Preview:

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs June 7, 2005 STATE OF TENNESSEE v. KEVIN SMITH
Direct Appeal from the Circuit Court for Madison County No. 04-142 Roger A. Page, Judge

No. W2004-02225-CCA-R3-CD - Filed August 29, 2005

The defendant, Kevin Smith, was convicted of two counts of spousal rape and one count of aggravated assault, both Class C felonies. After merging the aggravated assault conviction with one of the spousal rape convictions, the trial court sentenced the defendant as a Range I, standard offender to six years for each rape conviction, to be served consecutively, for an effective sentence of twelve years. The issues on appeal are whether the trial court properly concluded that the defense would open the door for the victim to testify about the defendant's prior bad acts if asked why she did not resist the assault and whether the trial court properly sentenced the defendant. Following our review, we affirm the trial court's judgments. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T. WOODALL, JJ., joined. George M. Googe, District Public Defender, and David H. Crichton, Assistant Public Defender, for the appellant, Kevin Smith. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS On August 25, 2003, the defendant, who was separated from the victim, his wife, drove her from her workplace in Jackson, threatened her with a knife and a razor, and forced her to perform two different sexual acts with him. This appeal followed his convictions for various offenses as the result of the episode.

Thomas Ross Jennings, the victim's supervisor, testified that the victim was his "best employee. . . . She's there always to work on time. I have no complaints about her performance." He said the victim was scheduled to begin work at 2 p.m. on August 25, 2003, and had not called to say that she would be late which was "very uncharacteristic for her." When the victim still had not reported for work at 4:00 p.m., Jennings "thought that something was wrong" and informed the victim's team leader, Carla Musgrave. Carla Musgrave, the human resource manager at the victim's place of employment, testified that when the victim did not report for work, she had the operator call the victim's home but did not get an answer. Because it was unusual for the victim not to call if she was going to be late, Musgrave and other employees informed their asset protection team leader, who reviewed the parking lot security videotapes and saw "that there was a possible abduction." Musgrave then called 9-1-1, and two police officers responded to the scene. While Musgrave was giving her statement to the officers, she saw the victim and the defendant pull into the parking lot in the victim's vehicle. The police took the defendant into custody, and Musgrave observed that the victim was "very startled and just in a daze." Musgrave said she knew the defendant because they had gone to school together and knew that he and the victim were married. In her testimony, the victim recounted that she and the defendant had tried to reconcile in the spring of 2003, which entailed living together and engaging in sexual intercourse, but were separated at the time of the incident. She said she arrived at her workplace at about 1:40 p.m. on August 25, 2003, and was sitting in her vehicle with the window down when the defendant approached and asked about their children. The defendant told her to "[s]coot over" to the passenger seat and, when she refused, he "physically moved [her] over." The defendant then drove her vehicle to a deserted parking lot and began asking questions about her boyfriend. She said she told the defendant that she had to be at work and that "[h]e knew it." The defendant, "upset" and "angry," asked her to get in the backseat and, when she refused, put a silver-handled knife against her arm and forced her to do so. He placed the knife against her chest to get her to remove her pants. She said the defendant then lowered his pants, put on a condom, penetrated her vagina, removed the condom, penetrated her again, put the condom back on, and penetrated her once again. At some point, the victim saw the condom on the console of her vehicle, but she did not know when the defendant had taken it off because she had closed her eyes. She said the defendant was not wearing the condom when he ejaculated inside her. The victim said she was allowed to get in the driver's seat after the rape and the defendant moved to the passenger's seat and suggested they get back together, which she rejected since "[she] was involved and very much in love with someone else." After telling her if she divorced him and married her boyfriend, he would kill her boyfriend, the defendant retrieved a long razor from his wallet, asked her if she had "ever been cut with a razor," and directed her to get in the backseat again "or else he would cut [her]." The victim complied, and the defendant also moved to the backseat where he "told [her] to suck him" and "if [she] lifted [her] head that he would cut the back of [her] neck." She said the defendant forced her to perform oral sex on him and then ejaculated on a blue -2-

towel. Afterwards, they moved back to the front seat and the defendant allowed her to drive back to her workplace where the defendant was arrested while she gave her report to the police. She then went to a hospital where a rape kit was collected. Officer Danielle Jones of the Jackson Police Department testified that she was dispatched to the victim's workplace at approximately 4:45 p.m. and, while taking statements from the victim's coworkers, observed the victim and the defendant drive up in the victim's vehicle. The defendant was taken into custody for kidnapping and rape and, when searched, was found to possess "a knife, a razor blade, and a used condom." Investigator Tyreece Miller of the Jackson Police Department testified that he responded to the scene, where he collected a blue towel from the victim's vehicle. Later that evening, he interviewed the defendant who said the victim had consented to having sex with him. The defendant told Miller that the razor blade fell out of his wallet when he opened it to give the victim some money and that the knife came out of his pocket when he was searching for money. Miller testified the defendant gave an additional statement the next day, saying he pulled the knife out after he and the victim had sex the second time and that he had pointed the knife at the victim and threatened to kill her boyfriend. The defendant's only witness was Janice Tanner, the nurse who performed the rape kit on the victim. She said the victim was "calm" and had no physical injuries consistent with rape but acknowledged that not all rape victims are distraught when the kit is being performed or have physical injuries. ANALYSIS I. Prior Bad Acts The defendant argues the trial court erred when it ruled that the defense would "open the door" for the State to introduce evidence of previous incidents of violence by the defendant against the victim by asking her if she struggled during the rapes. Generally, evidence of prior criminal conduct is inadmissible, absent certain well-defined exceptions, as our supreme court explained in State v. Rickman, 876 S.W.2d 824 (Tenn. 1994): The general rule excluding evidence of other crimes is based on the recognition that such evidence easily results in a jury improperly convicting a defendant for his or her bad character or apparent propensity or disposition to commit a crime regardless of the strength of the evidence concerning the offense on trial. Such a potential particularity exists when the conduct or acts are similar to the crimes on trial.

-3-

Id. at 828 (citations omitted); see also State v. Rounsaville, 701 S.W.2d 817, 820-21 (Tenn. 1985); State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). The exceptions to this rule of exclusion require that the probative value of such evidence outweigh the danger of its prejudicial effect. Accordingly, evidence of prior criminal activity may be used to demonstrate identity, intent, motive or a common scheme or plan, opportunity, or rebuttal of mistake or accident, as opposed to showing the defendant's likelihood to commit the charged act. Tenn. R. Evid. 404(b); State v. Drinkard, 909 S.W.2d 13, 16 (Tenn. Crim. App. 1995). In order to determine the admissibility of such evidence, compliance with the procedures provided in Rule 404(b) is mandatory. Without the trial court conducting the required analysis on the record, particularly regarding the existence of a material issue and the probative value of the evidence outweighing the danger of unfair prejudice, we cannot properly review its admissibility as an exception to the rule of exclusion. State v. West, 844 S.W.2d 144, 150 (Tenn. 1992). When the trial court has substantially complied with the requirements of Rule 404(b), this court reviews its decision to admit or exclude evidence under an abuse of discretion standard. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). We first will set out the "opening the door" discussion as it occurred at trial. During a sidebar conference, defense counsel informed the court of his intent to question the victim as to why there was no physical struggle: THE COURT: What are you trying to get into? [DEFENSE COUNSEL]: Well, the fact that there was no struggle, physical struggle during this time. [THE STATE]: What he said in opening. [DEFENSE COUNSEL]: Right. And the fact that she did not attempt to

Download SmithKeOPN.pdf

Tennessee Law