# FILED

Au gust 28, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON DECEMBER1996 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9507- CC-00204

) ) Chester Count

y v. ) ) Honorab le John F ranklin Mu rchison , Judge ) VAUGHN MIXON, ) (Direct Appeal/W rit of Error Coram Nobis) ) Appellant. )

DISSENTING OPINION
I respectfully

disagree w ith the resul t reached in th e majority opinion by which thi s case is r

emanded to the trial court for further proceedings

relative to the petition for writ of error coram nobis. I believe that th e petition was, and remains, prematurely filed and that we should rule upon the merits of the defendant’s ap peal in his convi cting case

.

The case befo re us presents a consolidated ap peal of the def endant’s convicti ons and sentences with his later filed coram nobis petit ion. The judgment s of convicti on were enter

ed in March 1995 and both the order denying a new tri al and the notice of appeal were entered in April 1995. A t that point, the case was w ithin the jurisdiction of the court of criminal appeals. The coram no bis petition was filed in December 1995 and deni ed in March 1996. The notice of appeal from the denial was filed in April 1996 and this court con solidated the two appeals at the d efendant’s request.1 Co ntrar y to the m ajority op inion’s v iew tha t the pe tition wa s ac tually filed too late, I be liev e it w as filed too ea rly. 2

The majority opinion undertakes only a r eview of the coram nobis i ssues. Howeve r, I believe that the only justiciabl e issues before us are those pres ented in the defendant’s appeal of his judgments of conv iction.
A writ of error coram nobis may be pursued relative to a criminal case convicti on, but it is generally to be governed by the rules and procedure applicabl e to civil coram nobis cas es. T.C.A. § 40- 26-105. In this respect, the w rit “may

be had within one(1) year

after the judgment

becomes final . . . .” T.C .A. § 27-7-103 (emphasis added) . The finality of the judgments before us await s the outcome of the direct appeal. Thus, a coram nobi s writ may not y et issue. 1

This leaves us to decide the def endant’s issues presented in the direct appea l. In tha t appea l, the de fend ant asse rts the f ollowing:

(1) the ev idence is in sufficient to suppor t the verdi ct; (2) it was er ro r to allow both the attempted r

ape and sexual batter y conviction s to stan d based upon a si ngle tou ching; (3 ) it w as error to

admit the defendant’s prior conv iction for sexual battery an d erro r to reject a mistrial when the prosecutor

elicited a response from the victim in viol ation of a prior court order; (4) it was error to deny a new trial “in light of juror’srelationship with v ictim’s mother ;” (5) it was error t o denya new tri al because a frie nd of the victim’s family left the courtroom duri ng testimony and reported the testimony to the victim’s mother, who was a witness; (6) the tri al court impos ed an excess ive sentenc e.

As to the sufficienc

y of the conv icting ev idence, the defendant argues nothing to poi nt out any weakness in the p roof, and under the appe llate rev iew standard, I see no weakness regardingsufficiency. However, I do beli eve that3

convicti ons for both attempted r ape and sexual battery s hould not stand i n light of the double jeopardy

analysis provided i n State v. De nton , 938 S.W.2d 373 (Tenn. 1996). The defendant placing his hand on the v ictim’s i nner thigh an d making a st atement of desire consti tuted the essenti al evidenc e for both offenses. Only one victi m was involved and both the attempted rape and sexu al battery statutes are i ntended to deter sexually assaultive conduct. Under these circ umstances, the sex ual battery convicti on should merge i nto the attempted rapeconvicti on, it involving the greater offense. See State v. Davis , 613 S.W .2d 218, 220 (Tenn . 1981).

As for the state’ s use of the defendant’s 1 986 sexual bat tery conv iction for impeachment purposes , the record i s somewhat unc lear about w hat actually occurred. The prosecutor s ought to intr oduce three pri or Missi ssippi felony convicti ons for impeaching the defendant: (1) a 1978 bu rglary -- three years, (2) a

1986 sexual battery -- ten years, and (3) a 1981 marijuana possession -- one year. The trial court considered the burglary convicti on too old and the mar ijuana conv iction of “dubi ous value” and prohibited thei r use.

Howeve r, after stati ng that the pr osecutor coul d ask about the se x offense, the trial court discussed the matter with def ense counsel in such a way that it indicated that i t was rul ing that the s exual batter y convi ction could not

be used for impeachment. In fact, t he trial cour t stated that the convicti on’s prejudi cial effect far outweigh ed its probati ve val ue. Also, it stated that it had no intention of al lowing the convictio n into evid ence f or the pu rpose of affe cting the defen dant’s credibili ty, altho ugh it noted that it may allow the conviction substantively under the existing circumstances if they involved iss ues of motive, i ntent or the li ke.

However, after the defenda nt testified on direct examina tion, the first question in the state’s cr oss-examin ation elici ted the fact that the de fendant was4

convicted in Mississippi of sexual battery in 1986. There was neither an ob jection nor a request for a limiting instruction at that time, nor was one g iven. At t he end of the case, the prosecutor argued to the jury that the con viction impeached the def endant’s testimony so that he was not to be believed. Af ter closing arguments, the trial court instructed th e jury to

limit consi deration of the conv iction in i ts deliberati ons to the iss ue of the defendant’s credi bility. Finally , I note that at t he motion for new trial hear ing, the trial cour t justified the convicti on’s admissio n into evi dence as impeachment of the defendant’s credibi lity.

Under all of these circumstance s, I believe that the record essentially reflects that thetrial cour t admitted the conv iction for impeac hment purposes and t hat the defenda nt adequately preserved the issue for review in the jury-out hearing. In this respect, I bel ieve that th e state should not have been all owed to impeac h the defendant with the pr ior sexua l battery convicti on. In State v. Barnard , 899 S.W.2d 617, 622 (Tenn. Crim. App. 1994 ), this court concluded that it was error to allow the prosecutor in an aggrav

ated sexual battery cas e to use a prio r convic tion for sexu al battery

for impeaching the defe ndant. The court not ed that the similarity of the charges would create undue prej udice whi le the prior convicti on, itself, had sl ight probati ve val ue regar ding the defen dant’s

credi bili ty. The pres ent cas e involve s the s ame pro blems and I believe error was committed. M oreover, I believe t hat the error was harmful i n the sense that the case boiled down to the defendan t’s testimony against the victim’s testimony. Obviously, the victim’s mother and the deput ies’ testimony was generally corroborative of the victim’s account, particularly her physical and emo tional state, but it did not contradi ct the defendant’s ac count. Thus, I bel ieve that th e sex-re lated convicti ons should be reversed.5 Although the defendant also complains about the trial court’s fail ure to grant a mist rial, his

brief does not ci te to the recor d, argue, or

otherwis e disclose any detail or di scussion about the relevan t events. Thi s “issue”is wai ved.

As to the two remaining issues rel ative to tr ial error , I see nothing that warrants reversal. As for the claimed improper contact with the juror, the defendant ha s shown neither impropriety nor prejudice. W hen a jury is not sequestered, as in this case, the defendant must prove more t han just ming ling before theburden shifts to the state to prove the lack of prej udice. See State v. Blackwell , 664 S.W.2d 686, 688 (Tenn. 1984). Ag ain, relati ve to the cl aimed violation of the wi tness seques tration rul e, see Tenn. R. Evid. 615, although the de fendant proved that a friend of the victim’s mother, who w

as a sequester

ed witness , talked w ith the vi ctim’s mother during tr ial breaks, there was no ev idence of the substance of the convers ations. Thus, ther e is no showing of a violati on of the rule.

Finally, as for sentencing, I agree with the defenda nt that the trial court should not have applied enh ancement fa ctor (4), regarding the victim being particularly vulnerabl e because of her ag e. The thirteen- year-old victim w as able to res ist the defendant , summon help, and testify at the trial. The state presen ted nothing to reflect that she was particularlyvulnerabl e because of some age- related limi tation. See , e.g. , State v. Poole , 945 S.W.2d 93, 96-98 (Tenn. 1997).

On the other hand, I disagree with the defendant ’s contention that the trial court should not have appli ed enhancement factor ( 15), regar ding an abuse of pos ition of private tr ust, to the attempted incest sentenc ing. The defendant cl aims that the factor is an essential eleme nt of the attem pted incest because bot h rely upon the fact that the defen dant is the victim’s father. However, incest consists solely of engaging in sexual penetr

ation wit h a person know n to be wit hin a design ated kinship r ange,6

including a child. See T.C.A. § 39-15- 302(a). As for enhancement factor (15) , the mere fact that the defendant is the victim’s fa ther does not justify its application. It is the actual nature of the relations hip, includi ng legal duties, that may form a position of trust. See State v. Ki ssinger , 922 S.W.2d 482, 488-89 (Tenn. 1996). Thus, a position of trust is not an element of an incest -related offense.

Despite the tr ial court’ s inappropri ate considerati on of enhancement factor (4), it properly relied upon the defend ant’s history of criminal convictions and behavior, enhancement factor (1) , and his abuse of tr ust, enhancement factor (15). Giv

en the fact that his pri or history includes dr inking-r

elated offenses and a sex ual assault, circumstances shown to exist in the present case, the prior convictions and conduct are entitled to substantial w eight. Cons idering t he foregoing with the fact that no mitig ating circumstances

were found by

the trial court to exi st, I see nothi ng wron g with the sentences imposed by the tri al court.

In conclusion, I would r everse the convicti ons for the attempted r ape, attempted incest, and sexual bat tery and remand the case for a new trial. M oreover, I would dis miss the w rit of error coram nobis case as being prematurely filed.

______________________________ Joseph M. Tipto n, Judge