# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-96 0 7-CC-0027 2 ) vs. ) Anderson County ) RICHARD A

LLEN KIDD II, ) Hon. James B. Sc ott, Jr., Judge ) Appellant. ) (Rape)

FOR THE APPE LLANT: FOR THE APPELLEE: J. THOMAS MARSHALL, JR. JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter NANCY MEYER CLINTON J. MORGAN Asst. District Publi c Defender Assistant Attorney Gener al 101 S. Main St., Ste. 450 Criminal Justice Div ision Clinton, TN 37716 450 James Robertson Parkwa y Nashville, TN 37243-0493 JAMES N. RAMSEY District Attorney General JANICE G. HICKS Asst. District Attor

ney General 127 Anderson Co. Courthouse Clinton, TN 37716
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 The defendant has not challenged the sufficie ncy of the convicting

evidence.

2 The victim's name is not pertinent to this appeal. 2 OPINION The defendant, Richard Allen Kidd II, appeals his convic

tion of rape following a jury trial in Anderso n County Criminal Co urt. Kidd is curren tly serving a ten year sentence for his cr ime in the Department of Correction. In this direct appeal, he raises three iss ues for our consideration: 1. Whether the indictment is fatally insufficientin that it does not contain an allegation of the re quisite mental state. 2. Whether the trial court erred i n allowing the state' s exhibits to be published t o the jury where they were never formally introduced by motion into ev idence. 3. Whether the trial court erred in imposing a ten year

sentence. Followinga review of

the record and the briefs of the parti es, we affirm the judgment of the trial court.

At trial, the state's evidence 1 established that Kidd and th e victim 2 dated and lived together. By all accounts, the two had a stormy, physically violent relationship. At the time of the offense, the victim was dating someone else. She and Kidd were no longer living together,and although he had spent the night at her trailer home on some occasions since thei r breakup, she had informedhim he was no longer welcome pri or to the events that form the bas is for his conviction.

In the early morning hours of November 30, 1 994, the victim awoke to find Kidd in her home. The victim noti ced Kidd was intoxi cated. She asked him to leave, but Kidd made advanc es toward her. A protracted struggle ensued, with both parties receiving injuries. Ultimately, Kidd v aginally raped the v

ictim. After the attack, Kidd fell asleep or passed out,and the victim, who did not have atelephone, escaped her trailer and went to a grocery store , where shecalled 911 and alerted the authorities to

the crime that had just occur red. Respondingofficers found Kidd asleep o r passed o ut in the vi ctim's ho me and to ok him int o custod y.3 I In an issue raised for the first time on appeal, Kidd questions whether the indictment

against him sufficiently alleges thecrime of rape. He relies on this court's opinion in State v. Roger Dale Hill , No. 01C01-9508-CC-00 267 (Tenn. Cr

im. App., Nashville, June 20, 1996) , perm. app granted (Tenn., Jan. 6, 1997) and State
v. Nathaniel White , No. 03C01-9408-CR-00277 (Tenn. Crim. App., Knoxv ille, June 7, 1995). Since the

filing of the

defendant's br

ief, our supr

eme court has reversed this court's decision in Hill

. See State v. Hill , --- S.W.2d ---, No. 01-S-01-9701-CC00005 (Tenn. Nov. 3, 1997).

The q uestion raised in Hill is whether a charging instrument which chargesa defendant w ith a crime that by its statutory terms does not expressly require a culpable mental state is legally sufficient under the Sentencing Reform Act of 1989, where the instrument d oes not allege a culpable mens rea . Hill , --- S.W.2d at ---, slip op. at 2. The Sentencing Reform Act of 1989 requires a culpable mental state in order to establish an offense unless the statuto ry definitio n of the crime "plainly dispenses witha mental element." Tenn. Code Ann. § 39- 11-301(b) (1997).

The supreme court in Hill said that a charging instrument

which does not allege a culpab le me ntal state, the statutory definition of the crime not p lainly dispensing with a mental element, is nevertheless sufficient to support prosecution where (1) the language of the indictment is sufficient to mee t th e constitution al re quirements of notice to the ac cused of the c harge against which the accused must defend, adequate basis for entry of a proper j udgment , and prot ection f rom doub le jeopar dy; (2) the form of the indictment meets the requi rements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be log ically i nferred from the conduct alleged. Hill , --- S.W.2d at ---, slip op. at 3. The supreme court scrutiniz ed the Hill indictment under the three-part i nqui ry above and determined the indictment was legally sufficientto support prosecution of the accused, notwithstanding the absence of an3 The language of this indictment is virtually i dentical to the language of the

indictment in Hill , though the defendant in Hill was indicted for agg ravated rape and Kidd was indicted for r ape. 4 explicit allegation of a mens rea . Hill , --- S.W. 2d at ---, s lip op. at 4-10. Spe cificall y, the supreme court noted, "[T]he act for which the def endant is indicted, 'unlawfully sexually penetrat[ing]' a person under the age of thirteen, is committa ble onlyif the principal actor's mens reais intentional, know ing or reckless. Thus,the required mental state may be inferred from the natur e of the criminal conduct alleged." Hill , --- S.W.2d at ---, slip op. at 9.

We find the case at bar very simila r under the Hill analysis. The statute proscribi ng the offense d oes not requ ire a specific culpable me nta l state. See Tenn. Code Ann. § 39-13-503(a)(1) (1997). The indictme nt in this case alleges the defendant "unlawfully and forcibly engage[d]

in unlawful sexual penet ration of [the victim], i n violat ion of T[ennessee] C[ode] A[nnotated secti on] 39-13-503, against the peace and dignity of the State of Tennessee." 3 In pertinent part, "Rape is unlawful sexual pene t ration of a victim by the defendant . . . accompanied by force or coer cion . . . to accomplish the act . . . ." Tenn. Code Ann. § 39-13- 503(a)(1) (1997).

The indictment in this ca se clo sely follows the sta tutory language describing the crime. It complies with the statutory f orm by stating the "facts constituting the off ense in or dinary a n d concise language, w ithout prolixity or repetition, in such a manner as t o enable a person of common understanding to know what is intended, and w ith that degree of

certainty which will enable the court,
on conviction, to pronounce the proper judgment . . . ." See Tenn. Code Ann. § 40- 13-202 (1997); Hill , --- S.W.2d at ---, slip op. at 3.Further, the mental sta te i s capable of logical inference from the conduct alleged. See Hill , --- S.W.2d at ---, slip op. at 3; s ee a lso State v. Marshall , 870 S.W.2d 532, 537-38 (Tenn. Crim. App. 1993). As the supreme court note d in Hill , the allegation of "unlawfully sexually penetrat[ing]" a victim necessarilyrequires an intentional, knowing or reckless mens4 We find the state's waiver arguments which relate to the suffici ency of the defendant's brief on this issue la cking in merit, though

we decline to belabor th e point with lengthy analysis. 5 rea . Hill , --- S.W.2d at ---, slip op. at 9. Therefore, the allegation rai ses an inference of the required mental s tate. Hill , --- S.W.2d at ---, slip op. at 9.

Accord ingly , the indictment satisfies the thr ee Hill requirements for sufficient allegations to suppor t prosecution. See Hill , --- S.W.2d at ---, slip op. at 3. Kidd is not entitled to relief on this basis.

In passing, we note tha t Nat haniel White , relied upon by the defendant, is not applicable. In Nathaniel White , the statute proscribing possess ion of marijuana set forth a specific c ulpable mental state of “kno win g”. See Tenn. Code Ann. § 39-17 -418 (a) (Supp. 1994). The rational e in Nathaniel White for dismissing a countthat did not allege the poss ession as knowing is not applicable to the present case which, like Hill , involves a statute that “omits a reference to a specific mens rea .” Hill --- S.W.2d at ----, slip op. at 2. Hill controls the result in the present case.

II

In his second i ssue, Kidd claimsthe trial court erroneously allowed the state's exhibits to be published to the jury without the exhibits having been formally admitted into evidence. The state makes a v ariety

of w aiver arguments 4 and ultimately says any error is no more than harmless.

The record reflects a somewha t relaxed approach to trial practice and procedure in this matter. During i ts case-in-chief, the state referred to a variety of exhibitsand had these exhibits mark ed for identification. The e xhibits, including several photographs, two items of the victim's clothing, and correspondence from the defendant to the victim, wer e authenticated by the

witness, but the state nev er moved that these exhibits be r eceived into

evidence. Therecord reflects that prio r6

to these exhibits b eing pass ed to the jury, the prosecutor requested that the court allow publication of the exhibits , which the court a ll owed in each challenged instance. The defendant offered no objection to this pr ocedure for the first severa l exhibits. When defense counsel eventually objected, she acknowledged her failure to object promptly to

publication of the previous exhibit s. The court overruled the objection, explaining that it c onsidered the state's req uest that the exhibit s be published to the jury suffici ent to allow such.

The proper procedure for admissi on of tangible items of evidence has been aptly summarized by one commentator: An attorney who wants to intr oduce an exhibit at trial should (a) ask the court reporter or other court officer to mark the exhi bit for identification (exhibits

should be marked numerically and sequentially without reference to the proponent); (b) show the exhibit to adversary counsel (this should be reflected in the record), thereby giving him the opportunity

to raise objections before foun datio n questions and ans wers suggest inadmissible matter; (c) either obtai n the court' s permission to approach the witness t o deliver the exhibi

t for hi s inspection, or, if required by court rule, ask th at a court official present the exhibit to the witn ess; (d) la y the proper foundation for the admission of the e xhibit, i ncluding proof of authenticity (in doing so, leading question s are appr opriate b ecause la yi ng a foundation is a preliminary matter); and (e) then request that the exhibit be introduced into evidence. If the request for admission is for limited purposes, this should be stated in the reques t. Lawrence A. Pivnick, Tennessee Circuit Court Practice § 24-12, at 703-04 (4th ed. 1995). The jury is entitled to review those exhib its whi ch have been admitted as evidence in the case. See State v. Ricky Dean Cole , No. 03C01-9604-CC-00171, slip op. at 5 (Tenn. Crim. App., Knoxv ille, July 29, 1997) ( inadvertent publication t o juryof exhibit m arked for identification only w as harmless error); Waits v. Dalton , No. 01-A-01-9407-CV-00317 (Tenn. A pp., Middle Section, Jan. 27, 1995) (exhibits marked for identification only w ere properly excl uded from exhibits giv en to juryfor
use in deliberations). Those prin ciples n otwithstanding, objection to introduction of evidence is waived absent a c ontemporaneous objection to its admission. Tenn. R. Evid. 103(a)(1).

We find thatthe defendant waived any ob jection to theirregularity t o7

the extent

contemporaneous objections were not interposed to th e state's motions to publish the exhibits to the jury. Further, to the exten t th e defendant offered a timelyobjection, we findthe trial court's ir regular procedure for receiving evidence fall s short of an abuse of its discreti on in such matters. See, e.g. , State v

. Stephenson , 878 S .W.2d 530, 542 (Tenn. 1994) (trial c ourt's decision regar

ding admissi bility

of evidence will not be disturbed on appeal absent an abus e of discretion).

Addition ally, we reject t h e defendant's argument that any al leged error
was so egregious as to depr ive the defendant of his right to a fair and impartial jury trial and resulted in such prejud ice to the judicial process tha t reversal is required. Any arguable error by the trial court was harmless. The defendant has made no showing that any of the exhibits w hich were published to

the jurywere inadmissible under the Rules of Evidence. As such, we find no reversi ble error in the proceedings as to this i ssue.

III

In his final issue, Kidd complains of the trial c ourt' s application of enhancement factors and failure to find certai n mitigatingfactors in sentencing him to a mid-ran ge ten year incarcera

tive term.

When a defendant challenges the sentence imposed by the trial court, this court engage s in a de n ovo review of the record with a presumption the tr ial court's determinationswere correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing pri ncipl es and all relevant facts a nd circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we mustconsider the evidence at sentencing, the presentence report, the sentencing principles, the argument s of counsel, the statements of the defendant, the nature and characteristi cs of the offense, any mitigat ing and8

enhancement fact ors, and the defen dant’s amenability to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showing the sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

The record in this case fails to demonstrate that the trial court considered the principles of sentencing as well as th e relevant facts and circumstances. Moreover, the trial court failed to p lace on the record any enhancement and mitigating factors i t fou nd, as required by the Sentencing Act. See Tenn. Code Ann. § 40-35-210(f) (1997) . It is neces sary for the t rial court to note its findings relative to these principles and factors affirmati vely on the

record in order for this court to under take meaningful review of the propr iety of the defendant's sentence. Because the court di d not do so, we conduct our r eview de
novo unaccompanied by the presumption of correctness.

Kidd stands before the court a Range I offender convicted of a Class B felony. As such, he faces a sent en ce of eight to twelve years. By his own admission, he has prior convictions for reckless driving and DUI. In addition, there is evidence of other criminal conduct by the defendant, includi ng drug use. As such, enhancement factor (1 ), "the de fendan t has a pre vi ous history of criminal convictions

or criminal behavior

in addition to those necessar y to establish the appropriate range" applies. See Tenn. Code Ann. § 40-35-114(1) ( 1997). Likewise, there is evidence "[t]he defendant has a previous history of unwillingness to comply with the condi tions ofa sentence involving rel ease into the community," his presentence report reflecti ng a probation violati on that was unchallenged a t the sentencing hearing. Factor (8) applies. See T e nn. Code Ann. § 40-35-114(8) (1997).
Turning to the mit igating fa ctors, we reject the defendant's argument he lacked substantial judg ment in committing th e offense due to his youth. See9

Tenn. Code Ann. § 40-35- 113(6) (1997). Our supreme court has noted that in passing on the propriety of this factor, "courts should c onsider the concept of youth in context, i.e., the defen dant's age, education, maturity, experience, mental capacity or development, and any other pertinent ci rcu mstance tending to demonstrate the defendant's abili ty or ina bility to appreciate the nature of his conduct." State v. Ada ms , 864 S.W.2d 31, 33 (Tenn. 1993). The defendant was 22 at the time of his crime. Though he is lacking in formal ed ucati on, having quit school in the seventh grade, there has been no showin g of any deficiency in maturit y, mental capacity or other circumstance which mi ght reflect on his abilit y to exercise "substantial judgment" and appr eciate the nature of hi s action

. Addition ally, Kidd was experience d beyond h is years with the criminal justice system. We decline to apply this factor

.

The defe nda nt also claims the court should have mitigated his
sen tence be cause he was a victi m of child abuse. Tenn. Code Ann. § 40-35
- 113(13) (1997). The evidence relating to physical abuse by the

defendant's father when he was an infant and toddler and physica l and verbal abuse by his stepfather,
as well as the defendant's appell ate argument in this reg ard, fail to convince us that this factor should beappl ied. It is noteworthy that despite the history of alleged abuse at the hands of the defendant's stepfather, his evidence at the sentencing hearing was that he would live within th e same household as the stepfather if not sentenced to incarceration. Thi s causes the court to question the ex istence, severity, or dele teri ous effects of the alleged abuse. Mor eover, there is, at best , minimal evidence that the defendant's crime is somehow related to the child abuse he allegeshe suffered. As such, we decline to mitigate his sentence based u pon this factor.

In mitigation of the offense, the trial court app ears to have re lied o n the fact that the victim and the defendant had a physically v iolentrelationship. Even if we were to accept th e defendant's evidence at face val ue as to the on- go ing5 Having received a sentence greater than eig ht years, Kidd is not entitled to consideration of a probationar y sentence. Tenn. Code Ann. § 40- 35-303(a) (1997). 10 nature of the relationship and the victim's participation in domestic violence, there is absolutely no evidenc e ten di ng to mitigate the sex ual assault the defendant perpetrated on the victim. At most, the victim may have injured the defendant by grabbing and scratching his penis during the struggle that took place on the date in question, but rape was by no means a justified response . Unlike th e trial cou rt, we decline to mitigate the defendant's sentence based upon this factor.

Bearing in mind all the matters that are to be considered, incl uding the statutory principles

of sentencing and the fact s and circu mstance s of this case, we believe the enhanc e ment factors are entitled to subs tantial weight. Cou pled with the absence of appli cable mit igating fa ctors, we b elieve Kidd justly deserv es more than a minimum sentence for his crime. Ultimately, we agree with the trial court that
a ten year sentence is appr opriate, 5 though we have departed from the trial court's rationale in reaching this conclusion.

In conclusion, we find all of Kidd 's issues lacking i n merit. The judgment of the trial court i s affirmed.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:

_______________________________ JOSEPH B. JONES, PRESIDIN G JUDGE

_______________________________ JOSEPH M. TIPTON, JUDGE