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State v. Turner10/11/1999
On March 11, 1998, the appellant, Clayton Eugene Turner, II, was convicted in the Sullivan County Criminal Court of rape of a child, incest, and assault. The trial court imposed a sentence of twenty-five years in the Tennessee Department of Correction for the rape of a child conviction, a sentence of six years in the Department for the incest conviction, and a sentence of six months in the Sullivan County Jail for the assault conviction. The trial court ordered the appellant to serve the twenty-five year sentence consecutively to the six year sentence and concurrently with the six month sentence, resulting in an effective sentence of thirty-one years incarceration in the Department. On appeal, the appellant presents the following issues for our review:
1. Whether the trial court erroneously denied the appellant's motion to suppress the State's use at trial of his confession to the police.
2. Whether the trial court erroneously permitted the State to amend Count I of the presentment.
3. Whether, with respect to the appellant's conviction of assault, the trial court erroneously denied the appellant's motion for a judgment of acquittal at the Conclusion of the State's case.
4. Whether the trial court erroneously instructed the jury on the appellant's flight.
5. Whether the trial court erroneously denied the appellant's motion pursuant to Tenn. R. Evid. 412.
6. Whether the trial court imposed an excessive sentence.
7. Whether the appellant's sentence constitutes cruel and unusual punishment pursuant to the United States and Tennessee constitutions.
Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.
I. Factual Background
On September 25, 1996, a Sullivan County Grand Jury issued a presentment charging the appellant with one count of aggravated rape of his step-daughter, MK, one count of incest with MK, and one count of aggravated sexual battery of his step-daughter, RK, the offenses occurring on July 30, 1996. On July 23, 1997, the State submitted a motion to amend Count I of the presentment to reflect a charge of rape of a child. The trial court granted the motion on July 29, 1997, immediately prior to the commencement of the appellant's trial.
At trial, the State's proof established that, on July 30, 1996, MK, who was twelve years old, and her sister, RK, who was ten years old, were visiting their mother's home. At the time of the instant offenses, their mother was married to the appellant. She and the appellant lived with their two sons in a two bedroom trailer in Bristol, Tennessee. While the girls were visiting their mother, MK slept on a couch in the living room, and RK slept with her mother and the appellant in one of the bedrooms.
In the early morning hours of July 30, RK awakened to find that she had been moved from her mother's side of the bed to the appellant's side and her underwear had been pulled down to her knees. The appellant's hand was on her "belly button." RK immediately left the bed, pulled up her underwear, and went to the bathroom. She then went into the living room and lay down beside her sister on the couch.
Soon thereafter, the appellant entered the living room and told RK to return to the bedroom. RK complied and immediately fell asleep. Meanwhile, MK awakened on the couch to find the appellant lying beside her. When MK attempted to leave the couch, the appellant pulled her back down, reassuring her that "it was all right." At MK's insistence, however, the appellant agreed to allow her to go to the bathroom. After MK had been in the bathroom for some time,
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