# FILED
May 14, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUA RY 1999 SESSION

STATE OF TENNESSEE, ) C.C.A. No

. 03C01-9804-CR-00136 ) Appellee, ) McMinn County ) vs. ) Hon. Mayo L. Mashb urn, Judge ) (Deceased) (Trial) LEE LANCE, ) ) Hon. Carroll L. Ross , Judge Appellant. ) (Motion for New Trial) ) ) (Rape of a Child, Incest)

FOR THE APPE LLANT: FOR THE APPELLEE: ELLERY HILL (DEC EASED) (at trial) JOHN KNOX WAL KUP Attorney at Law Attorney General & Repor ter CHARLES M. CORN TODD R. KELLEY District Public Defender Assistant Attorney Gener al 53-A Central Ave., P.O.Box 1453 425 Fifth Ave. N., 2d Floor Cleveland, TN 37364-1453 Nashville, TN 37243-0493 THOMAS E. KIMBALL (at trial) JERRY N. ESTES Assistant Public Defender District Attorney General 110 1⁄2 Washington Ave., NE Athens, TN 37303 SANDRA DONA GHY Assistant District A

ttorney GERALD L. GU LLEY, JR. (on appea l) P.O. Box 647 Baker, McReynolds, By rne, O’Kane, Athens, TN 37303-0647 Shea & Townsend 607 Market St., Eleventh F loor P.O. Box 1708 Knoxville, TN 37901-170 8

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE

OPINION1 Tenn. Code Ann. § 39-13-522(a) (1997).
2 Tenn. Code Ann. § 39-15-302(a)(1) (1997).
3 It is this court’s policy not to reveal the names of minors involved in sexual abuse. 2

The defendant, Lee Lance, appeals from his convicti ons of two counts of rape of a

child 1 and two counts of incest 2 in the McMinn County Criminal Court. The trial court imposed an ef fective sen tence of 25 years in confinement. In this direct appeal, the defendant raises three issues:

I. Did the trial court improperly assist the state in proving al l of the necessary elements of the offenses o f rape o f a child and incest, thereby violating the defendant’s rights to a fair trial? II. Did the trial court unfairly prejudice the defendant by all owing the state to ask leading qu e s tions on its direct and redirect examinatio ns of the alleged victi m? III. W as the evidence sufficient to suppor t a jury verdict

of guilty on the charg es of rape of a child and incest? After a review of the recor

d, the briefs of the parties, and t he appli cable law, we affirm the judgment of the trial cour t.

The state presented the followi ng pr oof at tr ial. The five-year old female victim, 3 identified the defendant, her father, as the person that committed the offenses against her. She testified that she and th e defendant were in an outbuilding near the defendant’s home whenthe defendant pulled the victim’ s pants halfway off. The defendant had his pants halfway off as he laid on top of the victim and touched her with his penis. She specifically stated “he put it on my private” and it hurt. The victim did not remember telling an yone except her mother about the events in the outbuilding

.

After the victim recounted the first ass ault, which is the subj ect of counts one and two, theprosecutor asked her if the defendant did anything else to her. She replied, “Yes.” When the prosecutor asked “What else did he do . . . ?,”3

the transcript indicates “(No response.).” Then the prosecutor asked, “Did he touch you somewhere else?,” and the t ranscript indicates “ (Nods head affirmat ively.).” Th e victim testified that the nod meant “yes,” but when asked where else the defendant touched her, the victim began crying. The victi m continued to cry in the face of repeated attempts to elicit her res ponse to the question, and the trial court ultimately declare d a recess. During the recess, the child sat w ith an officer and he r stepfather

who was instruct

ed by the trial court to try to calm her but not to discuss the case with her. When testimony re sumed, the victim again ac knowledged that the defendant touched her with his peni s somewhere besides her genital area, but again, when questioned wher e, she began crying.The court suggested that the prosecutor

ask her “question another way,” and when she a sked if the defendant put anything in the victim’s mouth, the transcript indicates “(No response; witness crying.).” After the vict im indic ated she was scared, the pr osecutor moved to another line of inquiry, but w

hen she returned t o the qu estion about the second assault, the victim resumed cry ing. At this point the pr

osecutor said, “Judge may be I’ll let [defense counsel] ask some questions.” After cross-examination, a brief redirect examination abou t con fusion over the victi m’s grandmother’s name, and a brief re-cross examination about the grandmother, the prosecu tor said, “That’s all I have, your Honor.”

The trial judge then asked, “Not gonna ask her that question again?” At this point, the prosecutor asked if the defendant put his penis “anywhere else,” and the victim responded by indicating to her mouth. She then affirmed that the defendant put his penis there.

A former detective with the McM inn County Sheriff’s Department, La rry Moses, testified that he investigated the allegations of the v ictim. He we nt to the building where the offenses allegedly occurred and took photograph s. After interviewing

the victim at the hospital, he had her underwear tested and a rape kit prepared. Both the underwear and the r ape kit returned with

negative results for4

body f luids. He did not obtain any hair s amples from anyone, nor did he tes t the mattress in the outbuilding for any s igns of physical ev idence. Instead, he relied on Dr. KimberlyBreeden’s conclusion that there were signs of sex ual penetration. Dr. Breeden testified that she examined the victim on May 30, 1994.Dr. Bre eden dis covered two lacerations on the l abia minora, and a torn hymen. Dr. Breede n opined that penetration was the onl y way to create a tear to

the hymen consistent with the victim’s and that the injuries occurred somew here between 48 and 72 hours prior to the examination. Dr. Breeden could not identify the source of penetrati on, but she opined that the victi m had been penetrated.

Bruce Lance , the victim’s brother and the defendant’s son, testified that he and the victim wer e visiting the defendant at the time of the alleged offenses. He saw the defend ant and the victim alone in the out building w ith t he victim standing in front of a mattress and thedefendant sitting on the mattress. He did not see the defendant harm the victim. The victim did notsay anything to him about hurting or that any one harmed her.

The defense presented the follo wing proof at trial. The defendant testified that the victim was visiting with him on the weekend prior to May 30, 1994. He testified t hat he never had sexual c ontact with her. The only reason that the victim accused him of these offenses is because the victim’s mother, h is e x-wife, “put it in her head.” He said that the victim’s mother stated she would get even with the defendant for having an affair wi th her ex-sister-i n-law. The defendant testified that he was nev er alone wi th the victim in the outb uilding, b ut that he, th e victim, Bruce Lance, the defendant’s sister Autumn,the defendant’s fat her, a nd the defendant’s grandmother went to the outbuilding to see a large mouth bass fish in the freezer. The victim di d not want to return home after visiting with the defendant that weekend.5 The defendant’s mother an d father testified at the trial. The defendant’s father, E.H. Lance, corroborat ed the defendant’s testimony regarding the large mouth bass fish inci dent. Mr. Lance te stified that t he victim did not act strange or distressed, but, inst ead, she was running and playing all week end. The defendant’s mother, Martha Lance, testified that she picked up the chil dr en on Friday night. Mrs. Lance w

as bathing the victim w hen the victi m stated tha t her bottom was hurting. Mrs. Lance examined the victim’s bottom, finding it to be red and irritated, but she did not think the victim req uired medical attention. The victim did not know wh y s he was hurting. After Friday night, the victim did not complain about any pain. The victi m was running and play ing all weekend.

The last witness for

the defense wasthe defendant’s fiancee, Brook Taylor. Ms. Taylor testified that the victim’s mother r

efused to allow the defendant to buy the children any presents because she wanted t o use the children for revenge against him. The victim’s mother was upset about the defendant dating her ex-sister-in-l aw.

On this evidence, the jur y found the defendant

guilty of two counts of rape of a child and two counts of incest.

I. Improper A

ssistance The defendant contends that the tri a l judge improperly assisted the state by “directingthe prosecutor to ask additi onal questions to prove an essential element of the charge.”The prosecutor asked the v ictim several times w

hether the defendant had touched her somewhere els e, b ut the witness began cry ing and could not answer

the prosecutor. After cross examination, redirect, and recross, the prosecutor

said “that’s all I hav

e, your honor.”

The trial court responded by saying4 We do not impose a plain error analysis in reviewing this issue, see Tenn. R. Crim. P. 52(b), bec ause of the language of Tennessee Rule of Evidence 605: “The judge . . . presiding at trial may not testify at that trial. No objection need be made in order to preserve that point.” 6 “Notgonna ask her that question again?” Without objection from the defense, 4 the prosecutor

then asked the victim if the defendant had put his penis anywhere else. She responded that he put his penis in her mouth. This was the only evidence of the second count of rape of a child and s econd count of incest.

The defendant relies on State v. Brock , 940 S.W.2d 577 (Tenn. Crim. App. 1996), for his allegation of assistance to the state by the trial judge. In Brock , the prosecutor and defense counsel s tated they had no further proof. Brock , 940 S.W.2d at 580. The trial judge noted the lack of evidence regarding the defend ant’s age, which is an essenti al eleme nt of a statutory rape charg e. Id. The trial judge
sua sponte reopened the proof by recalling th e defendant to the witness stand ov er a defense objection. Id. Without the judge recalling the defendant, direct evidence of the defendant’s age would not have been in the evidence. This court concluded the trial judge abused his discretion in recalling the defendant and questioning him about his age. Id. at 581.

However, as the defen dant concedes, this case is different from Brock

. Here, the trial judg e did not inject himself into t he process by recal ling a witness and asking her

an y q ue st io ns . We

believe the proper inq uiry is whether the trial judge “committed an error which resulted

in an unjust disposition of the case.” S tate v. Hawk , 688 S.W.2d 467, 472 (Tenn. Crim. App. 1985) (this court rejected the defendant’s claim that the trial judge made prejudicial c omments and shoul d have recused himself). Although the trial judge’s comment may have sugges ted a further line ofinquiryto the state, we find that the c omment did not result in an unjust disposition of the case. The comment did not necessarily show that the trial7

judge possessed any

bias or opinion regard ing the defendant’s guilt. See State v. Suttles , 767 S.W.2d 403, 407 (Tenn. 1989). We glean from the record that all parties, including the trial judge, were tryi ng to diminish the trauma th at testifying
was imposing upon this very young witness. Given the overall context, we view the court’s actions as an outgrow th of this accommodation rather than a manifestation of bias.

In fairness, however, th e issue is a clos e q uestion. The victim’s response to the state’s final question, as prompted by the trial judge, supplied the onlybasis in the proof to support the third and fourth counts of the indic tment. The defendant argues in his brief that “without the tri al court’s active assi stance with the Sta te’s ca se...the State would not hav e been able to prove ever y element” of the third and fourth countsof the indictment. On the other hand, this “but for” argument is not squarely dispositive of the is sue. We are influenced in our decision by the fact that the trial judge’s questionwas asked during the examination of the state’s first witness and was not imposed at the conclusion of e vidence or even after the state rested its case. There is no indi cation in the record that the state would not have revisited the lack of proof on the third and fourt h c ounts before it closed its
case ha d t he

tr ia l j ud ge

not a sk ed hi s q ue st io n w he n h e d id . We conclude that the trial court’s action did not deprive the defendant of a f air trial.
II. Leading Questions Next, the defendant challenges the trial court’s deci sion to allow the
use of leading questions by the prosecutor during th e direct examination of the victim. It is within the tr ial court’s discretion to allow the use of leading questions. Mothershed v. State , 578 S.W.2d 96, 99 (Tenn. Crim. App. 1978). We review this deci s ion under an abuse of discretion stan dard. See State v. Caughron , 855 S.W.2d 526, 540 (Tenn. 1993).8 The trial court’s decision to allow leading questions in chi ld sexual abuse cases has been consistently up hel d by this court. See State v. William Dearry , No. 03C01-9612-CC-00462, slip op. at 20-21 (Tenn. Crim. App., Knoxville, Fe b. 6, 1998); State v. James Ryion , No. 01C01-9511-CC-00365, slip op. at 1 6 (Tenn. Crim. App., Nashvil le, Dec. 30, 1996); State v. Hugh Nicely , No. 01C 01- 9506-CC-00160, slip op. at 8 (Tenn. Crim. App., Nashvil le, May 9, 1996); State v. Craig Allen Lewis , No. 01C01-9307-CC-00232, slip op. at 14-15 (Tenn. Crim. App., Nashville, Jan. 12, 1995). “[U]nless [the appellatecourt] can see that the ques tion
was not only clearly leading but clearly prejudicial, the action of [the trial court] will not be interfered with by [the ap pellate court].” Hale v. State , 281 S.W.2d 51, 58 (Tenn. 1955).

The victim was five years old at the time of this trial. The

nature of the situation was very upsetting to her . She bar ely responded to the prosecutor’s questionsby saying “y

es” or “no.”

She cried and became so upset at one poi nt that
a recess was necessar y. Leading questions were the only w

ay to elicit the necessary information from this child. Ac cordingly, the tri al judge did not abuse his discretion in allowing the pro secutor to use leading questions during the direct examinatio n of the victim.
III. Sufficiency

The defendant challenges the sufficiency of the evidence. When an accused challenges the suffici ency of the evidence, an appellate court’s standard of review is w

hether, after considering the evidence in the lig ht most favorable to the prosecution, any

rational trier

of fact could have found the essential elements of the crimebeyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guil t based upon direct evidence,5 The offense of rape of a chil d “is th e unlaw ful sexual pene

tration of a victim by the defendant or the defendant by a victim, if su ch victim is less than thirteen (13) years of ag e.” Tenn. Code Ann. § 39-13-522(a) (1997). The offense of incest is committed when a pe rson “engages in sex ual penetration . . . with a person, knowi ng such person to be, wi thout regard to legiti macy: (1) The person’s natural parent, child . . . .” Tenn. Code Ann. § 39-15-302(a )(1) (1997). 9 circumstantial evidence, or a com binatio n of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this c ourt should not reweigh or reevaluate the evi dence. S tate v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the

credibility of the witnesses, the weight and value of the evidenc e, as well as all factual issues rai sed by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evi dence. Cabbage , 571 S.W.2d at 835.

The defendant contends that the state did not presentevidenc e of sexual penetra tion by the defend ant in ord er to prove the offenses alleged in counts
one and two. The

defendant arg ues that the v ictim’s te stimony, “ he put it on my private,” does not establish sexual penetration by the defen dant. Sexual penetration is an essential element of rape of a child and incest. 5 Sexual penetration is defined as “sexual intercourse, cunnilingus , fellatio, anal intercours e, or any other

intrusion, however

slight, of any part of a per son’s body or of any

object into the genital or anal openings of the victim’s, th e defendan t’s, or any other person’s body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-10

501(7) (1997).

T he defend ant arg ues that it was necessa ry for the victim to tes tify that the defend ant put h is penis “i n” her, in stead of “on” her, t o prove penetration. The victim does not have t o use specific words

to prove penetration. This court has found sufficient evidence of sexual penetration from theexact language used by this victim in the case of State v. Curtis Newbern , No. 70 (Tenn. Crim. App., Jackson, July 5, 1989).

In Newbern , the victim testified that the defendant “took his priv ate out and put it on my private.” Newbern , slip op. at 2. There was evidence of tear s on the Newbern victi m’s hymen as well. Id. On this evidence, this court found sufficientproof of sexual penetration. Id. The same evidence was provided in this
case. The defendant laid on top of the victi m, touched her with his penis, and

“put it on my private.” Dr. Breeden testified that the victim had two v

aginal lacerations and a torn hymen, w hich is consistent with penetr ation. This evidence w as sufficientto prove sexual penetr ation and sustain the

jury’s verdic

t of one count rape of a child and one count of incest.

Fin ally, the defendant c ontends that there is no te stimony fro m th e st ate’s witnesses that the defendant committed these acts within the time fram e which Dr. Breeden testified the offense w ould have occurred. How ev er, th e defendant and his parents testified that the victim was v isiting the defendant athis parents’ home durin g the time frame for which the offenses occurred. This evidence was sufficient to support the jury ’s conclusion that the

defendant was with the victim during the time frame for which the offenses occur red.

IV. Conclusion11 In consideration of the fo regoing and the record as a whole, the judgment of the trial court i s affirmed.

In this case, the terms of the four j udgments are not consi stent with respect to the con current a nd conse cutive running of the sentences. Some “crosswiring” has occurred, and a lthough the trial court made an attempt to rectify the problem through an order t o amend the judgm ents, we be lieve the problems persist and moreover dis cern that the ef fect of the ju dgment language is at oddswith the sentences as announced by the trial court at the senten ci ng hearing. When the judgmentin a case conflic ts with the judge’s la ngu age from th e transcript of the sentencing hearing, the latter contr ols. State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). At the conclusion of the sentencing hearing, the trial judge clearly imposed the two rape sentences of 20 years each to run concurrently with each other and the t wo incest sentences of five years each to run concurrently with each other. These two effective sentences--20 years for r ape and f ive years for incest--
were imposed to run consecutively to each other to

yield a final effective sentence of 25 years. This court’s judgment should amend the trial court’s j udgments in order to make them reflect the met hod of serving the var ious sentences as establishe d by the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________12

NORMA MCGEE OGLE, JUD GE