1

FILED

October 14, 1999

Cecil Cro wson , Jr.

Appellate Co urt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1999 SESSION

STATE OF TENNESSEE, ) C.C.A. 03C01-9807-CC-00249

) RHE A COUNTY CIR CUIT

)

Appellee, ) Hon. Buddy D. Perry, Judge 

)

 )

)

vs. ) (ATTEMPT TO COMMIT 

 ) AGGRAVATED RAPE)

) NO. 14229

)

CARLOS D. MATHIS, )

)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

B. JEFFERY HARMON JOHN KNOX WALKUP

Assistant Public Defender Attorney General & Reporter

P.O. Box 220

Jasper, TN 37347

ERIK W . DAAB

Assistant Attorney General

425 Fifth Avenue North

2nd Floor, Cordell Hull Bldg.

Nashville, TN 37243

JAMES MICHAEL TAYLOR

District Attorney General

WILL DUNN

Assistant D istrict Attorney 

365 Third Avenue, Suite 300

Dayton, TN 37321 

OPINION FILED:_________________

REVERSED AND REMANDED

CORNELIA A. CLARK

Special Judge

OPINION
2

 Appellan t appeals a s of right from his conviction for attem pt to com mit

aggravated rape, a Class B felony. He was sentenced to serve twelve years.

Appellant raises th e followin g issue s for review: (1) the trial c ourt comm itted pla in

error in failing to give a jury instruction as to alibi; (2) the co urt comm itted rev ersible

error in failing to give a jury ins truction as to id entity; (3) th e cou rt com mitted plain

error in telling the jury “there are six (6) potential crimes that could have been

committed”; and (4) the court erred in sentencing the appellant. Upon review of the

record, we conc lude th at we mus t revers e and rem and for a n ew trial.

On May 1 7, 1997, Rose Runyon, the victim in this case, opened her flower

shop located in Richland Plaza in Dayton, Tennessee, about 8:30 a.m. At

approximately 9:00 a.m., a black ma le unkn own to Mrs. Ru nyon entered her flower

and gift shop. He indicated he was looking for a late anniversary present for his wife,

having forgotten their anniversary a few days before. He looked around the store for

about twenty to thirty minutes, then selected several stuffed animals for purchase. As

Mrs. Runyon proceeded to the rear of th e store to wrap and tape the presents

selected, the man followed her to get cards to sign. Suddenly he grabbed her from

behind, placed a knife to her throat, and stated, “Be quiet or I’ll kill you.” As she

struggled, he cut her on the throat, mouth, chin, and neck. He attempted to place duct

tape over her mou th but, because h er face was co vered with blood, the tape did not

stick. Mrs. Runyon pleaded with the attacker and told him where her cash was

located. The attacker then threw her to the floor and dema nde d that she undress.

Mrs. Run yon sta ted, “Yo u mig ht as w ell kill me now. I’m no t pulling my clothes o ff.”

The attacker pulled off her clothing and began to kiss her. He unzipped his pan ts,

grabbed her breast, and attem pted to penetrate her. At that mom ent, however,

Kenn eth Robbins, a customer, entered the store. The attacker fled through the back

door, leaving behind the gifts he had chosen and a necktie with strips of duct tape on

it. He took his knife with him. Mrs. Runyon was obviously upset and asked Robbins

to stay until the police came.
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Mrs. Runyon testified that she carefully looked at her attacker so that she

would be able to identify him in the future. The rooms were well lit. She described the

attacker to police as a blac k ma le, app roximately five feet seven inche s tall,

approximately twenty-five years old, weighing between one hundred twenty and one

hundred forty pounds, clean-shaven, and wearing tortoise-shell framed prescription

glass es. 

Prior to Mrs. Runyon’s ultimate identification of the appellant, Dayton Police

Officer Chris Sneed showed her photographs of approximately ten to twelve black

male susp ects, b ut she could not ide ntify any of them as her attacke r. Appellant’s

pho togra ph was not inc lude d in th e array.

Shortly after th e attack Mrs. Runyon had occas ion to d escrib e her attacker to

other Richland Plaza store owners. Margaret Philpott, manager of the neighboring

Mou ntain Air Natural Food Shop, responded that a man matching the description of

the attack er had com e into h er store on the two days prec eding the attack. She

testified at trial that on May 15, 1997, the same man remained in her store for

approximately forty-five minutes but did not make a purchase. On May 16, he stayed

in the store for approximately one hour, then purchased children’s vitamins with a

chec k. During her trial tes timon y, she id entified the appellant a s the c heck writer. 

Another Richland Plaza store owner told Mrs. Runyon that a person meeting

the attacker’s description frequented his store. This owner believed that the individual

worked at a local Arby’s Restaurant. About two or three weeks after her attack, Mrs.

Runyon and h er dau ghter vis ited Arby’s and, upon o bserving the appellan t there,

immediate ly recognized him as her attacker. She called the police and the appellant

was arres ted. 

After the arrest, Officer Ch ris Sneed testified that he conducted a search of the

appellant’s residence and recovered tortoise-shell prescription glasses and duct tape.

Mrs. Runyon later identified the glasses as those worn by he r attacker. The appellant,

clean-shaven at the time of arrest, told Officer Sneed that he was five feet six and

one-half inches tall, that he weighed one hundred forty pounds, and was twenty-one
1

 The case had first been tried s ever al m onth s earlier an d app aren tly resu lted in a m istrial.

4

years old. These details fit the general description given by Mrs. Runyon. Sneed also

obtained the appellant’s marriage license showing that his wedding anniversary was

May 12, five days b efore the inc ident. N o knife, shirt, o r pants ma tching the

description given by the victim were ever found.

At trial Ros e Run yon iden tified the a ppellan t as her a ttacker.

The appellant testified in his own behalf and denied committing the offense

charged. He stated that at th e time of the incide nt he was at his father-in-law’s

brother’s house with his wife, attempting to borrow money from his father-in-law. He

testified that he then proceeded to a forme r emp loyer’s lo cation in Chattanooga to

obtain his pa ychec k. He testified that he had never been in the victim’s store, that he

had bought a present for his wife prior to his anniversary, that he had always weighed

more than 140 pounds, and that he never wore glasses.

The appe llant’s alibi wa s corrobora ted by his father-in-law, Don Creasman.

Creasman testified that he particularly remembered the day in question because he

had worked the third shift, left work early in the morning, and cashed a check before

driving to his brother’s house. He intended to lend the appellant money. Creasman

further testified that his daughter, her two children, and the appellant all were in the

car when they arrived at his brother’s house. His daughter was driving because the

appellant could not drive a s tick-sh ift. Crea sma n testified tha t the ap pellant was acting

norm ally and showed no unusual mark s or blood. The appellant and his family left for

Chattanooga between 9:10 and 9:15 a.m. Creasman also testified that at the time of

the incident the appellant weighed between one hundred seventy and one hundred

seve nty-five p ounds, an d that he never w ore glasse s. 

On cross-examination, Don Creasman admitted certain inconsistencies

between his testimony in the first trial1

 and the instant trial. For example, at the time of

the first trial he said he had deposited his own paycheck on the day of the attack.

However, a bank videotape showed that he cashed his check the day before this 

incide nt. At the second trial he said it w as his wife’s check he cashed in order to get

money for his son-in-law. C reasman also acknowledged that he never raised the alibi
2

 In the court reporter’s transcript, Mrs. Mathis’s first name is spelled “Kelli”. However, in her

statement, signed in her own ha nd, Mrs. Mathis spells her nam e “Kelly”.

5

defense to the police d uring their initia l inves tigation . 

Appellant’s uncle -in-law, Claude Creasman , also testified a bout the ev ent. His

story was consistent with those of his brother and the appellan t. However, h e cou ld

not remember details about the exact day when the meeting occurred.

The defense also called Special Agent Forensic Scientist Robert McFadden of

the Tennessee Bureau of Investigation. Age nt McFadden testified that he had

developed three latent prints o n the duc t tape found on the tie which was left at the

scene of the offense. The fingerprints did not match those of either the victim or the

appellant.

Kelly 2 Mathis, app ellant’s wife, was called by the state as a rebuttal witness.

She identified a statement she gave to police on June 5, 1996, indicating that she and

her husband were home at the time of the atta ck and did no t leave the house all day.

The statement was given before Mrs. Mathis had an opportunity to spe ak with

appellant after h is arrest. Her statemen t contrasted with the statemen t originally given

by appellant that he was in Memphis visiting his mother at the time of the attack.

Mrs. Mathis explained that the original statem ent was incorrect because she

was scare d and upset at the time she gave it. At trial she testified that on the evening

of May 16, she asked her father if she could borrow money so that she and her

husband could go to Chattanooga the next morning to pick up his final paycheck. She

concurred with the testimony of her father that she, her husband, and her two children

arrived at Cla ude Creasm an’s hom e in D ayton, Tennessee, between 9:00 a.m. and

9:30 a.m. H er fath er loaned them twenty dollars and they left to go to Chattanooga.

She stated that neither she nor her husband had been at Richland Plaza that morning.

She furthe r testified th at he r hus ban d had not forgotten their a nniversa ry and had

bought her an angel ring a s a gift.
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JURY INSTRUCTIONS

Appellant raises two issues concerning error in the jury instructions: (1) the

failure to instru ct the ju ry as to th e defense of alibi, and (2) the failure to instruct the

jury as to identification.

A. ALIBI

Trial courts have an affirmative duty to instruct the jury on every issue raised

by the proof, including the accused’s theory of defense, and specifically including the

defense of alibi. Poe v. State , 212 Tenn. 413, 370 S.W . 2d 488, 491 (Tenn . 1963).

See also State v. McPherson, 882 S.W. 2d 365, 374 (Tenn. Crim. App. 1994)(citations

omitted ). When a defendant pursues an alibi defense at trial, the trial court must

instruct the jury on the defense when it is “fairly rais ed” by the ev idenc e. Manning v.

State, 500 S.W. 2d 913, 916 (Tenn. 1973); Poe, 370 S.W . 2d at 491. See also State

v. Hard in, 691 S.W. 2d 578, 581 (Tenn. Crim. App. 1985 ). The duty exists irrespective

of a re quest for the instru ction b y the de fendant. Poe, 370 S.W . 2d at 491. 

Our Supreme Court has provided three scenarios reflecting when an alibi

defense has b een “fairly raise d”, thereby m aking the ins truction man datory. Manning,

500 S.W. 2d at 916. Those scenarios are:

(1) where the defendant’s alibi has been corroborated by other

credible witnesses;

(2) where the victim has been unable to identify the defendant; or

(3) where the proof against the defendant is wh olly circumsta ntial.

Id. Only when the evide nce fairly raises the defense b y meeting one o f the above

circumstances does the trial cou rt have an uneq uivocal duty to in struc t the ju ry.

Where the evidence does not meet these circumstances, the trial court is not required

to give such a n instru ction. Almo nrode v. Sta te, 567 S.W. 2d 184, 186 (Tenn. Crim.

App. 1978). 
7

The appellant’s wife, her father and her uncle all testified that appellant was

with them at or sufficiently near the time of the offense to make his commission of it

impossible. Although appellant’s wife admitted that her initial statement to police was

inconsistent with her trial testimony, she explained that she was nervous and upset

when she made the initial statement. There existed a direct conflict in the factual

testimony of the defense witnesses and the victim. Thus the appellant fairly raised the

defense of alibi and it w as for the jur y to evaluate the credibility of witnesses and

decide the factual issue. Because the evidence satisfies th e first Manning prong, we

find that an instruction on the defens e of alibi was warranted, and that failure to give it

cons tituted error.

Finding that the trial court erred in its jury charge by omitting the alibi

instruction, we can not say that it is harm less error. W hen the d efense o f alibi is fairly

raised by the proof at trial, the failure so to instru ct the ju ry is reversible e rror. Poe,

370 S.W . 2d at 490-491; See also Manning, 500 S.W. 2d at 916. When a n alibi is

supported by the p roof, the ins truction is fundame ntal to th e defense and ess ential to

a fair trial. Poe, 370 S.W. 2d at 491. It follows th at the appellant’s conviction must be

revers ed and a new trial orde red. 

B. IDENTIFICATION

The appellant a lso co ntends tha t the trial c ourt erred in failing to instru ct the

jury as to identification. In State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995), the

Tennessee Supreme Court held that whenever identification is a material issue in a

case, and it is requested b y appe llant’s counsel, a s pecific new instruc tion on identity

adopted by the co urt must be given. Failure to give the instruction under those

circumstances cons titutes p lain error. Id. at 612 ; State v. Cribbs, 967 S.W.2d 773,

780 (Ten n. 1998). 

In this case, however, appellant’s counsel did not request that an instruction be

given concerning identity. Neither was the issue raised in the motion for new trial.

Therefore, we m ust de termin e whether the trial court’s failure to give the Dyle

instruction is harmless or prejudicial error. Tenn. R. Crim. P. 52(a) (“No judgment of

conv iction shall b e reve rsed on appeal except for errors which affirmatively appear to

have affected the re sult of the trial on the merits .”); State v. Cribbs, 967 S.W.2d 773,
8

780 (Ten n. 1998). 

The victim in this ca se ga ve a d etailed descrip tion of her attacker almost

immediate ly after th e police arrived. She testified that she h ad loo ked c arefu lly at him

so that she would be able to identify him in the future. Her description was consistent

with the appellant’s appearance at the time of his arrest. The victim ultimately made a

positive identification of the appellant when she visited his place of employment, and

again at trial. Another nearby business owner identified the appellant as a person who

had loitered in her s tore fo r som e time on the two days b efore the crime. T he vic tim

also ultimately identified glasses she c laimed were w orn by he r attacke r and that were

found in his reside nce. 

Notwithstanding that identification testim ony, much of the rest of the proof was

circum stantia l. Because (1) appellant introduced evidence of alibi, (2) no clothes or

knife matching those described by the victim were ever found, and (3) no fingerprints

matching the appellant’s were identified, we would be inclined to find that the error in

failing to give the Dyle instruction, standing alone, did affect the verdict in this case.

Having already determined that failure to instruct the jury as to the defense of alibi

constitutes reversible error, we address this issue separately for the benefit of the trial

court on reman d. Ta ken to gether, it is clear that failure to give the two instructions

may h ave a ffecte d the verdic t.

SENTENCING

For the benefit of the trial court on remand we will also address the alleged

errors in sentencing. The appellant asserts that the trial court erred in imposing the

maximu m twelve-year sentenc e for this C lass B felony.

W hen an accused challenges the length, range, or manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with the

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. §40-35-401(d). If our review reflects that the trial court follow ed the statutory

sentencing procedure, imp osed a lawful sen tence after giving due consideration and

proper weight to the factors and principles set out under the se ntencing law, and the

trial court’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. State v.
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Fletcher, 805 S.W.2d 785, 789 (Tenn . Crim. App. 1991).

However, “the presumption of correctness which accomp anies the trial c ourt’s

action is conditioned u pon the affirmative showing in the rec ord that the trial cou rt

considered sente ncing princip les an d all rele vant fa cts and circumsta nces ”. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

the trial cou rt mus t place on the record its reasons for arriving at

the final sentencing decision, identify the mitigating and enhancement

factors found, state the specific facts supporting each enhancement factor

found, and articulate how the mitigating and enhancement factors have

been evaluated and balanced in determining the sentence. T.C.A. §§40-

35-21 0(f) (199 0).

State v. Jones, 883 S.W.2d 597, 599 (Tenn . 1994).

Under Tenn. Code Ann. §40-35-210 a court at sentencing is required to

consider all the follow ing: (a) the eviden ce, if any, received at the trial and the

sentencing hearing; (b) the presentence report; (c) the principles of sentencing and

arguments of sentencing alternatives; (d) the nature and characteristics of the criminal

conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors; and (f) any statem ent the defendant wishes to

make in his own behalf about sentencing. The court can use evidence or information

offered by either party at any phase of the proceeding in determining what

enhancement and mitigating factors apply. The court can also receive information as

to these factors from the presentence report, even though the information was not

asserted by the parties. Tenn. Code Ann. §40-35-207(a)(5 ). Neither party is required

to file a statem ent of prop osed enhance men t or mitig ating factor s unle ss req uired to

do so by the court. Tenn. Code Ann. §40-35-202(b). However, a court is always

required to consider the existence of these factors in making its sentencing

determinations. Finally, in conduc ting our de novo review , this co urt is au thorized to

consider any enhancement or mitigating factors supported by the record, even if not

relied upon by the trial cou rt. State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). The

burden is on the defendant to show that the sentence was im proper. Sentencing

Com mission Com men ts, Ten n. Cod e Ann . §40-35-401 (d).

In impos ing its sentence the co urt cons idered three enhancing factors under
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T.C.A. §40-35-114: (1) the appellant has a previous history of criminal convictions;

(11) the felon y resulte d in death or bodily injury and the appellant has previously been

convicted of a felony involving bodily injury; and (20) the appellant w as ad judica ted to

have committed delinquent acts as a juvenile that would constitute a felonies if

committed by an adult. The trial judge also apparently considered as a mitigating

factor the fa ct that a ppellant ha d a good work history a nd a willingn ess to work . 

Appellant, as a juvenile, was adjudicated delinquent for committing the

offenses of first degree murder of one woman, and aggravated assault and attempted

aggravated rape of a second woman. He was co mm itted to th e De partm ent of Youth

Development until his twenty-first birthday. While at Taft Youth Center, but after he

turned eighteen, appellant was convicted of criminal conspiracy to commit aggravated

riot. He was sentenced to serve a consecutive sentence for this adult offense.

Appellant’s argume nt as to the erroneous application of the three

enhancement factors is un clear. H e does no t spec ifically contest the application of

factors (1) or (20). Indeed he cannot. He has one prior adult conviction and three

very seriou s juvenile ad judica tions, a ll of which wo uld have mandated lengthy prison

sente nces if com mitted by an a dult. 

The state takes the position that the third enhancement factor relied upon by

the trial court is factor (11), which permits enhancement where bodily injury is inflicted

and the defendant has previous ly bee n convicted o f a felony in volvin g bodily inju ry.

The trial cou rt’s state men t on this issue is con fusing: 

THE COURT: . . . The enhancin g fac tors are, at lea st, three . I am going

to refer to them by numbers.

. . . 

Number 2. The felony resu lted in d eath or bodily injury, and in this case

bodily injury, be it minor bodily injury but significant mental injury

obvio usly, . . . 

The appellant asserts only that psychological or emotional injuries are not

considered enhance men t factors. W e agree that such emotional injuries, by

themselves, do not establish any of the enhancement factors contained in T.C.A.

§40-35-114 which would allow for enhancement of the sentence above the
11

presump tive minimu m. State v. Reid , 882 S.W.2d 423, 430 (Tenn . Crim. App. 1994).

To the extent that the court intended to apply factor (11 ), it did so in e rror.

Appellant’s only prior adult con viction is for conspiracy to co mmit aggravated riot, a

Class A misdem eanor. W hile he was adjud icated delinq uent as a ju venile for the

very serious offenses of first degree murder, attem pt to commit aggravated rape, and

aggravated assault, these juvenile adjudications cannot be utilized to make factor

(11) applicable. W hen imposing senten ce fo r offe nses comm itted o n or a fter July 1,

1995, a court may co nsider p rior juvenile offens es only under T .C.A. §4 0-35-1 14(20 ).

State v. William Jason McMahan, No. 03C01-9707-CR-00262, Knox County (Tenn.

Crim. App., at Knoxville, M arch 31, 19 99); State v. Brent Brown, CCA No. 02C01-

9710-CC-00419, Hardeman County (Tenn. Crim. App., at Jackso n, October 26,

1998 ).

For a Range I, Standard Offender, the range of punishment upon conviction of

a Clas s B fe lony is e ight (8) to twelve (12 ) years. The minimum sentence within the

range is the presumptive sentence. If there are enhancing but no mitig ating factor s, a

court may set the sentence above the minimum in that range but still within the range.

The weigh t to be g iven e ach factor is left to th e disc retion of the trial judge. State v.

Shelton, 845 S.W.2d 116, 123 (Tenn . Crim. App. 1992).

The trial court appeared to give the most weight to the serious nature of the

offenses committed while appellant was a juvenile, pointing out that, if he had been

convicted of first degree murder as an adult, the offense before him would never

have occu rred, s ince th e appellan t would hav e rem ained in jail.

Since the court misapplied one enhancement factor, our review is de novo

upon the record. However, after conducting that review, we conclude that the trial

court properly sentenced the appellant. Appellant’s record of violent behavior against

women from a young age is entitled to great weight. Having found the existence of

two enhancing factors, and only one mitigating factor, we find the record supports the

trial court’s judgment that a twelve-year sentence is appropriate. This issue has no

merit.

For the reasons set forth above, we reverse the judgment of the trial court and

rema nd this cau se for a new trial.
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_________________________________

CORNELIA A. CLARK

SPECIAL JUDGE

_______________________________

GARY R. WADE

PRESIDING JUDGE

_______________________________

NORMA McGEE O GLE

JUDGE