State vs. Joey Salcido

Defendant Joey L. Salcido was indicted by the Giles County Grand Jury for three counts of incest and three counts of rape of a child. Following a jury trial, Defendant was convicted of three counts of aggravated sexual battery as a lesser-included offense of child rape and acquitted of the charges of incest. On March 15, 1999, the trial court sentenced Defendant as a violent 100% offender to a term of twelve years for each of his three convictions and ordered that all sentences be served consecutively. On April 15, 1999, thirty-one days after Defendant's judgment was entered, Defendant filed an untimely motion for new trial. The motion was nevertheless heard on April 19, 1999 and denied on April 20, 1999. On April 23, 1999, Defendant filed a notice of appeal which was also untimely due to the late filing of Defendant's motion for new trial. On May 25, 2000, Defendant filed a motion to waive the timely filing of his notice to appeal and on June 7, 2000, this Court granted Defendant's motion. In this appeal Defendant raises the following issues: (1) whether the Defendant's conviction of aggravated sexual battery, an offense which was neither charged in the indictment nor a lesser-included offense of the offenses charged, was error; (2) whether, assuming aggravated sexual battery is determined to be a lesser-included offense of child rape, the trial court erred in its jury instruction regarding the mental state necessary to convict him; (3) whether the trial court erred when it admitted certain evidence over Defendant's objections; (4) whether the cumulative effect of the trial court's errors renders the trial fundamentally unfair so as to offend Defendant's due process guarantees; and (5) whether the trial court erred when it imposed consecutive sentences. Defendant asserts that his first issue concerns subject matter jurisdiction and, therefore, must be heard by this Court pursuant to Tenn. R. App. P. 13(b). Defendant also urges this Court to exercise its discretion under Tenn. R. Crim. P. 52(b) or Tenn. R. App. P. 13(b) and consider the remaining four issues. After a thorough review of the record and applicable law, we find no errors requiring reversal and affirm the judgment of the trial court.