IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 26, 2013

STATE OF TENNESSEE v. RALPH BYRD COOPER, JR.

Direct Appeal from the Criminal Court for Anderson County

No. A3CR0059 Donald R. Elledge, Judge

No. E2012-01023-CCA-R3-CD - Filed July 22, 2013

Upon remand by our supreme court, see State v. Cooper, 321 S.W.3d 501 (Tenn. 2010),

Defendant Ralph Byrd Cooper,Jr., was resentenced by the trial court to serve sixty (60) years

as a career offender for his conviction of aggravated rape, a Class A felony. Defendant

appeals his sentence, asserting as his sole issue that the trial court erred by determining he

was a “career offender.” After a thorough review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL,J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROBERT W. WEDEMEYER, JJ., joined.

Mart S. Cizek, Clinton, Tennessee, for the appellant, Ralph Byrd Cooper, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; David S. Clark, District Attorney General; and Sandra Donaghy, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

A recitation of the facts which led to Defendant’s conviction is not necessary in this

opinion. They can be reviewed in the supreme court’s opinion and in this court’s opinion in

the initial appeal. See State v. Ralph Byrd Cooper, Jr., No. E2008-02044-CCA-R3-CD, 2009

WL 2365571 (Tenn. Crim. App. Aug. 3, 2009). This court affirmed the conviction and the

original sentence imposed upon Defendant of life without possibility of parole as a repeat

violent offender. Id. at *1. On appeal to the supreme court, however, the conviction for

aggravated rape was affirmed, but the sentence was reversed and the case was remanded for

a new sentencing hearing. Cooper, 321 S.W.3d at 503.
Among other prior convictions, Defendant was convicted in Oregon of three counts

of sodomy in the first degree. Or. Rev. Stat. § 163.405. This offense is not a “named felony”

in Tennessee. Tenn. Code Ann. § 40-35-108(b)(5). The trial court based its determination

that Defendant was a “career offender” on its conclusion that each of these convictions was

the equivalent of the Tennessee Class A felony offense of rape of a child, Tennessee Code

Annotated section 39-13-522 (2010 Repl.) See Tenn. Code Ann. § 40-35-108(a)(2) and

(b)(5) (defining a career offender for those sentenced to a Class A felony, and setting forth

how a conviction in another state for an offense that is not a named felony in Tennessee can

be used to establish “career offender” status).

On appeal, Defendant attacks the designation of him as a career offender on three

grounds:

(1) The trial court failed to make a determination of the elements of the Oregon

crime of sodomy in the first degree;

(2) The trial court failed to state on the record that it found “beyond a reasonable

doubt” that Defendant is a career offender; and

(3) The trial court failed to make a determination that none of the three offenses

occurred within 24 hours of the commission of any other sodomy in the first

degree offense.

Defendant argues that his sentence should be reversed and remanded for a new

sentencing hearing, and to require the trial court to state on the record any factual findings

that would justify sentencing as a career offender. The State disagrees and argues that the

judgment of the trial court should be affirmed.

Analysis

In its ruling, the trial court found that the three convictions in Oregon for the offense

of sodomy in the first degree would be a Class A felony in Tennessee. There was no direct

evidence offered at the sentencing hearing to prove the elements of the Oregon crime of

sodomy in the first degree. However, a certified copy of the indictment charging the three

offenses was made an exhibit, along with certified copies of the judgments of the three

convictions.

As the trial court implicitly noted, in order for Defendant to be validly sentenced as

a “career offender,” each of the convictions for sodomy in the first degree must be counted

as one of three separate convictions. See Tenn. Code Ann. § 40-35-108(a)(2). Aggravated

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rape, the conviction for which the sentence of sixty (60) years as a career offender is the

subject of this appeal, is Class A felony. Tenn. Code Ann. § 39-13-502(b).

As pertinent to the issue in this appeal, the “career offender” statute provides as

follows:

40-35-108. Career offender. – (a) A career offender is a defendant

who has received:

* * *

(2) At least three (3) Class A or any combination of four (4) Class A

or Class B felony convictions if the defendant’s conviction offense is a

Class A or B felony;

* * *

(b) In determining the number of prior convictions a

defendant has received:

* * *

(4) Except for convictions for which the statutory elements include

serious bodily injury, bodily injury, threatened serious bodily injury to the

victim or victims . . . , convictions for multiple felonies committed within

the same twenty-four-hour period constitute one (1) conviction for the

purpose of determining prior convictions; and

(5) “Prior convictions” includes convictions under the laws of any

other state, government or country that, if committed in this state, would

have constituted an offense cognizable by the laws of this state. In the

event that a felony from a jurisdiction other than Tennessee is not a named

felony in this state, the elements of the offense shall be used by the

Tennessee court to determine what classification the offense is given.

(c) A defendant who is found by the court beyond a

reasonable doubt to be a career offender shall receive the

maximum sentence within the applicable Range III.

Tenn. Code Ann. § 40-35-108 (2010 Repl.)

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The maximum sentence for a Class A felony, Range III sentence is 60 years. Tenn.

Code Ann. § 40-35-112(c)(1). This Court has held that in the event the proof shows that two

prior convictions occurred on consecutive days, the burden is on the defendant to show that

“offenses which were committed on consecutive days occurred within twenty-four hours of

each other.” State v. Kenneth Edward Watts, No. E2010-00553-CCA-R3-CD, 2011 WL

5517000, at *7 (Tenn. Crim. App. Nov. 8, 2011) (citing with approval State v. John Roy

Polly, No. M1999-00278-CCA-R3-CD, 2000 WL 1606586 (Tenn. Cri. App. Oct. 27, 2000)

which holds “[w]here the defendantseeksthe application of the twenty-four-hour rule [Tenn.

Code Ann. § 40-35-108(b)(4)] and the relevant convictions occur on different days, it is the

defendant’s responsibility to demonstrate that the two offenses occurred within twenty-four

hours of each other.” John Roy Polly, 2000 WL at *3)).

In State v. Travis E. Birchfield, No. 03-C01-9701-CR00025, 1998 WL 2489 (Tenn.

Crim. App. Jan. 6, 1998), relied upon by this court in its holding in John Roy Polly, the

defendant had six prior felony convictions. Three of the defendant’s prior convictions were

for forgery, and the proof at sentencing showed that two of the forgeries occurred on March

27, 1994, and one occurred on March 26, 1994. The parties and this court agreed that the

two offenses which occurred on March 27, 1994, had to count as only one prior conviction.

On appeal, the defendant argued that he had only four prior felony convictions for range

determination purposes because all the forgery convictions should count as only one prior

conviction, presumably asserting that the offenses on March 27, 1994, occurred within

twenty-four hours of the offenses which occurred on March 26, 1994. In rejecting the

defendant’s argument the court in Travis E. Birchfield held,

If the defendant was of the opinion the three forgery felonies from

Washington County constituted but one offense, the defendant should have

presented evidence to establish the times when the offenses were

committed. The defendant was given the opportunity to present evidence

to support his contention. Instead, the trial court was told by defense

counsel there were in fact five felony convictions which could be used to

establish the range.

Id.

In the case sub judice, the only proof as to when the three sodomy offenses occurred

is found in the certified copy of the indictment returned by the Klamath County, Oregon

Grand Jury charging Defendant with three separate counts of sodomy in the first degree, a

Class A felony in Oregon. See Or. Rev. State. § 163.405.

Each count alleges the offense in the exact same language, except Count 1 alleges that

its offense occurred “between November 1 through the 30 , 1993” and Counts 2 and 3 each

st th

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allege the offense charged therein occurred “between December 1 through the 31 , 1993.”

st st

There is no evidence, explicit or implicit, that the two offenses alleged in Counts 2 and 3

either occurred on the same date in December 1993, or occurred within twenty-four hours

of each other, if not on the same day in December 1993. Likewise, there is no evidence that

the offense in Count 1 occurred on November 30, 1993, within twenty-four hours of the

commission of either or both of the offenses charged in Counts 2 and 3. In fact, from the

record, it can be concluded that the offense in Count 1 could have occurred on any one of

thirty days in November 1993, and the offenses in Counts 2 and 3 could have occurred on

any one or two days of December 1993.

According to the most current version of Oregon Revised Statute Section 163.405, the

statute was enacted in 1971 and apparently modified in 1989. See Or. Rev. Stat. § 163.405

(2013), citing laws 1971, c. 743, § 114; Laws 1989, c. 359 § 4 (West, WestlawNext 2013).

Sodomy in the first degree in Oregon has the following elements:

(1) A person who engages in deviate sexual intercourse with another person

or causes another to engage in deviate sexual intercourse commits the crime

of sodomy in the first degree if:

(a) The victim is subjected to forcible compulsion by the actor;

(b) The victim is under 12 years of age;

(c) The victim is under 16 years of age and is the actor’s

brother or sister, of the whole or half blood, the son or

daughter of the actor or the son or daughter of the actor’s

spouse; or

(d) The victim is incapable of consent by reason of mental

defect, mental incapacitation or physical helplessness.

(2) Sodomy in the first degree is a Class A felony.

Each count of the indictment in Oregon contains the following language,

The said defendant(s) [sic], between [ ], in Klamath County, Oregon, did

unlawfully and knowingly engage in deviate sexual intercourse with D.C.,

a child under the age of 12 years, said act of defendant(s) [sic] being

contrary to the statutes in such cases made and provided and against the

peace and dignity of the State of Oregon.

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Defendant was thus charged with, and convicted of, sodomy in the first degree pursuant to

Section 163.405(1)(b), “deviate sexual intercourse” of a child less than 12 years of age.

Unlawful sexual penetration of a child by a defendant or of the defendant by the child, and

if the child is more than three years of age, but less than thirteen years of age, is rape of a

child, a Class A felony, as defined in Tennessee Code Annotated section 39-13-531 (2010

Repl.). Unlawful sexual penetration of a child by the defendant or of the defendant by a

child, and if the child is three years of age or less, is aggravated rape of a child, also a Class

A felony as set forth in Tennessee Code Annotated section 39-13-531 (2010 Repl.). Clearly,

the trial court correctly found that the Oregon offense of sodomy in the first degree in

Defendant’s case should be treated as a Class A felony pursuant to Tennessee Code

Annotated section 40-35-108(b)(5). Even though the trial court did notspecifically reference

a copy of the Oregon statute, in this particular case, the trial court’s reliance upon the

language in the indictment, which happened to mirror the elements as provided in the statute,

satisfied the trial court’s requirement to determine the elements of the Oregon offense.

Defendant is not entitled to relief upon this complaint.

Defendant is not entitled to relief on the basis that the trial court did not state on the

record that it had “found beyond a reasonable doubt” that Defendant was a “career offender.”

Defendant has cited no case law or statute that requires the trial court to specifically verbalize

that it found him to be, beyond a reasonable doubt, a “career offender.” Defendant similarly

cites to nothing in the record which would imply that the trial court used a less stringent

standard in finding Defendant to be a “career offender.” The statute is clear about the trial

court’s necessity to make its finding beyond a reasonable doubt. In this case, we presume

that the trial court followed the statute in light of the proof presented and we will not infer

from this record that the trial court used a lesser standard of proof than “beyond a reasonable

doubt.”

Finally, Defendant argues that the trial court’s sentencing determination of

Defendant’s “career offender” status must be reversed because the trial court failed to

specifically find that the three sodomy in the first degree convictions were not subject to

consideration as only one or two prior convictions under the “twenty-four-hour offense rule”

found in Tennessee Code Annotated section 40-35-108(b)(4). First, we note that the

statutory elements of the Oregon offense of sodomy in the first degree do not include

“serious bodily injury,” or “bodily injury,” “threatened serious bodily injury,” or “threatened

bodily injury” to the victim. As applicable, all that must be proven beyond a reasonable

doubt in order to convict a person of the offense in Oregon is that the defendant engages in

deviate sexual behavior with a victim “under 12 years of age.” Accordingly these

convictions would not be an exception to the “twenty-four-hour offense rule.” That said,

Defendant, who chose to represent himself at the sentencing hearing, offered no proof of or

argument that any of the three sodomy in the first degree convictions could not be counted

asseparate convictionsforsentencing range determination purposes. Defendant’s only stated

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basis of objection to use of the prior Oregon convictions for sodomy in the first degree was

his assertion (without submitting any evidence such as transcripts or guilty plea documents)

that he was not apprised of certain warnings when pleading guilty, pursuant to State v.

Mackey, 553 S.W.2d 337 (Tenn. 1977) (abrogated in part by Tennessee Rules of Criminal

Procedure, see State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000)). He does not assert this

ground on appeal.

As noted above, the available proof in the record is that the sodomy offense in Count

1 could have occurred on any one of thirty days. The two offenses alleged in Counts 2 and

3 could have occurred on any one of thirty-one days. The important fact, though, is that there

is nothing in the record to even hint that any one of the sodomy offenses occurred within

twenty-four hours of any other sodomy offense, and Defendant did not question this fact at

the trial court level. Defendant is therefore not entitled to relief in this appeal based upon this

argument.

In conclusion, we affirm the judgment of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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