# FILED

January 12, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00437

Appellee, * SHELBY COU NTY VS. * Hon. James C. Be asley, Jr., Judge MYRON GARMON, * (Aggravate d Sexual B attery)

Appellant. *

For Appellant : For Appellee : Tony N. Brayton John Knox Walkup Assistant Public Defender Attorney General and Repor ter 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 Timothy F. Behan (on appeal) Assistant Attorney Gener al 450 James Robertson Parkwa y Leslie Mozingo Nashville, TN 37243-0493 Assistant Public Defender 201 Poplar Avenue, Suite 2-01 David Henr y Memphis, TN 38103 Assistant District A ttorney General (at trial) 201 Poplar Avenue, Third Fl oor Memphis, TN 38103 Of Counsel: A.C. Wharton Shelby County Public Defender

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Myron Garmon, was convicted of one count of aggravated sexual

battery. The trial cour t imposed a twelve-y

ear sentence to be served consecutivel

y to sentences imposed in the State of Arkansas. In this appeal of right, the defendant claims that the evidence was insuf ficient to corroborate his confession; he also argues that the trial court should have sustained th e defendant's motion to dismiss for the state' s failure to try the cas e within one-hundred-ei ghty days from his request for t rial.

We affirm the judgment of the trial court.

In June of 1994, the defendan t, a resident of Jonesboro, Arkansas, took his two sons and the s ix-year-old female v ictim to Libertyland i n Memphis. During the visit,the defendant touched the vaginal area of the victim. On June 27, 1994, at the Methodist Hospital in Jonesboro, a medical ex amination revealed no signs of trauma to the vic tim.

The victim, who was weari ng a dress at the tim e, recalled ridin g a horse on the merry-go- round when she receiv ed a "bad touch" from the person entrusted to care for her. She u sed a diagram to point out that she had been touched in the vaginal ar ea. The victim could not r emember, however, who had touched her. Lieutenant B.J. Smith of the Jonesboro Police Department in Arkansas questioned the defendant on January 20, 1995, severa l months after the incident. The defendant identified the v ictim only as Brandy

and recalled that her mother had been killed in a car wreck. He acknowledged that Brandy lived in Arkansas but that the incident had occurred in Memphis. The defendant confessed to police that he attempted to fondle the victim but quit w hen she objected.3 According to Lieutenant Smith, the defendant explained that "my desires got the best of me."

At trial, the victi m's father, Darrell Parke r, acknowledged that th e victim's mother had been killed in a car accident between the time of the o ffense and the interrogation of the defendant by the police.
There was only one defense witness called to testify. The defend ant's son, James Garmon, an eighth g rader, recalled the tri p to Libertyland with his older brother Joe,the young v ictim, and t he defendant. J ames could not recall a ti meduring the entire day that the defendant was alone with the victim. On crossexamination, however, the witness did acknow ledge that there were times during the course of the day when he w as outside of the view of the victim.

I The defend ant claims that the state was una ble to offer enough evidence to prove that a crime had been committed. He argues that no witness linked the defendant with the v ictim, that the hospital rec ords did not substantiate any unlawful touching, and that the victim wa s unable to identify her ass ailant.

The corpus delicti

of a crime requires a showing that (1) a certain result has been produced, and ( 2) the result was cr

eated through a criminal ag ency. Ashby v. State , 139 S.W. 872 (Tenn. 1911); State v. Ervin , 731 S.W.2d 70 (Tenn. Crim. App. 1986). Whether the state has sufficient ly established the corpus delicti is primarily a jury

question. Williams v. State , 552 S.W.2d 772 (Tenn. Crim. App. 1977). All elements of the corpus delicti may be established by circumstantial evidence. Clancy v. State , 521 S.W.2d 780 (Tenn. 1975). Only slight evidence of4 the corpus delicti is necessary to cor roborate a confession and thus sus tain a conviction. Ricketts v. State , 241 S.W .2d 604 (Tenn . 1951). Corrobo rative findings made in the course of the invest igation in addition to the confession may be sufficient to support the convi ction. Ervin , 731 S.W.2d at 72.

In our view, the stat

e met its burden of proof as to the corpus delicti

. See State v. Wayne Dillard Carv er , No. 1152 (Ten n. Crim. App., at Knoxville, Aug. 1, 1988). This crime occurred in the summer of 1994 when the victim was six years old. Witnesses were able to establis h that the defendant had taken his tw o sons and the victim to a theme park in Memphis during that t ime. There was a merry-goround in the theme park. While the victi m could not identify her assai lant, the defendant acknowledged havi ng fondled a young gir l from Jonesboro, Tennessee, whose first name matched that of the v ictim. The state was able to corroborate the identity of the victim and the defendant by establishing that the victim's mother had been killed in a car acci dent during the fall of 1994, a fact that the defendant had acknowledged in his police interview. "A confession may sustain a conviction where there is other evidence sufficient to show the commissi on of the crime by someone." Taylor v. State , 479 S.W.2d 659, 661-62 (Tenn. Crim. App. 1972). H ere, the victim's testimony that she received a "bad touch ," coupled with all of the other evidence, is sufficient cor roboration of the defendant's confession. Id . The corroborative evi dence necessary to support the corpus delicti need not be sufficient in and of itself but only suppor t "the essential facts ... to j ustify a jury inference of their truth." Opper v. United States , 348 U.S. 84, 93 (1954). The stat e has satisfied that standard.

II

The defendant next complains that on Oct ober 2, 1995, he filed a1 The re cord co ntains co nflicting inform ation abo ut when the state re ceived th e reque st.
2 Notice of int

ent to s eek enhanc ed punishment --Sta tement of

enhancement and mitigating factors.-- (a) If t he distri ct attorney generalbelieve s that a defen dant should be sentenced as a multipl e, persist ent or career

offender, the distri ct attorney generalshall f ile a st atement thereof with the co urt and d efense couns el not less th an ten (1 0) days be fore trial or ac ceptan ce of a g uilty plea; prov ided, t hat noti ce may be waived by the defendant

in writing wit h the consent of the dist rict attorney ge neral and the cour t accep ting the plea . Such s tatem ent, which shall not be mad e know n to the jury determining the guilt or innocence of

the defendant

on the pri mary offense, must set forth t he nature of t he prior f

elony conv icti ons, the dates of the convi ctions and t he identity of t he courts of t he convicti ons. The origi nal or cert ified copy of the court recordof any pri or felony convicti on, bearin g the same name as that by which t he defendant i s charged in t he primary off ense, is pr ima facie evi dence that th e def end ant n am ed th erein is the sam e as t he de fend ant b efor e the cour t, and is prim a fac ie evidenc e of the fa cts set ou t therein.

3 (a) General Rule. For the purpose of attacking the credibi lit y of a wi tness, evi dence that t he witness has been con victed of a crime ma y be admitted if the following procedures and conditions are satisfi ed:
*** (3) If the wit ness to be impeached is the accused in a criminal pr osecution, the State must give the accused reasonable wr itten notice of the impeaching convi ction befor e trial , and the cour

t upon requ est m ust d eterm ine th at the conv iction 's pro bative value on cr edibilit y outw eighs its un fair prejudici al effect

on the substant ive issues.The court may rul e on the admissibi lit y of such proof

prior to the t rial b ut in any

event shall

rule pri or to the t

estimony of t he accused. If the court makes a fi nal dete rm inatio n tha t suc h pro of is a dm issib le for im pea chm ent p urpo ses , the a ccu sed need not a ctua lly testif y at t he trial

to later chall enge the propri ety of t he determinati on. 5 request for trial under Tenn.Code Ann. § 40-31-101, the Inters tate Compact on Detainers. The request w as received by the auth orities in Shelby Co unty on either October 7 or 17. 1 A trial was set on M arch 11, 1996, but was conti nued because the state desired to amend its noti ce of intent to seek an enhanced punishment and provide notice of prior c onvictions to be utili zed for impeachment purposes. See Tenn. Code Ann. § 40-35-202(a) 2 and Rule 609(a)(3), 3 Tenn. R. Evid. The trial was rescheduled for April 15, 1996, some 196 days after the defendant sig ned a document requesting a tri al in accordance with the terms of the compact. The defendant argues that the delay beyond one hundred eighty days was neither necessary nor reasonabl e and that the trial court er red by refusing to enter an order of dismissal.

The state insists that there i s nothing in the record other than the assertions of defense counsel to indi cate that the defendant made a request for trial on October 2, 1995. It claims that the failure on the part of the defendant to include6 adequate information on this iss ue served as a waiv er for appellate purposes. See Rule 24(b), Tenn. R. App. P.; State v. Draper , 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). The assistant distr ict attorney general , while acknowledg ing that the request for a trial w

as dated October 2, asserted tha t the request was not r

eceived until October 17, 1995.

The trial court pointed out that regardless of the date util ized to measure the one hundred eighty days, all Shelby C

ounty courts were closed on April 5, 1996, a state holiday, and the entire week beg inning Monday, April 8 for the spring session of the Tennessee Judicial Conference. The tri al began on the following Monday. While implying that the delay w as necessary, the tria l judge ruled that the one hundred eighty d ays was mainly a guideline and that the state had acted in good faith in attempting to set a trial as early

as possible.
The primary purpose of the Inter state Compact is to provi de an expedient, orderly disposition of the out-of-state charge upon which a deta iner is based. Dillon v. State , 844 S.W.2d 139 (Tenn. 1992). The compact seeks to ensure that detainers are filed only when substantial

grounds exist for bri nging the prisoner to trial in an other jurisdiction. State v. Hill , 875 S.W.2d 278 (Tenn . Crim. App. 1993). The compact procedure r esults in only a temporar y transfer to the receiving state. State ex rel. Young v. Rose , 670 S.W.2d 238 (Tenn. Crim. App. 1984).
The provisions of the Interst ate Compact on Detainers are t o be construed liberally in favor of prisoners it w as intended to benefit. State v. Gipson , 670 S.W.2d 637 (Tenn. Crim. App. 1984). The provi sions of the compact are, however, statutory

rights, not fundamental, consti tutional, or jurisdictional. Grizzell7 v. Tennessee , 601 F. Supp. 230 (M.D. Tenn. 1984) . Failure to comply with the onehundred-eighty-day

time limit does not automatical ly require a dismi ssal of the indictment if a continuance bey ond that period is necessary or reasonable. Gipson , 670 S.W.2d at 639. This court has held that a crowded docket was not a necessary or reasonable ground for conti nuance and set aside the indictment

. Id. Negligence on the part of the state does not const itute good cause for delay. See State v. Green , 680 S.W.2d 474 (Tenn. Crim. App. 1984), overruled on other gr ounds , State v. Moore , 774 S.W.2d 590 (Tenn. 1989). A continuance grante d ex parte has no tolling effect. Dillon , 844 S.W.2d at 142.

The compact between the states provides in part as follows: Whenever a person has entered upon a term of imprisonment i n a penal or corr ectiona l institution o

f a party state, and whenev er during the continuance of the term of imprisonment there is pendi ng in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the person shal l be brought to trial w ithin one hundred eighty days after having caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer' s jurisdiction , written notice of the place of the person's i mprisonment and request for a final disposit ion to be made of the indictment, information or complai nt; provided, that for good cause shown in open c ourt, the prisoner or the prisoner's counsel being present, the court having jurisdiction of the matter may grant any necessary

or reasonable continuance. Tenn. Code Ann. § 40-31-101, art. III (a) (emphasis add ed).

By our calculations, the one hundred eighty day s would have expir

ed by March 30, 1996, if the time is calculated from the def endant's claimed date of his request for trial. The plai n terms of the compact, however, require a trial w ithin "one hundred eighty days after having caused to be del ivered to the prosecuting officer and the appropriate court of the pr osecuting officer's juris diction written notic

e of the8 person's imprisonment and req uest for a final disposition.... " Our supreme court has held that the one-hundred-eig hty day period does not begin to run until the stat e and the court have receiv

ed the petition. State v. Moore , 774 S.W.2d 590, 593 (Tenn. 1989).
The record suggests the s tate received the petitio n on either October 7, 1995, or October 17, 1995. Regardless of which day the state received the petitio n, the de

fendant i s not ent itled t o relie f.
If the pe tition was received o n Octobe r 17, 1995 , the tria l should h ave begun on April 14, 1996, in or der to comply with the one hundred eighty-day limitation. Because, how ever, April 14 was

a Sunday, and the trial w as commenced on Monday, April 15, the r ule was not violated.In United States v. Johnson , 953 F.2d 1167 (9th Cir. 1992), the state argued that because the one-hundred-eightieth day fell on a Sunday, the Federal Rules of Criminal Procedure allowed for timely commencement of the trial on Monday.The Ninth Circuit agr eed: "States party to the Interstate Detainers Ac t have used local time computi ng provisions analogous to Fed. R. Cri m. P. 45(a ) to extend the 180 d ay limit whe n the 180 th day is a S aturday, Sunday, or legal holi day." Id. at 1172 (footnote omitted). Accor dingly, we look to Tenn. R. Crim. P. 45(a) for g uidance:

Time.--(a)

Computation. --In computi ng any per iod of time the day of the act or event from which the designated period of time begins to run s hall not be included. The last day of the period so comput ed shall be included unless it is a Saturday, Sunday, or a legal holiday, ... in which event the perio

d runs until the end of the next day which is not a Saturday , a Sunday, or a legal h oliday ....

Even if the state had receiv ed the petition ten days earl ier, the defendant could not prevail. A failure to object to the date for a t rial set beyond the4 In Suarez , the court s tated the "1 80-day 'sta tute of lim itations' is trigger ed whe n the inm ate delivers his request ... to his captors." 681 S.W.2d at 586. That portion of Suarez was over ruled in Moore , where the cour t ruled that the t ime period di d not commence until "the date on which Tennesse e received notice ...." 774 S.W.2d at 593. The portion of Suarez discussing waiver, how ever , is still th e law toda y. 9 one-hundred-eighty-day period precluded an application for discharge under the compact. State v. Suarez , 681 S.W.2d 584 (Tenn. Crim. App. 1984), overruled on other grounds , State v. Moore , 774 S.W.2d 590 (Te nn. 1989). 4 In Suarez , the defendant raised the issue for the first time on direct appeal of his armed robbery convicti ons. The cour

t rejected h is claim: [W]e hold that the defendant's failure to object to the t rial date at the time it was set or during the remainder of the 180-day period resulted i n waiver of his ri ghts under Article III of the Interstate Compact on Detainers. Suarez , 681 S.W.2d at 586. Here, defense counsel from all appear ances agreed to reschedule the trial and di d not mention the violation of the Interstate Compact on Detainers until after the ti me for compliance had passed. That w ould constitute a waiver. Id. Federal law gov erns the interpretation of the Interstate Compact on Detainers Act. Cuyler v . Adams , 449 U.S. 433 (1981). The federal courts have held that rights under the compact can be waived. Kowalak v. United St ates , 645 F.2d 534 (6th Cir. 1981). See also Brown v. Wolfe , 706 F.2d 902, 903-04 (9th Cir. 1983).

Moreover, it woul d appear that the trial had been s et for March 11, 1996, well within the one-hundred eighty-da y period and was conti nued for good and necessary reasons, much to the benefit of the defendant, when the stat e filed its March 6, 1996, notice of i ntent to seek enhanced punishment and uti lize prior convictions for impeachment pur poses. That there was no cr iminal court in Shelby County from April 5 through April 14, 1996, indicates a good faith ef fort on all involved to meet the pri mary purpose of the compact; that i s, to provide an expedient, orderly di sposition of state charges outside of Arkansas.10 In pretrial argument, defense c ounsel acknowledged that the continuance, due to an amended notice to include a 1973 Kansas convi ction, ultimately benefitted the defendant. I t allowed her time to deter mine that the conviction had been over turned on appeal and thus limit the sentence to a Range I. Defense counsel made this further comment :

I am obligated, of course, to pr esent all the law that I feel is against my position, and that because of ... necessary delays--the fact that there were no courts open last week--the Friday before that was a holiday--and that all the delays--all the c

ontinuances, with the ex ception of from March 11 until today was based on the state; that it appears from my reading of the l aw that we are still within our one hund red eight y days

. (Emphasis added). The defense then concede d that it had sought a delay from January 9 through February 1, 1996. The speedy trial provisions of the Act are tolled by delay "occas ioned by the defendant." Dillon , 844 S.W.2d at 142 (citations omitted). Typically, delays at the hands of the defendan t would fall into the category of reasonable and necessary. See State v. Tyson , 603 S.W.2d 748 (Tenn . Crim. App. 1980); Dillon , 844 S.W.2d at 142.

We hold that the rec

ord is inade

quate for us to determine that the time began to run before October 17, 1995; if it did, the trial was timely commenced. It is the obligation of the appellant t o provide an adequate reco rd for the disposition of an issue on appeal. Tenn. R. App. P. 24(b). In this instance, we cannot accu rately assess the number of days without further documentation from the tr ial court as to when the request was

received. Had the notic e been received on October 7 , 1995, we would have nev

ertheless concluded that the c ontinuance of the trial from the March 11, 1996, setting w as reasonable and necessary and much to the benefit of the defendant. Certainly, the purposes of the compact were not abridged by the developments in this case.

Accordingly, the j udgment is affirmed.11 ________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge