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Posted by: Tanja Trezise on Jul 12, 2012

Court: TN Court of Criminal Appeals

Attorneys 1:

B. Jeffery Harmon, District Public Defender, and Philip A. Condra, Assistant Public Defender, for the appellant, Robert Fann, Jr.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

After a trial by jury, the defendant was found guilty of rape, a Class B felony, and incest, a Class C felony. He was sentenced to a total effective sentence of ten years. On appeal, the defendant raises numerous challenges to his convictions and sentences. The defendant claims that the evidence is insufficient to support his convictions. However, his argument is based on alleged inconsistencies in the evidence, and conflicts in the evidence provide no basis for reversing a defendant’s convictions. The defendant claims that the trial court erred by admitting the testimony of a police officer concerning statements that the defendant made to his wife in the officer’s presence because these statements were protected by the martial privilege. However, we conclude that the statements were not privileged because the defendant had no reasonable expectation that they would remain confidential. The defendant claims that these same statements should also have been excluded because the officer did not give the defendant his Miranda warnings. However, this claim must fail because the defendant was neither in custody nor being interrogated by the police at the time the statements were made. The defendant claims that the trial court erred by admitting an exhibit containing a nurse’s handwritten notes repeating certain statements made by the victim concerning the cause of her injuries, because these statements were inadmissible under the hearsay rule. However, the trial court properly admitted the statements under the excited utterance exception to that rule. The defendant claims that the trial court erred by giving a pattern rape instruction that included references to “fellatio” and “cunnilingus” because there was no evidence presented at trial establishing that the defendant had committed either act. However, we conclude that the instruction at issue fully and accurately stated the law. The defendant argues that the trial court improperly admitted certain exhibits because no chain of custody had been established, but this argument has been waived. The defendant challenges his ten-year effective sentence as excessive, but after thorough review we can discern no error in the defendant’s sentencing. Finally, the defendant claims that the 2005 Sentencing Act is unconstitutional under Blakely v. Washington, 542 U.S. 296, 302 (2005), but we conclude that binding precedent firmly establishes that the 2005 Sentencing Act complies with Blakely. Consequently, we affirm the judgments of the trial court.