                                                                                                            05/23/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   February 22, 2017 Session

               STATE OF TENNESSEE v. MICHAEL C. BOLDEN

                  Appeal from the Criminal Court for Morgan County
                      No. 2013-CR-13    E. Eugene Eblen, Judge


                                 No. E2016-01266-CCA-R3-CD


The defendant, Michael C. Bolden, appeals his Morgan County Criminal Court jury
conviction of aggravated rape of a child, claiming that the evidence was insufficient to
support his conviction and that the trial court erred by failing to instruct the jury on rape
of a child as a lesser included offense. We affirm the conviction and sentence but remand
for correction of a clerical error in the judgment.

     Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

C. Brad Neff, Jamestown, Tennessee, for the appellant, Michael C. Bolden.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Russell Johnson, District Attorney General; and Alyson Kennedy and
Robert Edwards, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                              OPINION

            In January 2013, the Morgan County Grand Jury charged the defendant
with one count of aggravated rape of a child. The trial court conducted a jury trial in
June 2015.

            The State’s proof at trial showed that the victim, C.H.,1 resided in Morgan
County with his mother, A.H.,2 in September 2012. A.H. testified that the victim was

1
       It is the policy of this court to refer to minors by initials.
2
       To protect the anonymity of the minor victim, we will refer to his mother by her initials as well.
born on December 17, 2009, and that he was three months shy of his third birthday on
September 10, 2012.

              A few days prior to September 10, the victim was accidentally run over by
a vehicle in a library parking lot but fortunately sustained only minor injuries. On
September 10, the defendant paid a visit to A.H.’s residence to “check on” the victim’s
well-being. The defendant sat on the floor of the living room and helped the victim play
with some toy trucks. After a few minutes, the victim decided to play in his bedroom,
and the defendant asked A.H. if he could assist the victim in carrying the toys to the
victim’s bedroom; A.H. acquiesced and followed them. While A.H. was standing outside
of the victim’s bedroom, her husband requested her assistance in locating an item, and
A.H. walked away “for maybe a minute, minute and a half.” When she returned to the
victim’s bedroom, she saw the defendant “sticking his [penis] in my kid[’]s mouth.”
A.H. stated that the defendant had one of his hands on the victim’s head and that he was
using his other hand to hold his penis.

               A.H. testified that she immediately “started screaming,” and the defendant
replied that he “wasn’t doing nothing,” although A.H. could “clearly see his pants were
unbuttoned.” A.H.’s husband “had to force [the defendant] out of the whole house,” and
the defendant was “screaming I’m sorry, I’m sorry, I didn’t mean to.” When police
officers arrived at the house, the defendant continued “screaming I’m not right in the
head, I didn’t mean to, I wasn’t right, I didn’t mean to do it.”

               A.H. admitted that she had been previously convicted of attempted forgery,
misdemeanor theft, misdemeanor criminal impersonation, and possession of less than half
a gram of methamphetamine and that she was currently serving a jail sentence in
Cumberland County. A.H. clarified that all of her criminal convictions had occurred after
the rape of the victim.

              On cross-examination, A.H. stated that, when she reentered the victim’s
bedroom, the defendant was on his knees, and A.H. was adamant that she saw the
defendant’s penis inside the victim’s mouth. A.H. denied using any drugs on September
10, 2012, and testified that she did not begin using methamphetamine until after the
victim’s rape. A.H. denied that the victim had a history of grabbing men in the crotch.
A.H. confirmed that she had contacted Mark and Linda Peterson shortly after the rape
occurred, explaining that she had met the defendant through the Petersons and that she
wanted to inform them of what had transpired because the defendant “would slip off into
the bedroom” with the Petersons’ children on prior occasions.

             Morgan County Sheriff’s Department (“MCSD”) Chief Deputy Steve
Cochran testified that he interviewed the defendant on September 12, 2012. Chief
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Cochran provided the defendant with his Miranda warnings, and the defendant signed a
waiver of his rights and agreed to speak with Chief Cochran. At that time, the defendant
admitted that he had placed his penis in the victim’s mouth. Chief Cochran asked the
defendant “what made [him] excited . . . about the child,” and the defendant replied that
“he was excited and turned on by” seeing the victim “in his diaper.” The defendant
denied that he had committed any other sexual assaults or that “little boys turned him on”
prior to his assault of the victim. Following the interview, Chief Cochran asked the
defendant to give a handwritten statement, and the defendant complied, writing that he
“went to his bedroom to play with him then after [I] played with him [I] stuck my penis
in his mouth.”

              On cross-examination, Chief Cochran admitted that no video or audio
recording of his interview with the defendant existed. Chief Cochran acknowledged that
he did not inquire about the defendant’s educational background but stated that he had
read the Miranda warnings aloud to the defendant “just in case” the defendant was unable
to read. Chief Cochran conceded that the defendant had not signed his handwritten
statement, which was on the back side of the rights waiver form which he had signed.

              On redirect examination, Chief Cochran stated that he had given
“hundreds” of interviews and Miranda warnings throughout his career in law
enforcement and that he was able to discern when an interviewee understands the
questions being asked of him. Chief Cochran had “no question” about the defendant’s
ability to understand his rights.

              Kingston Police Department Officer Brian Luttrell testified that in
September 2012 he was employed as an MCSD corrections officer. Officer Luttrell was
present during Chief Cochran’s interview of the defendant, and he described the
defendant’s statements as follows:

                    He stated that the little boy had been in an accident,
             was injured and had just got home from the hospital. He went
             over to see him. He went into the back room and was playing
             with him, I think with some toy cars. And they were back
             there by their self [sic]. He stated that the little boy being
             injured and he was wearing a t-shirt and a diaper and that, in
             some way, aroused him. Then he forced himself into the little
             boy’s mouth.

                    ....

                    He forced his penis into the little boy’s mouth.
                                           -3-
Officer Luttrell testified that he witnessed the defendant’s signing of the rights waiver
form and that he was present when the defendant handwrote his statement.

              With this evidence, the State rested. The defendant then elected to testify
and to present proof.

              Kathy Bolden, the defendant’s mother, testified that the defendant suffered
from a learning disability, explaining that he “had to have special learning all the way
through school” and had received “a special learning diploma.” Ms. Bolden elaborated,
explaining that “[y]ou have to keep telling him in detail what you want him to do” and
that, in school, he struggled with “comprehension and speech.” Ms. Bolden testified that
the defendant disliked conflict and violence and that she was unaware of any prior history
of sexual assault on the defendant’s part.

               Rob Wall, Ms. Bolden’s boyfriend, described himself as a pseudo-
stepfather to the defendant. Mr. Wall testified that the defendant was “a little slow” and
“doesn’t comprehend things” quickly. On cross-examination, both Mr. Wall and Ms.
Bolden testified that the defendant knew the difference between right and wrong.

               Steven Bolden, the defendant’s younger brother, testified that the defendant
was “a little autistic” and had “a short fuse” with respect to conflict. Mr. Bolden recalled
one occasion on which the victim had “grabbed” him by “his privates.”

              Linda Peterson testified that she had become acquainted with the defendant
when Steven Bolden began dating Ms. Peterson’s roommate. Ms. Peterson stated that
she did not know the defendant “that well,” explaining that he had visited her house on
prior occasions and that he had played with her children. Ms. Peterson explained that the
victim was a year younger than her youngest child and stated that the victim “couldn’t
talk” and would “hit” people to get what he wanted. Ms. Peterson testified that she had
observed the victim strike people in the crotch on prior occasions.

               With respect to the victim’s rape, Ms. Peterson recalled that A.H. had
called her on September 10 to inform her that the defendant “had molested” the victim.
According to Ms. Peterson, A.H. was hysterical and told her that she had seen the victim
“right at [the defendant’s] crotch area.” Ms. Peterson stated that, after the rape, A.H. was
inconsistent in her description of the assault:

                      One time he’s on his knees. The next time he was
              standing up. It didn’t happen, it did happen. She never could
              tell the same story.
                                            -4-
               The defendant testified and categorically denied engaging in any sexual
contact with the victim. According to the defendant, he had been at the local library on
September 10, 2012, conducting research on a “truck driving job” when he noticed A.H.
at the library. As he was walking home, it occurred to him that he should speak with
A.H.’s husband about a job, so he walked to A.H.’s residence. Upon his arrival, he
encountered A.H. standing by her mailbox. She told him about the victim’s recent
accident and asked the defendant if he would like to see the victim. The defendant said
that he would, explaining to the jury that he “used that excuse to ask [A.H.’s husband]
about” a job.

              Once inside, the defendant sat in the living room and chatted with A.H.
while the victim played in the floor and A.H.’s husband sat nearby. Because A.H.’s
husband “never spoke” to the defendant, the defendant became uncomfortable and asked
A.H. if he “could go check on the little boy’s toys.” A.H. responded in the affirmative,
and the defendant proceeded to the victim’s bedroom. While the victim was playing on
the floor with his toys, the defendant’s cellular telephone “vibrated,” and the defendant
removed the telephone from his pocket. Upon spotting the telephone, the victim
advanced toward the defendant and attempted to grab the telephone but missed and struck
the defendant in the area of his crotch. The defendant moved the victim’s hand away and
instructed him not to do that again. The victim then sat down in the floor, resumed
playing, and pointed to the upper area of the closet where the victim’s trucks were
located. When the defendant was attempting to retrieve the trucks, A.H. appeared. She
removed the victim from the bedroom, and her husband “escorted” the defendant from
the house. A.H. then walked outside while speaking on her cellular telephone, stating
that the defendant was “down here trying to put his [penis] in [the victim’s] mouth.”

              When the defendant arrived at the jail, officers forced him “to strip down in
front of a bunch of people” and informed him that he was being charged with aggravated
rape of a child; he testified that he did not know what “aggravated” meant at that time.
The defendant claimed that Officer Luttrell “harass[ed him] verbally” throughout the
night. When Officer Luttrell brought him to Chief Cochran’s office, Chief Cochran read
the Miranda rights to the defendant and asked him if he understood his rights. The
defendant testified that he did not respond because he was “so scared.” He stated that he
wrote the statement for the officers “out of fear, not guilt,” believing that the officers
“would leave [him] alone.” The defendant testified that he merely wrote a statement of
what he was being accused of rather than what had actually transpired.

             Chief Cochran testified on rebuttal for the State and denied telling the
defendant what to write in his statement. Chief Cochran stated that the defendant never
denied assaulting the victim and that the defendant even volunteered the detail about the
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victim’s diaper causing him to be aroused. With respect to the defendant’s claim that
Officer Luttrell had verbally harassed him, Chief Cochran explained that Officer Luttrell
could not have worked an overnight shift at the jail and then been present the following
morning to assist in the the defendant’s interview.

              Based on this evidence, the jury convicted the defendant as charged of one
count of aggravated rape of a child. Following a sentencing hearing, the trial court
sentenced the defendant as a deemed Range III offender to a term of 40 years’
incarceration to be served at 100 percent by operation of law.

               Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the evidence is
insufficient to support his conviction and that the trial court erred by failing to instruct the
jury on rape of a child as a lesser included offense. We will address each issue in turn.

                                        I. Sufficiency

              The defendant first contends that the evidence is insufficient to support his
conviction of aggravated rape of a child. We disagree.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              As charged in this case, “[a]ggravated rape of a child is the unlawful sexual
penetration of a victim by the defendant or the defendant by a victim if the victim is three
(3) years of age or less.” T.C.A. § 39-13-531(a). “Sexual penetration” is defined as
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“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal
openings of the victim’s, the defendant’s, or any other person’s body, but emission of
semen is not required.” Id. § 39-13-501(7).

              In the instant case, the proof at trial established that the defendant inserted
his penis into the two-year-old victim’s mouth. A.H. testified that she witnessed this
assault, and the defendant admitted to Chief Cochran and Officer Luttrell that he had
become “aroused” by the sight of the toddler in a diaper, resulting in his placing his penis
inside the victim’s mouth. Although the defendant denied the rape and claimed that he
was “intimidated” into confessing to the crime, such matters of witness credibility and
evidentiary weight are within the exclusive province of the trier of fact, and this court
will not reweigh such evidence. See Dorantes, 331 S.W.3d at 379.

               The defendant primarily takes issue with the evidence of the victim’s age,
claiming that “there was minimal and somewhat conflicting evidence of the age of the
child at the time of the incident.” To the contrary, the victim’s mother, A.H., testified
that the victim was born on December 17, 2009; thus, the victim was one week shy of
two years and nine months when the rape occurred on September 10, 2012. Furthermore,
a review of the trial transcript reveals that A.H. referenced the victim’s being two years
of age no less than nine times during the course of her testimony.

              Viewing this evidence in the light most favorable to the prosecution, we
find that the evidence adduced at trial overwhelmingly supports the defendant’s
conviction of aggravated rape of a child.

                                     II. Jury Instruction

               The defendant contends that the trial court erred by failing to instruct the
jury “on the lesser included offense of Rape of a Child.” Again, we disagree.

              Nothing in the record suggests that the defendant contemporaneously
objected to the trial court’s failure to include an instruction on rape of a child, and thus,
he has waived our consideration of this issue. A defendant complaining of the omission
of an instruction must make a special request that the instruction be given or otherwise
object to the omission. See Tenn. R. Crim. P. 30(a), (b); State v. Cravens, 764 S.W.2d
754, 757-78 (Tenn. 1989); State v. Haynes, 720 S.W.2d 76, 84-85 (Tenn. Crim. App.
1986); Bolton v. State, 591 S.W.2d 446, 448 (Tenn. Crim. App. 1979). In addition,
neither a transcript of the trial court’s charge to the jury nor the written jury instructions
are included in the record. The appellant bears the burden of preparing an adequate
record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes
                                             -7-
the duty to “have prepared a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal,” Tenn. R. App. P. 24(b). If the appellant fails
to prepare an adequate record, this court must presume the trial court’s ruling was correct.
See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).

                Furthermore, the scant reference to jury instructions in the trial transcript
reveals that both the State and the defense agreed on the pertinent instructions to be
given. Just prior to the return of the jury to the courtroom and the reading of the verdict,
the trial court made the following announcement:

                     All right, for the record we had a chambers meeting
              going over the jury instructions for this case and determined
              that with both sides that the proper charge would be the
              Aggravated Rape Of A Child, and as a lesser included
              Aggravated Sexual Battery. And that that would complete
              the part on the charge.

              In any event, an instruction on rape of a child would have been improper in
this case because rape of a child is not a lesser included offense of aggravated rape of a
child. An offense is considered a lesser included offense if it contains all of the statutory
elements of the offense charged, if it involves the facilitation, attempt, or solicitation of
the offense charged, or if it is specifically designated as a lesser included offense by
statute. T.C.A. § 40-18-110(f). In addition, an offense is lesser included if it differs from
the charged offense only in that it requires a less culpable mental state or requires a less
serious harm or risk of harm to the same victim. See State v. Howard, 504 S.W.3d 260,
268-75 (Tenn. 2016) (citing State v. Burns, 6 S.W.3d 453 (Tenn. 1999)).

               Here, the defendant was convicted of aggravated rape of a child, which is
defined as “the unlawful sexual penetration of a victim by the defendant or the defendant
by a victim, if the victim is three (3) years of age or less.” T.C.A. § 39-13-531(a). Rape
of a child is defined as “the unlawful sexual penetration of a victim by the defendant or
the defendant by the victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.” T.C.A. § 39-13-522(a).

              Clearly, rape of a child is not a lesser included offense of aggravated rape
of a child. The latter offense requires that the victim be three years of age or less; the
former requires that the victim be over the age of three but less than the age of 13.
Because these two statutes each require a different element, i.e., a victim of a different
age, rape of a child cannot be a lesser included offense of aggravated rape of a child. See
T.C.A. § 40-18-110(f)(1). Certainly, the instant offense does not involve facilitation,
                                            -8-
attempt, or solicitation nor has it been specifically designated by statute as a lesser
included offense. See id., § 40-18-110(f)(2)-(4); (g)(1)-(4). Finally, a differing mental
state or lesser risk of harm is not applicable in the instant case. See Howard, 504 S.W.3d
at 268.

               Accordingly, no error attends the trial court’s failure to charge the jury as to
rape of a child.

                              III. Correction of Clerical Error

              Although not raised by either party, we detect an error that requires
correction in the judgment. Based on the transcript of the sentencing hearing, the
defendant had no prior criminal history, and the prosecutor announced to the trial court
that the defendant was a “range one, standard offender.” The court and the parties all
agreed that, by statute, the defendant must be sentenced as a Range III offender. See
T.C.A. § 39-13-531(b) (“Aggravated rape of a child is a Class A felony and shall be
sentenced within Range III, as set forth in title 40, chapter 35.”).

               On the judgment form, however, the trial court checked the box for
“Multiple” in the offender status section, although the court correctly checked the box for
“Child Rapist 100%” in the release eligibility section. Without question, the defendant is
not a multiple offender, and although the defendant is considered a Range III offender by
statute due to the severity of the conviction, he is not a persistent offender. See T.C.A. §
40-35-107(a). We believe the trial court was attempting to communicate that the
defendant was a Range III offender, and simply erroneously checked the box for
“Multiple” rather than “Persistent” in the offender status section. However, no section on
the judgment form merely indicates a defendant’s sentencing range. On remand, the trial
court should amend the judgment to remove the multiple-offender designation and
replace it with an asterisk to direct the reader to the special conditions box. In that box,
the trial court should indicate that the defendant is deemed a Range III offender pursuant
to the terms of T.C.A. § 39-15-531(b).

             Accordingly, on remand, the trial court shall enter an amended judgment to
remove the designation of offender status as “Multiple.”

                                         Conclusion

              Based upon the foregoing analysis, the judgment of the trial court is
affirmed.



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          _________________________________
         JAMES CURWOOD WITT, JR., JUDGE




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