r so m e c irc u m sta n c e s in th e a b se n c e o f a c o n te m p o ra n e o u s o b je c tio n

.

-4- An a ly sis

J ury I nstructions

Th e app e lla nt f

ir st a rg ue s th a t th e trial cou rt erre d in c ha rg ing the jury

“ on the c ulp able
ment al state of ‘ rec kless,’ there by lessening the State’s burde n of proof .” Althoug h the appe llant acknow ledg es that trial counse l failed to objec t to the jury instructions at trial and failed to r aise the issue reg arding the jury

instructions in a motion for new trial, he arg ues that we should address the issue by utiliz ing the plain err or standar d. The State arg ues that “plain err or is la cking and the trial court’s e rror

is harmless.”

Ordinarily , the appe llant’s issue would be conside red w aived be cause he fa iled to make a contempora neous objec tion during tria l and fa iled to raise the issue in a motion for new tria l. See Te nn . R. Ap p. P. 3 6( a ); Te nn . R. Ap p. P. 3 (e ). Whe n a n iss ue is ra ise d fo r the fi rs t ti me on app e a l, it is t ypically

waived. State v. Alvara do, 961 S.W .2d 136, 153 (Tenn. Crim. App. 1996) . Howeve r, we may addre ss the issue in the even t t h er e wa s p l ain er ror on the pa

rt of the tria l court. State v. Smit h, 24 S.W .3d 274, 282 (Tenn. 2000) . I f this C o u rt is to review the claims of improper jury ins truc tio ns we mus t do so thr ou g h the pr oc e ss of “ pla in e rr or ” re vie w e mbo die d in Te nn e sse e Rul e of Cr imi na l Pr oc e du re 52 (b ) w hic h p ro vid e s:

An error which has affec ted t he subst antial rights of an acc used may be noticed at any time, even thoug h not raised in the motion for a new tri al o r as s i gned as e rror on appea l, i n t h e d i s cre tion of the appe llate court where nece ssary to do substantial justice. 1

I n order to review an issue under

the pl ain error doctrine, five fac tors must be pre sent: (1) the r ecor d

mus t c le arl y

e sta bli sh wh a t oc c ur

re d in the tr ia l c ou rt ; ( 2) a c le ar a ndun e qu ivo c a l rule of la w m us t have be en bre ache d; (3) a substantial r ight of the defendant must have be en adve rsely aff ecte d; (4) the a c c us e d d id n ot w a ive the iss ue fo r tac ti cal reas on s; a nd(5 ) c on sid e ratio n o f the e rr or is

nece ssary to do substantial just ice. See Smit h, 24 S.W .3d at 282-83; State v. Adkisson, 899 S.W .2d 626, 641 (Tenn. Crim. App. 1994); see also Tenn. R. Crim. P. 52(b). For a “substantial r ight” of the

a c c us e d to ha ve be e n a ff

e c te d, the e rr or mus t ha ve pr e jud ic e d the app e lla nt. I n oth e r w or ds , it mus t have a ffe cted the outc ome of the tria l court proc eeding s. United States v. Olano, 507 U.S. 725, 732- 37 (1993) ( analy zing the substantially simil ar F eder al Rule of Criminal Procedur e 52(b) ); Adkisson, 899 S.W .2d at 642. This is the same ty pe of inquiry

as the ha rmless err or ana ly sis under Tenne ssee Rul e of Ap pe lla te Pr oc e du re 36 (b ), bu t the app e lla nt be ars the bu rd e n o f p e rs ua sio n w ith re sp e c t to plain err or cla ims. Olano, 507 U.S. at 732-37.-5-

I n the ca se herein, we are not persuade d that the appe llant has succe ssfully car ried his burde n of per suasion in e stablishing a plain err or claim. L ooking first to f actor three , we a

re not c onvinced that a substantial rig ht of the appe llant was af fec ted such that the e rror

by the trial court prejudice d the appe llant by

aff ecting the outcome of

the trial. Ther e ar e no fa cts prese nted at trial unde r which the jury could have possiblyconclude d that the pene tration of the victim by t h e appellant wa s

rec k l es s

. T h er e were two sc enarios presente d at trial with reg ard to the e vents that led up to the appellant’ s indictment. The victim maintained that the a ppellant intentionally

penetr ated he r on four

se pa rate oc c a sio ns , f

or c ing or c oe rc ing he r at kn if

e -p oin t. T here wa s n o s ug g e sti on by the vic tim that the appe llant’s actions we re a ny thing other than intentional. The a

ppellant’s theory

of def ense, on the other ha nd, was that of consent. The appellant maintained that the vic tim offere d him sex ual favor s in ex chang e for

the ac quisiti on of pills and/or marijuana . Acc ording to the appellant, he attempted to sec ure the drug s for the victim and presented testim ony of several pe ople that sug g ested the victim was openly

aff ectionate toward him on the night that the ra pe occ urre d. He testified a nd admitted that the pene tration occ urre d, never portraying himself a s a re luctant parti ci p ant in the sexual int erlude betwee n himself and the victim. The two sc enarios presente d throug h the evidenc e at trial sug g est that the appellant could have had only an intentional or knowing mens rea . We fee l compel le d to n o te th a t a n o th e r p a n e l o f th is Co u r t r e v e r s e d a n d r e ma n d e d a n a g g r a v a te d r ape conviction in State v. Weltha Womack, No. E2003-02332-CCA-R3-CD, 2005 W L1 7 4 2 8 (Tenn. Cr im. Ap p. , a t K no xvill e, J an. 4, 20 05 ), wh e re the c ou rt de te rm ine d th a t th e tr ia l c ou rt e rr e d in instructing the jury

with the mental stat e o f re ck l es s with respec t to the element of se x ual penetr ation. I n Womack, while the def endant did not deny

that he touche d the victim’s g enital ar ea, he de nie d th a t th e tou c hin g wa s f or a ny se xua l pu rp os e . Be c a us e of the po ssi bil ity

that th e jury

c ou ld ha ve de te rm ine d, un de r the fa c ts pr e se nte d in Wo ma c k, that th e de fe nd a nt’ s a c tio ns we re re c kle ss, thi s Co urt w a s una

ble to c on c lud e that th e jury ins truc tio n e rr or

wa s h arm le ss b e y on d a

re a so na ble doubt. As a result, this Court reve rsed and rema nded for a new trial. Further, in Womack, this Court
was not re viewing the matter via plain err or ana ly sis. I n the ca se her ein, the appe llant was not prejudice d by

the jury instructions because there wer e no facts presented at tria l under whic h the jury could have conclud ed that the a ppellant’s ac ts of sexual penetration, conse nsual or not, wer e

re c kle ss. Th us , a

su bs ta nti a l r ig ht o f the a c c us e d wa s no t a ff e c te d a s r e qu ir e d f

or pla in e rr or

a na ly sis in S mith. Con se qu e ntl y , w e are un able to r e vie w the ma tte r u nd e r p la in e rr or a ndthi s is su e is waived.

Sentencing

Next, the appellant c ontends that the trial court improperly applied two enha nceme nt fac tors contra ry to the decision in Blak el y v

. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). The

app e lla nt d oe s not ar g ue that the pr oo f didno t su pp ort th e app lic a tio n o f the e nh a nc e me nt f a c tor s,

mere ly that Bla kely preve nts the application of enha nceme nt fac tors that are neither submitted to a jury n o r a d mi tt e d b y th e d e f e n d a n t a n d th a t th e tria l c o u r t p la c e d to o mu c h w e ig h t on the enhanc ement fa ctors it found. The State a rg ues that Blakely does not a pply , and, in the alternative, that the trial court properly applied the e nhance ment fac tors.-6-

Th e Te nn e sse e Sup re me Cou rt re c e ntl y de te rm ine d th a t B la

ke ly didno t a nn ou nc e a

ne w r ule of law a nd that “th e T ennesse e Criminal Sentencing Reform Ac t does not authorize a sente ncing proce dure w hich violated the S i x t h Amendment rig ht to jury trial.” State v. Gome z, 163 S .W.3d 632, 651 (Tenn. 2005) . I n Gomez, the court deter mined that despite the a bilityof trial judg es to set

sen tence s above the presumptive sente nce ba sed on the finding of enha nceme nt fac tors neither f ound by a jury no r a dmi tte d b y

a de fe nd a nt, Te nn e sse e ’s se nte nc ing str uc tur e do e s not vio la te the Sixth Amendment and doe s not conflict with the holdings of Blakely v. Washington, 542 U.S. ___, 124 S.Ct . 2531 (2004), United States v. B ooker, ___ U.S. ___, 125 S.C t. 738 (2005), or U nited States v. Fa nFa n, the case consolidated with B ooker, be cause “[t] he Reform Act [of Tennesse e] authorizes a discre tionary , non-manda tory s en t en cing proc edure and re quires trial judg es to consider the principles of se ntencing an d to e n g a g e in

a qualitative a naly sis of enhanc ement and mitig ating fac tors

. . . a ll o f w hic h s e rv e to g uid e tr ia l ju dges in ex e rc isi ng the ir dis c re tio n to se le c t a n a

pp ro pr ia te

sen te n c e w ith in th e r a n g e s e t b y th e L e g is latu r e

. ” G o me z, 1 6 3 S. W. 3 d a t 6 6 1

. A s a r e s u lt of the decision in Gomez, the appe llant’s issue is without m erit.

Conclusion

For the fore g oing r easons, the judg ment of the trial c ourt is affir med.

___________________________________ J ERRY L . SMI TH, JUDGE