Elkins nude girls

Added: Markus Conlan - Date: 02.11.2021 11:38 - Views: 27042 - Clicks: 1909

The dispositive issue in this appeal is whether the trial court erred in failing to instruct the jury on the lesser-included offense of child abuse. The Court of Criminal Appeals held that no instruction on child abuse was necessary because the jury was instructed as to Class B misdemeanor assault, an alternative lesser-included offense.

We conclude that child abuse is not an alternative lesser-included offense, that the jury should have been instructed as to child abuse, and that the erroneous failure to instruct on this offense is not harmless beyond a reasonable doubt. Accordingly, the defendant's conviction of aggravated sexual battery is reversed, and the case is remanded for a new trial. The girls had been friends since early childhood, and Linda had invited AJ to come to Tennessee with her for the visit.

For about a week and a half after they arrived, the children stayed in the defendant's apartment in Pulaski. Thereafter, the defendant moved to a trailer on Clear Creek Road. During the first two weeks of the visit, the defendant would often touch AJ's leg or lean close to her. He also tried to fondle her on more than one occasion, but she moved away from him. At other times, the defendant, saying he needed to do something in the bathroom, would come into the bathroom while AJ was bathing.

Because there was no shower curtain, AJ could not conceal her nude body from the defendant's view. The defendant also allowed AJ and Linda to drink alcohol and to drive his vehicle, so long as they sat on his lap while doing so. Although the girls initially slept in the same room, the defendant later separated them, explaining that they had misbehaved.

Thereafter, AJ slept on a mattress on the floor in Jacob's bedroom. Linda slept in her father's bedroom, and the defendant and Jacob slept on a sofa bed in the living room. On July 11, between midnight and two a. AJ said she sustained bruises to her arms, legs, and chest as a result of the attack. AJ admitted that she did not immediately tell anyone about the incident. She explained that she tried to forget the entire episode. AJ said that she did not tell Linda because she did not want to hurt her and because she did not think Linda would believe her.

During cross-examination, AJ testified that she and Linda argued but never hit each other and that she had no bruises on her body prior to the attack. AJ admitted that she knew the defendant's ex-wife, who occasionally stopped by her home in Michigan.

AJ denied testifying in Michigan in a custody battle between the defendant and his ex-wife, but stated that she went to court to care for Jacob during the hearings. AJ acknowledged that she did not tell anyone in Tennessee or Michigan about the incident until March of Anna Whary, the defendant's friend, lived near him and allowed the defendant and the children to use her telephone because the defendant did not have a telephone. Whary testified that on one occasion, about two weeks before AJ went home on July 27,the defendant and AJ stopped by to use her telephone.

Whary noticed AJ was visibly upset, so she sent the defendant out for groceries so she could talk to AJ alone. AJ showed Whary bruises on her arms, the inside of her knees, and her chest, but she would not tell Whary what caused the bruising. Whary believed that AJ cried because she was homesick. AJ pulled the shower curtain across her body, but Dennis could see yellowing bruises across AJ's chest and asked about the cause of the bruising. Dennis contacted Linda's mother and told her that she intended to have the defendant arrested for hitting AJ if he showed up in Michigan.

Elkins nude girls

Dennis admitted she was aware that the defendant was in a custody battle with Jacob's mother and that AJ attended one of the custody hearings. Thereafter, AJ traveled to Tennessee, spoke to Chapman, and he tried twice to convince AJ to call the defendant and elicit a confession from him. AJ refused, saying she did not want to speak to the defendant, be in the same room with him, or hear his name spoken. Thereafter, Chapman spoke to the defendant about the incident. The defendant denied the allegations and indicated that the entire incident was contrived to assist his ex-wife in the custody battle over their son.

The defendant indicated that the ongoing custody battle caused him to be concerned when Linda asked to bring a friend along for her summer visit, and he had allowed AJ to accompany Linda only after Linda assured him that she would not leave him alone with AJ. Several witnesses testified for the defense. Melody Pritchard had known the defendant for several years and had lived in an apartment next door to the defendant in Pulaski. Pritchard said she did not notice AJ being unhappy, but often saw the girls wrestling in the yard.

Penny Kimmell and her brother Allan Hogue had known the defendant for several years and had seen AJ several times during her visit to Tennessee. They also never noticed AJ being upset or unhappy that summer but often saw the girls wrestling and engaging in horse play. The defendant's daughter, Linda Elkins, also testified on his behalf.

Elkins nude girls

Linda and AJ had been best friends since kindergarten. Linda testified that her father did not talk to them about sex, or furnish the children alcohol, or insist that they sunbathe nude. Linda said that her father never hit AJ and that AJ did not complain about the way the defendant was treating her.

Linda said that she and AJ would often strike each other while they wrestled and played outside, and she recalled hitting AJ on the leg on one occasion. Linda insisted that she and AJ always slept together in a bedroom, while Linda's father slept on the sofa. Linda admitted that she had told Investigator Chapman that she would not do anything to hurt her father. Although the defendant admitted he told Linda not to talk to Michigan authorities, Linda insisted that he had not done so.

Linda also denied that the defendant told her AJ could accompany her only if Linda agreed not to leave the defendant alone with AJ. The defendant claimed to have made this statement. At the close of the proof, the trial court, pursuant to defense counsel's request, instructed the jury on the charged offense of rape of and the lesser-included offenses of aggravated sexual battery and Class B misdemeanor assault. Defense counsel did not request and the trial court did not instruct the jury on child abuse. Following deliberations, the jury acquitted the defendant of the charged offense of rape of and found him guilty of the lesser-included offense of aggravated sexual battery.

Following a sentencing hearing, the trial court imposed the maximum Range I sentence of twelve years. On appeal to the Court of Criminal Appeals, the defendant asserted that his conviction should be reversed because the trial court failed to instruct the jury on the lesser-included offense of child abuse. The defendant also asserted that the trial court erred at sentencing by allowing the victim to testify when she had remained in the courtroom during the State's proof even though the defense invoked the rule of sequestration, Tenn.

The Court of Criminal Appeals rejected these arguments and affirmed the judgment of the trial court. Thereafter, we granted the defendant's application for permission to appeal and now reverse the judgment of the Court of Criminal Appeals and remand this case for a new trial.

In this Court, Elkins again asserts that the trial court erred in failing to instruct the jury on the lesser-included offense of child abuse. Elkins relies upon Tenn. Code Ann. The State does not argue that child abuse is not a lesser-included offense of rape of.

Instead the State argues that the defendant was not entitled to an instruction on both assault and child abuse because the second sentence of Tenn. In State v. Burns, 6 S. In addition to the lesser-included offense test outlined above, of course, an offense can also be lesser-included if it is so deated by the legislature.

See State v. Rush, 50 S. In considering whether an instruction on a lesser-included offense is warranted, trial courts must. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence.

Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser-included offense. A trial court must provide an instruction on a lesser-included offense supported by the evidence even if such an instruction is not consistent with the theory of the defense or the State, since the evidence, not the theories of the parties, controls whether an instruction is required.

State v.

Elkins nude girls

Allen, 69 S. In this case, there is no question that the trial court properly instructed the jury as to Class B misdemeanor assault. This Court has ly held that Class B misdemeanor assault is a lesser-included offense of aggravated sexual battery. Swindle, 30 S.

The determinative issue, therefore, is whether the trial court also was required to instruct the jury as to the lesser-included offense of child abuse. A violation of this section may be a lesser-included offense of any kind of homicide, statutory assault, or sexual offense if the victim is and the evidence supports a charge under this section. Moreover, viewing the evidence presented at trial liberally in the light most favorable to the existence of the lesser-included offense, without making any judgments on the credibility of such evidence, we conclude that an instruction on child abuse was warranted in this case because the evidence, viewed in this light, is legally sufficient to support a conviction of child abuse.

AJ testified that the defendant held her down, that she attempted to fight him off, and that she sustained bruises on her body as a result of the defendant's conduct. Two other witnesses testified to seeing the bruises. Certainly, this evidence is legally sufficient to support a conviction of child abuse, which requires only proof that a person knowingly, other than by accidental means, treats under eighteen in such a manner as to inflict injury.

Accordingly, we conclude that the trial court erred in failing to instruct the jury as to child abuse. In so holding, we reject the State's assertion that the second sentence of subsection dwhich provides that conduct may be prosecuted as child abuse or as assault, obviates the need for an instruction on child abuse since the jury was instructed as to Class B misdemeanor assault. While the statute clearly provides that a defendant may be charged with either assault or child abuse, the statute does not provide that a trial court need only instruct on assault or child abuse.

Moreover, this reading of the statute is difficult to justify given that child abuse is a Class A misdemeanor and assault, as charged in this case, is a Class B misdemeanor. Since the offenses do not subject the defendant to the same punishment, the State's argument that they are alternative lesser-included offenses is not convincing.

Also militating against this argument is the fact that the elements of the offenses are not merely alternative methods of proscribing and punishing the same conduct. Class A misdemeanor child abuse requires proof that the defendant's knowing conduct inflicted injury upon a minor, while Class B misdemeanor assault requires proof that a defendant intentionally or knowingly caused extremely offensive or provocative physical contact with another person.

Elkins nude girls

Class B misdemeanor assault does not require proof of an injury or proof that the person is a minor. For all these reasons, we find the State's argument that the defendant was not entitled to instructions on both child abuse and assault unpersuasive and hold that the trial court erred in failing to instruct the jury as to the lesser-included offense of child abuse. Having so concluded, we must next determine if the error requires reversal or if it was harmless beyond a reasonable doubt. Ely, 48 S. The error ordinarily will be considered harmless when the jury, by finding the defendant guilty of the charged offense necessarily rejects all other lesser-included offenses.

Elkins nude girls

email: [email protected] - phone:(342) 135-1379 x 6431

female sex pics in Elkins West Virginia-nude nudes-women looking for affairs