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Multiple Offenses Against a Minor Lead to a Sentence of 174 years

When a criminal defendant is convicted of multiple offenses, the trial court must determine whether each of those offenses constitute separate individual crimes. When they do, the trial court, at sentencing, must determine how to align the sentences for those individual convictions. Some circumstances require that sentences be served consecutively to each other. When not required, many circumstances may still exist under which a trial court has the discretion to impose sentences either consecutively or concurrently. In the recent case of State v. Hogg, M2012-00303-CCA-R3-CD (Tenn.Crim.App. 4-16-2013), the Tennessee Court of Criminal Appeals upheld a trial court's determination of numerous separate individual offenses and consecutive sentences leading to a total effective sentence of 174 years (132 of them to be served at 100%), arising out of a single sex encounter with a minor.

Sexual Exploitation of a Minor Conviction Affirmed

In Tennessee, the crime of sexual exploitation of a minor is committed by the knowing possession of child pornography. Generally the crime is a class D felony, which, for a standard offender, carries a range of punishment of two to four years. But if there are more than fifty images, it is a class C felony. And if there are more than one hundred images (or combination of images and materials), it is a class B felony, with a range of punishment for a standard offender of eight to twelve years. Distribution or production of child pornography are more serious offenses. In the recent case of State v. Sprunger, E2011-02579-CCA-R3-CD (Tenn.Crim.App. 4-5-2013), the Tennessee Court of Criminal Appeals affirmed the conviction and sentence of a defendant for the crime of sexual exploitation of a minor.

Alternative Sentencing Denied in Vehicular Assault Case

Alternative sentencing, which involves suspension of a jail or prison sentence and some form of community supervision as an alternative to incarceration, is available in Tennessee for most criminal sentences of ten years or less. When not imposed as part of a plea agreement approved by the trial court, the trial court must makes findings and determine whether to impose an alternative sentence or to impose a sentence of confinement. There are statutory and case law guidelines and criteria which trial courts consider in determining whether to impose an alternative sentence or confinement. For criminal convictions which are eligible for alternative sentencing, the sentencing court has the discretion to decide how the sentence is served. These decisions are subject to appeal, in which case the appellate court reviews to determine whether the lower court abused its discretion in imposing the challenged sentence. In the recent case of State v. Crowder, M2012-02396-CCA-R3-CD (Tenn.Crim.App. 4-3-2013), the Tennessee Court of Criminal Appeals affirmed the trial court decision to deny alternative sentencing and impose confinement for a defendant convicted of vehicular assault.

120 Days in Jail For First Offense DUI Upheld on Appeal

Driving Under the Influence (DUI) is a misdemeanor in Tennessee when it is the person's first conviction of that crime. However, that doesn't mean it isn't serious. It can still result in significant jail time. In the recent case of State v. Christopher, E2012-01090-CCA-R3-CD (Tenn.Crim.App. 3-14-2013), the Tennessee Court of Criminal Appeals upheld the imposition of one-hundred and twenty days of jail (followed by the balance of the eleven month and twenty-nine day sentence on probation) for a defendant's misdemeanor first offense conviction.

Coram Nobis Claim Based on Judicial Misconduct Denied

A petition for a writ of error coram nobis is a post-trial petition seeking relief from a criminal conviction based upon newly discovered evidence relating to matters litigated at trial. It is an extraordinary procedural remedy available only where there is newly discovered evidence which was not available in prior proceedings, and which may have resulted in a different outcome if it had been previously available. It is not available to review previously determined issues or previously known issues. It is not available to simply raise different legal arguments about previously known evidence. There must be actually newly discovered evidence. It must relate to matters litigated at trial. And it must have the potential to have resulted in a more favorable outcome, if it had been available previously. In the recent case of Irick v. State, E2012-01326-CCA-R3-PD (Tenn.Crim.App. 3-18-2013), the Tennessee Court of Criminal Appeals affirmed the trial court's denial of coram nobis relief when a petitioner sought relief based upon discovery of alleged judicial misconduct.

Election of Offenses Properly Made

In a criminal trial, where evidence is presented of multiple separate acts, any of which could satisfy the elements of a particular charge, the State is required to clarify for the jury which particular acts the State is relying upon to prove the necessary elements of a charge. This is called election of offenses. Its purpose is to help ensure a unanimous verdict on specific criminal conduct. Otherwise, there is potential for jurors to agree on guilt without agreeing on what facts establish the guilt. The election of offenses can be made simply within the prosecutor's closing argument, explaining which facts the State is relying upon for a particular charge. In the recent case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals determined from the appellate record that an election had properly been made.

Evidence Sufficient to Support Sexual Battery Conviction

Sufficiency of the evidence of a criminal conviction can be and often is reviewed on direct appeal of that conviction. However, the appellate court does not reevaluate what facts should have been believed or rejected by a jury. It is the function of the jury to make factual determinations from the evidence presented. An appellate court will consider the facts in a light most favorable to the jury verdict, and only review whether there were facts presented upon which the verdict could be based. In the recent Tennessee case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals reviewed the facts presented at trial to determine whether the evidence was sufficient for the Defendant's conviction of sexual battery by an authority figure. The Court ultimately concluded that it was.

Evidence in Plain View Lawfully Obtained

Evidence obtained from a warrantless search is generally not admissible against a defendant in a criminal case unless one of the exceptions to the warrant requirement applies. Among those exceptions are a search incident to arrest, a search performed with consent, exigent circumstances, a brief 'stop and frisk' supported by reasonable suspicion, and evidence in plain view. To lawfully obtain evidence in plain view, the police officer must view it from a place where the officer has a lawful right to be and the incriminating nature of the evidence must be immediately apparent. The conditions for plain view were met, according to the Court of Criminal Appeals, in the recent case of State v. McAllister, E2012-00493-CCA-R3-CD (Tenn.Crim.App. 2-7-2013).

Alibi Witness Excluded Due to Lack of Notice

A person hoping to rely upon an alibi defense in a criminal case should be aware that the state may be entitled to pre-trial notice of any witnesses the defense intends to use to establish it. This allows the state a fair opportunity to investigate the claim. Generally, an accused does not have to disclose his or her defense before trial, or disclose what witnesses will be called. But alibi is an exception, when relying upon witnesses other than the defendant to establish it. Under the Tennessee Rules of Criminal Procedure, when the state specifically requests notice of an alibi defense, a defendant is required to provide notice, or risk not being allowed to present those witnesses at trial. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), a defendant was not allowed to present an alibi witness, due to failing to provide the requested notice about the intent to use that witness.

Statutory Rape Charges Are Not Required to Allege a Specific Date

In Tennessee, aggravated statutory rape occurs when there is sexual penetration between a victim, age thirteen to seventeen, and a person more than ten years older than the victim. When proving statutory rape allegations at trial, any individual incident must be distinguished sufficiently to separate it from other alleged incidents and to establish proper jurisdiction over the defendant, as well as to meet the elements of the offense. A specific date is not necessary. Where multiple incidents are alleged, a bill of particulars filed before the trial date may be helpful in further distinguishing the specific allegations. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), appellate argument that six individual counts of aggravated statutory rape were not sufficiently distinguished by date in the indictment was weakened by the fact that no bill of particulars had been requested before trial.