Appellate panel hears challenge to sufficiency of evidence and prosecutor—s language in Simons appeal

An appellate panel in Tennessee heard oral arguments on the appeal of Mr. Simons—s conviction for attempted aggravated sexual assault, focusing on whether the state proved the defendant had a specific intent to commit sexual penetration and whether the prosecutor—s closing remarks were improper.

The question before the court was twofold: defense counsel argued the record is too thin to show a —substantial step— toward the charged sexual offense and therefore the conviction must be reversed; the state countered that the defendant—s words and corroborating physical acts supported both intent and a substantial step, and that the prosecutor—s use of the word —evil— in closing was brief and not reversible error.

Defense counsel (identified in the transcript as Mr. Bridal) told the panel that the proof is —remarkably thin,— noting the trial record consisted primarily of the victim—s testimony and limited corroboration from her son and a responding officer. Counsel argued the victim—s subjective fear that —he was going to [sexually assault] me—, and her statements that the defendant said —this is gonna happen,— do not supply the specific intent element needed for attempted aggravated sexual assault. Counsel cited appellate precedents (identified in argument as Fowler/Follard and Bullard) to argue that those cases found substantial steps where the defendant—s actions went beyond the victim—s subjective fear (for example, procuring a participant or disrobing himself), whereas here the record lacks comparable affirmative acts by the defendant.

Garrett Ward, arguing for the State, told the panel the evidence viewed in the light most favorable to the verdict supports both intent and a substantial step. Ward recounted the record—s core accounts: the defendant—s words to the victim, the presence of a knife, the instruction to disrobe and lie down, the victim—s description of attempts to bind her hands with what she described as —zip tie— style devices, a struggle in which the defendant allegedly applied force (including smothering with a blanket or pillow), the victim—s 911 call, and corroborating testimony from her son and a responding officer. Ward quoted the record as containing the defendant—s alleged statements: —This is going to happen, Rachel. I have a knife. This is happening.— He argued those words, taken with the physical acts, were sufficient for a reasonable juror to find specific intent and multiple substantial steps toward the charged offense.

Defense counsel also raised a second argument about the prosecutor—s closing. Counsel quoted the prosecutor—s opening of the state—s closing: —None of us know the evil that some men possess in their heart.— He urged the court to view that language in light of Cawthorn, a Tennessee Supreme Court decision cited in the briefs, which reversed a conviction where the prosecutor repeatedly framed the defendant as an——evil— figure and injected religious rhetoric. Defense counsel said the prosecutor—s use of —evil— here, though fewer iterations than in Cawthorn, was the theme of the opening to the closing and merited reversal or a new trial if the court found the use improper.

Ward replied that the analogy to Cawthorn was inapt. He acknowledged the prosecutor used the word —evil— in the argument but said it was limited in number and context and was accompanied by evidentiary recitation rather than pervasive religious or moral invective. Ward invoked the appellate rubric the parties discussed (referred to in argument as the Judge factors) for determining whether an improper closing mandates reversal: the intent and context of the prosecutor—s remarks, the availability and timing of curative instructions, and the strength of the State—s proof. Ward argued those factors weighed against reversal here because the statement was brief, the trial court had instructed the jury about deciding the case on evidence alone and not on counsel—s arguments, and the underlying evidence of the attack was corroborated by a 911 call and other testimony.

Throughout the hearing the panel asked questions about what acts short of a completed sexual offense would constitute a —substantial step— and sought examples from both sides. Defense counsel pointed to the lack of evidence about the defendant—s outward conduct indicating an intent to penetrate, while the State pointed to the combination of threats, the presence of a knife, orders to disrobe, attempts to restrain the victim, and physical force.

At the end of argument the court took the matter under advisement and said it would issue an opinion. No oral ruling was announced at the hearing.

The appellant remains Mr. Simons; the victim at trial is Rachel Jones. The record highlights cited repeatedly in argument include the victim—s trial testimony, a 911 call placed after the incident, testimony by the victim—s son, and a responding officer—s report. The parties referenced appellate decisions identified in argument as Fowler/Follard, Bullard, and Cawthorn (Tennessee Supreme Court, 1999).

If the court finds the evidence insufficient as to the specific intent element, that could require reversal of the attempted aggravated sexual assault conviction; if the court finds the prosecutor—s remarks were so improper as to prejudice the jury under the relevant appellate factors, the court could order a new trial. The court did not indicate a timetable for filing its written opinion.